Premium Care Homes Ltd v Commission for Social Care Inspection [2006] EWCST 838(EA) (07 June 2007) 

Premium Care Homes Ltd
(Appellant)

-v-

Commission for Social Care Inspection
(Respondent)

[2006] 0838.EA

-Before-

Mrs. C. A. Singleton (Chairman)
Ms. C. Joffe
Dr. S. Ariyanayagam

Heard at the offices of the Care Standards Tribunal at Pocock Street, London from 16th to 20th April, 2007, inclusive.

Representation

1.The Appellant was represented by Mr. P. Engelman of counsel. The Respondent was represented by Mr. M.Curtis of counsel.

Appeal

2.The appeal lay against the Notice of Proposal to Cancel Registration issued by the respondent on 3/08/06 under section 17 of the Care Standards Act 2000, in respect of Penhellis Care Home, Helston, Cornwall. The tribunal was provided with a bundle of papers comprising 2080 sheets of evidence. That bundle was added to both in the period immediately preceding the hearing and during the hearing itself. An amended schedule of allegations was provided which, in itself, amended the details in the proposed notice of cancellation which was the subject of this appeal. In the final analysis, the tribunal was asked to make decisions regarding alleged breaches of Care Homes Regulations, regulation 7, regulation 10, NCSC Registration Regulations, Regulation 13 and 14, Regulation 19, Regulation 25 and Regulation 26. The burden of proof lies with the Respondent.

Preliminary Matters

3. Application was made by Mr. Engelman on behalf of the Appellant, for the evidence of the Solicitors Disciplinary Tribunal in respect of Mr. Awan, who was the Operations Manager of PCH ( the Appellant Company) at the relevant time, and the subsequent findings and decision of the Court of Appeal to be excluded from the hearing. That application was opposed by Mr. Curtis on behalf of the Respondent. Having heard legal argument from both sides, the tribunal allowed the Appellant’s application under regulation 14 (3)(1) of the 2002 Procedural Regulations.

Background Information

4. On 15/03/04, the Appellant, Premium Care Homes Limited (PCHL), became the Registered Provider of Penhellis, a care home with nursing providing care for a maximum of 33 service users within the categories of Old Age not falling within any other category, Physical Disability and Terminally Ill. The directors of PCHL were Mrs. Isabelle Awan and Mr. Arnaud de Malglaive, neither of whom had any previous experience of managing or carrying on a care home. By an agreement dated 16th February, 2004 between the Appellant and Sarfaraz Awan the Appellant engaged Mr. Awan as its Operation’s Manager. In that capacity he was to (inter alia):
(a) attend from time to time Penhellis House Nursing Home
(b) coordinate with the Matron and the Responsible Individual of Penhellis, the management of staff, the daily care of service users, and the supply of goods and services to Penhellis
(e) communicate directly with the Commission on behalf of the Company with regard to any issue relating to the provision of care at Penhellis and to implement any directions which the Commission may reasonably require.

5. Document 243 of the papers is a letter dated 18/02/04 signed by Mr. Awan on behalf of the Appellant. It states “The Company structure was devised by our accountant and was solely tax driven so that I could operate at arm’s length and invoice the Company for my professional services. However my wife Mrs. Awan owns 100% of the shares in the Company and is a director and Company Secretary. The other director Mr. De Malglaive was appointed to the Board solely under a condition of his loan agreement with the Company in order to protect his financial interest. He takes no part in the day to day operations of the Company save that he is informed of all decisions which might affect him....................You will see from the enclosed Consultancy Agreement that my job description is very comprehensive and places the responsibility of managing Penhellis fully on my shoulders.”

6. On 23/02/07 a Winding up Petition filed by the Inland Revenue was served on the Appellant.

7. On 12th April 2007 a Validation Order was made by Mr. Justice Pumphrey

Evidence for the Respondent.

John McEachern

8. Mr. McEachern is a Regulation Manager for the Respondent responsible for the inspection and regulation of care services in the west of Cornwall and the Isles of Scilly. He is the manager of Paul Freeman, Regulatory Inspector responsible for the respondent’s dealings with the Home.
He gave evidence as to the position with regard to the Home at the date the hearing commenced, dealing with matters that were changing on an almost daily basis. 
In cross examination Mr. McEachern agreed that Mr. Awan was not the Registered Provider and that he was not the Manager of the Home. He was referred to his statement at page 1862 of the papers, in particular the  details appertaining to the meeting which took place between him, the former owner of the Home, Stephen Baber, Inspector for the respondent and Mr. Awan. This meeting took place pre-registration. Paragraph 5 of his statement states that Mr. Awan told him he was a solicitor, had experience of legal work with care homes and had got the Registered Managers Award. No notes exist of these comments. According to Mr. McEachern, this is because the conversation took place after the meeting had concluded. He stated that he did not attach any particular importance to it save for the fact that it had been said.  At this stage, Mr. McEachern assumed that Mr. Awan would be the registered provider. It was not until the Respondent received the application for registration that he realized Mr. Awan formed no part of it. Having made enquiries of the Appellant Company as to who would be appointed to deal with the registration on its behalf, a reply was received that it was Mr. Awan. Having received a copy of the consultancy agreement, Mr. McEachern believed that Mr. Awan was the person in control of the Home. He accepted that the Home’s Statement of Purpose does not specify that Mr. Awan is a solicitor and it states that he has undertaken the RMA award, not that he has actually attained it.

9.   Evidence was given by Mr. McEachern as to the alleged matters relating to the appointment of a Responsible Individual in accordance with the Regulations. Regulation 7 deals with the fitness of a registered provider and the responsibilities of a registered provider when it is an organisation to appoint a RI who, inter alia, must satisfy those requirements in relation to fitness placed on a registered provider. According to Mr. McEachern the RI represents the company, he is the person with whom CSCI will deal. As part of the registration process, the Respondent takes steps to clarify whether the RI is fit, which includes written evidence and an interview. When there is a change of RI, they ask for evidence of checks made by the organization as to whether the person is fit. The company nominates who they consider to be fit to be RI and, if CSCI assesses that person as fit, they agree. 

10.  The first RI was David Carmichael who, in the words of Mr. McEachern disappeared after a short while until a further regulation 26 report was received from him in 2006. In May 2004 a pre inspection questionnaire from the Home states that “Responsible individual will be Mrs. Victoria Osborne”. (Page 380). However, page 562 is a letter from the appellant, signed by Mr. Awan and dated 29/07/2004 setting out that he has been appointed RI by the appellant in place of Mr. Carmichael. By 11/08/04 a proposal had been received that Victoria Osborne be appointed RI. This was done in a telephone conversation made by Mr. Awan (Page 565). However Mrs. Osborne had not yet agreed to this and by April, 2005 had been dismissed. Page 833 is a note of a meeting which took place on 27/04/2005 between the parties. One of the bullet points reads “Mr.de Malglaive confirmed that Mr. Awan would be the Responsible Individual for the care home”. Mr. McEachern accepted that Mr. Awan  had been “stepping into the breach” when he undertook this position but stated that his appointment would still be subject to him satisfying the Respondent as to his fitness in accordance with the regulations. In answer to a question from a member of the Tribunal he pointed out that the role of RI is crucial to the regulatory relationship and that, even if a RI is in the post short term, they still need to be totally compliant with CSCI. They are the point of contact with the Company and it is still expected that they will satisfy the requirements of fitness. “We need to be sure that the Company has done its job properly and vetted that person”.
 
11.  On 15/09/05 the Appellant nominated Wendy Doel as RI

12.  The evidence then turned to the allegation made by Mr. Awan that another registered provider, David Elsmore, is a friend of Mr. McEachern. It had been alleged by Mr. Awan at a meeting with Paul Freeman that Mr. Elsmore, who was negotiating to purchase the Home, had, as a consequence of a conversation with Mr. McEachern, reduced his offer. Mr. McEachern took this to mean that Mr. Awan was suggesting that he had behaved in an inappropriate manner. In fact, subsequently, Mr. Awan, on behalf of the Appellant, had asked for an undertaking to be given by the Respondent before any further financial information was provided by him. Mr. McEachern denied any relationship with Mr. Elsmore other than in his role as a regulation manager. He is not a friend. He does not know him socially. He accepted that the Appellant required an undertaking from the Respondent and that no such undertaking had been given. However the reason for this was that there is an established complaints procedure which the Appellant Company had been invited to invoke once the allegation had been made. The Appellant had not pursued that complaints procedure and Mr. McEachern formed the opinion that the alleged conversation with Mr. Elsmore had been used by the Appellant Company as an excuse not to provide financial information which had been requested by the Respondent on a number of occasions.

12.  As to financial matters, Mr. McEachern confirmed that requests for financial information had been made over a long time. He stated “For years we’ve tried to get statements and a meeting with the Company. We don’t know what indebtedness there is. This Company has failed to deal with us in a transparent fashion. The figures keep changing. I can’t get any sense”. Such was the failure by the Appellant to provide the Respondent with financial information that a Statutory Requirement Notice was sent to the Appellant on 6/04/06. The Appellant Company did not respond to that either. Mr. McEachern stated that this failure to comply with the Notice was serious. “Where a provider does not engage, CSCI cannot ensure that service users are safeguarded.”

 Diana Penrose

13.  Ms. Penrose is a Regulatory Inspector for the Respondent and has assisted Paul Freeman in his inspections of the Home. 

Paul Freeman

14.  Mr. Freeman is an Inspector for the Respondent. He is the Lead Inspector for the Home. He told the tribunal that from May 2004 up to the date of the hearing there had been a series of issues which had caused him concern. These included management issues, financial management of the Home and its viability. His statement is at page 1896 of the bundle. Paragraph 8 of that statement states “Mr. Awan gave me the clear impression he was a practising solicitor”. In oral evidence, he confirmed that Mr. Awan never said that he was a solicitor but he talked about his legal training and legal background. Mr. Freeman’s belief that Mr. Awan was a solicitor he saw as a bonus but he considered the fact that he believed Mr. Awan to have attained the RMA a key element in the registration because neither Mrs. Awan or Mr.de Malglaive had any background in care provision.

15.  Mr. Freeman’s statement sets out the history of his dealings with the Appellant Company. Concerns as to the lack of information provided by the Appellant emerges as early as 22/10/04 when Mr. Freeman writes to the Appellant expressing that concern. Letters had been sent on a number of occasions which had elicited no response, or not the required response. Mr. Freeman comments “A pattern of delayed response or a failure to reply to letters appeared to be in place”.

16.  He was asked as to whether it is important for a RI to be a nurse. He said that in his view it was not so necessary but that a RI should be aware of nursing requirements and could be advised by a district nurse or others. He stated that Mr. Awan had taken on the role of RI on two occasions. On the first occasion he had been nominated following the resignation of Mrs. Stenning. Subsequently Victoria Osborne had been nominated. Following Victoria Osborne’s dismissal, he had been nominated again. Subsequently Wendy Doel had been nominated. On each occasion of the nomination of Mr. Awan as RI, requests had been made of the Appellant Company for information regarding his fitness. None had been provided. He commented “It is very difficult for us to be satisfied that the Regulations are being complied with if we are not receiving the information requested. It impinges on our ability to carry out the responsibilities that the legislation places on us.”

Victoria Osborne

17.  Ms. Osborne’s statement is at page 1950 of the bundle. She was employed by the Appellant as care home manager from 1/07/2004 until 12/04/2005 when she was dismissed.. She confirmed that as well as being the Registered Manager of the Home she had been asked by Mr. Awan to take on the role of RI. She did not, however, agree to do this. By December 2004 she had concerns about the financial status of the Home. She was aware that Income Tax and National Insurance payments were not being forwarded to the Revenue. This is information she gave to the Respondent. She had asked Mr. Freeman not to disclose what had happened to Mr. Awan but his reply had been that he could not keep matters confidential if it was not in the best interests of the service users. 

18.  Her application to be Registered Manager was on hold. She said that she had felt unable to make up her mind about whether or not to pursue it. She felt very isolated and needed to speak to Mr. Awan about her concerns. She stressed that her application had been put on hold, not withdrawn. She pointed out that the Appellant Company itself had put her registration on hold pending the decision of the Respondent in response to the Appellant’s request to vary the Home’s registration. In cross examination a note of the meeting she had with Mr. Awan culminating in her dismissal was put to her. This note was produced by Mr. Awan. Much of the contents were disputed by Ms. Osborne as not being an accurate account of what had happened. Indeed, she made the point that, at no time during the Employment Tribunal process which she undertook following her dismissal was this note produced by the appellant.

19.  The RI when Mrs. Osborne was first appointed was David Carmichael. She only met him once or twice and said that she would not have discussed any issues with him because she felt he was not interested in the job. Mr Awan was the person she would go to for key decisions. He would come to the Home for a couple of days and stay in a hotel. She would not then see him for 5 weeks. She felt the organisation was erratic and muddled. Throughout the period of her employment she had concerns about the financial situation of the Home. She raised those concerns with Mr. Awan. One creditor was threatening legal action and on one occasion Mr. Awan asked her to pay a bill with her own credit card. She told the tribunal that her concerns about the finances were ongoing up to the point of her dismissal. She informed the tribunal that because of non payment of money due to her from the Appellant as a result of the proceedings she initiated before the Employment Tribunal, she has a charge on the Home.

David Carmichael

20.  The statement of David Carmichael appears at document 1958 of the bundle. He was the first RI of the Home following the Appellant’s registration. He told the tribunal that when Mr. Awan approached him to be RI Mrs. Stenning was the manager. He understood that the role of RI merely required him to fill in some forms, interview some service users and not a lot more.. He states he was never a director or manager for the appellant, nor was he a secretary or officer of the Company. He was never responsible for supervising the management of the Home. His comment to the tribunal was that Mrs. Stenning was more than capable of doing it.

21.  He was shown the document which appears at page 225 of the bundle. This is an agreement dated 10/01/2004 between himself and the Appellant Company. This engages him as General Manager of Healthcare Services and sets out his duties in that role. However, Mr. Carmichael told the tribunal that he did not recall signing this document. The tribunal noted that the document at page 225 is not signed by either party. Mr. Carmichael’s understanding of his role as RI was merely that his name “would be on the wall” and he would do regulation 26 reports.

22.  He confirmed that he would have attended an interview with the Respondent following his appointment as RI in order for his fitness to be established. He could not recall if he had been asked to produce a contract and he did not recall referring to the document at page 225 in that interview. He did, however, concede in cross-examination that he carried out the duties specified in the Agreement but did not think that much supervision had been required. Mrs. Stenning was a very able manager.

23.  His recollection was that his involvement as RI came to a halt when a new matron was appointed who he believed was happy to be RI. This was the result of a conversation he had with Mr. Awan who made it clear he would no longer be needed.

24.  He was asked to do one more report towards the end of 2005. He could not recall the circumstances in which he was asked. In that report he mentioned that people had expressed concerns to him about the finances of the Home. He felt the content of this report was particularly important and, therefore, sent a copy directly to the Respondent. Prior to this he had sent reports to Mr. Awan and he had forwarded them on to the Respondent. In this last case, Mr. Carmichael wanted to ensure that the Respondent had a full report and that the contents of his report had not been tampered with so he sent it direct. In that final report, both Wendy Doel and the Administrator of the Home had expressed their concerns over finances. Money was coming in which had been earmarked for improvements or maintenance of the Home but was used to pay off debts. He told the Tribunal that both of them had been concerned about the finances and the possibility that the Home would “go down” if the situation persisted. Both Wendy Doel and the Administrator were in a difficult position, both being employees of the Appellant. They asked Mr. Carmichael to send a true and accurate report to the Respondent.

Evidence for the Appellant

Sarfaraz Awan

25.  Mr. Awan is the Operations Manager of the Appellant Company and also its Company Secretary. He said he was made a director of the Appellant Company but was not one at the point of registration. He was the only witness to make a statement on behalf of the Appellant and the only witness to give oral evidence to the tribunal. He states that he is authorised by the Appellant Company to conduct matters on their behalf.

26.  He began his evidence in chief by explaining to the Tribunal what the current position was relating to the financial affairs of the Appellant. He had received the winding-up petition referred to at paragraph 6 above on 26/02/07. On the following day he met with Abbey Bank. He told the Tribunal that there was an “in principle” agreement that Abbey Bank would discharge the petition debt fully. An itemised account of debts marked “SA2” and exhibited to Mr. Awan’s supplemental statement shows that the debt to the Inland Revenue, the subject of the winding-up petition was, at the date of the hearing, in excess of £117,000. In addition the current debt to the Revenue amounted to a further £36,000, making a total debt to the Revenue of over £153,000. Further debts itemised on the list make a total indebtedness of £832,000. Mr. Awan stated that the accounts had been prepared by Saleemi Associates, the accountants for the Appellant and had been prepared independently. A copy of those accounts was provided to the Tribunal. They were unaudited. Mr. Awan stated that the Home had been valued at £1.4 million and that he had arranged with Abbey Bank for the debts to be discharged by a loan. In his view the Home is financially viable.

27.  He confirmed that on 13/04/07 the Appellant had been served with a notice by Cornwall Social Services terminating their contract with the Company. The intention of Social Services was to remove 14 residents from the Home for whom finance was provided by Cornwall County Council as soon as alternative accommodation could be found.

28.  Mr. Awan was asked questions about his role in the Appellant Company as Operations Manager and how it came about that he was given that position. He was not required to complete an application form. He was not required to produce a CV because both Mrs. Awan and Mr. de Malglaive, the two directors of the Company, were already aware of it.. He was not required to provide details of any previous experience or his qualifications because they were already known to the directors, one of whom was his wife and the other was a family friend. He was asked what the criteria had been for deciding whether he was suitable to be Operations Manager and he replied that the directors were aware of his legal experience and that he had commenced a course at Bedford College for the RMA.

29.  He explained how he had had to have a career change. The two directors and he were looking for a safe investment and from about November 2002 they explored many care homes together. The Appellant Company was set up in November 2002, each director investing £100,000. Nether director had any experience of care homes. Mr. Awan had legal experience in this sector but had no intention of running a care home. The appellant Company’s intention was to acquire a care home project. Failing businesses were sought with the intention of improving them. Mr. Awan’s intended role was that he would set up the management structure and ensure compliance with the Regulations.

30.  In terms of running the Home, Mr. Awan maintained that he was detached from it although he accepted that his involvement was greater than either of the two directors. However he received reports and passed them on to the directors and maintained that they had remained fully conversant with the developments regarding this appeal.

31.  He agreed that he performed his duties under the contract on page 234 of the bundle and that the point of contact from the Respondent had been him. However he stressed the fact that he did not carry on the Home, the Registered Manager did that.

32.  Mr. Awan makes all the financial decisions relating to the Home. However, there are no board meetings because they are all friends.

33.  As to his suitability to be Operations Manager, he stated that the directors were not in a position to say whether or not Mr. Awan would be suitable. At the date of his appointment as Operations Manager, they were only aware of his legal experience and that he was undertaking the RMA award. However, they did have a good manager in Mrs. Stenning and relied on her and the Administrator.

34.  He was asked about his bankruptcy. Mr. Awan was made bankrupt on 21/05/03. That bankruptcy was discharged on 1/04/05. He confirmed that, when he was appointed Operations Manager, one director, Mr. De Malglaive did not know he had been made bankrupt. He did not tell him because it was not relevant in that Mr. Awan stated that his job had been to improve facilities and the education of the staff.

35.  Mr. Awan was struck off the Roll of Solicitors in 2001. Initially he stated that Mr. De Malglaive had not known that he had been a solicitor. This comment was swiftly amended when he said that, in fact, Mr. De Malglaive had known he was a solicitor because Mr. Awan had represented him in a court case. He confirmed that, when he was appointed Operations Manager, Mr. De Malglaive was under the impression that he was still a solicitor. Mr. Awan did not intend to mislead him. He was embarrassed about the striking off. Some friends knew he had been struck off. He denied emphatically ever having told Mr. McEachern or Ms. Osborne that he was a solicitor.

36.  He was asked about the position of RI. He denied that he was the obvious person to be put forward at registration. He emphasised that he was a manager and the person responsible for supervising the management at the home. Mr. Carmichael was the RI. He, Mr. Carmichael, was not a director of the Company or the Secretary or a manager, he was a consultant manager in accordance with the alleged agreement referred to above. Mr. Awan denied that Mr. Carmichael had been given that title to bring him within Regulation 7. He stated that Mr. Carmichael had been wrong in his evidence when he said that it had been a paper exercise. Mr. Awan also denied that it had been a way of he himself avoiding attending a fit person interview. He told the tribunal that, even if he had attended such an interview and disclosed the information relating to his bankruptcy and his striking-off, it would not have made any difference. He maintained that he did not have the relevant experience to hold the position of RI. He had legal experience but no experience in the intricate running of a care home. He did not feel qualified to take on this role. It is not just a case of managing the manager, he said, you have to have some clinical expertise. You are looking at the nursing practices at the Home. He had tried to appoint Mrs. Stenning to be RI and when she indicated that she intended to retire the position was offered to Bruce Ritchie. He did not complete the process and therefore Victoria Osborne was offered the position when she became manager. Wendy Doel was also appointed with the intention of her being both RM and RI. Part of the reason for Mr. Awan not being RI was the fact that he lives in Bedford. It takes 6 hours for him to get to the Home. He cannot instantly deal with problems at the Home because of the distances involved. Those are the reasons for him not being RI.

37.  He was asked as to whether every worker at the Home had to be a fit person within the meaning of the Regulations. He agreed that they did but that he had not been a worker.

38.  Mr. Awan was then referred to the Service User Guide at page 251 of the bundle. Mr Awan confirmed that the sentence “Mr. Awan has over twelve years experience of the care homes sector, and has undertaken the Registered Managers Award” was inserted by him. (The award has not actually been attained by him but certificates were produced at the hearing suggesting that he had enrolled for the course and attended some of the teaching). Mr. Awan stated that the purpose of this sentence was to indicate that he had done something relevant. He has never said that he has the RMA. How people interpret the sentence in the Service User Guide is a matter for them.

39.  Mr. Awan was referred to the notes of a meeting which took place on 27/04/05 which are at page 833 of the bundle. He denied that these notes were an accurate account of that meeting. Specifically he disputed the sentence “Mr. De Malglaive commented that Mr. Awan was in operational control of the care home.” He denied that this was ever said and suggested that the note had been produced following the disclosure to the Respondent that he had been struck off the Roll of Solicitors and that this note had been designed to put the Appellant in a bad light.. The Respondent received information relating to the striking off in August 2005. Mr. Awan stated “The author of this document constructed it to fit in with allegations.” He has asked for the original notes but they have never been produced until the bundle of evidence was compiled for these proceedings. Those do not tell the whole story of the meeting according to Mr. Awan. He told the Tribunal that he would identify the missing parts  during a break in the proceedings. In the event, this point was not revisited by Mr. Awan. The statement in the notes which reads “Mr. De Malglaive’s interests in the Home were as financial backer” was disputed. Mr. Awan denied that this was said.

40.  Mr. Awan was referred to page 1672 which is part of a written note taken during the meeting between the parties on 27/04/05. That says, inter alia, “Mr. A. Direct control of business”. Firstly, Mr. Awan said that he did not believe the note was genuine. Then he stated that he accepted that what had been demonstrated during this piece of cross-examination had removed his suspicion.

41.  Mr. Awan went on to say that his role as Operations Manager had never changed. He deals with problems at the Home, finances, raising funds. He described how he had been “fire fighting” for two years.

42.  By December 2004, the Appellant Company was contemplating closing the Home. There was a cash problem. There were too many staff and not enough residents. Despite this situation the Appellant did not send the requisite notice under Regulation 13 to the respondent. Mr. Awan questioned what would have been the purpose of this in view of the fact that the Respondent already knew of the financial problems, having been told by Ms. Osborne and through their inspections at the Home. When it was pointed out to Mr. Awan that the law required it to be done, he replied “I accept that it is the law.” However, he stated that the Company was still trading and paying bills. Importantly, the residents at the Home did not suffer. He did not accept that in December 2004 the company was not financially viable or not likely to be within 6 months. He did not accept that he should have sent a regulation 13 notice. He wanted a meeting with the Respondent and traded through the problem.

43.  Mr. Awan was asked about the fact that Ms. Osborne had stated that he had been the only point of contact for her and that all queries and decisions were to be directed to him. He said that the fact that she only ever contacted him was a matter of her choice. It is correct that he wanted all queries to be directed to him because he was the person who could deal with problems. He again denied that he was carrying on the Home. 

44.  Mr. Awan’s habit was to sign a full book of cheques and leave it with the Administrator. She had day to day administration of the finances. Any capital expenditure was referred to Mr. Awan.

45.  Mr. Awan was then asked as to his dealings with Ms. Osborne. He stated that she had been employed to take on the role of both RM and RI. He disputes her recollection of what happened stating that Ms. Osborne agreed from the outset to take on both positions.

46.  Mr. Awan was referred to page 562 of the bundle which is a letter dated 29/07/04 signed by him on behalf of the Appellant. It states, inter alia, “Mr. Awan has been appointed the “Responsible Individual” under Regulation 7(2)(c) and 26 of the Care Homes Regulations 2001 in place of Mr. David Carmichael.” He agreed this was true. Page 563 is a letter from the Respondent replying to the letter from the Appellant requesting information to establish whether or not Mr. Awan is a fit person. Mr. Awan agreed that he did not send the items requested but said he had not merely chosen to ignore it. A response had been requested by 9/08/04 . Page 565 is a contact sheet entry relating to a phone call from Mr. Awan dated 11/08/04 stating that Ms. Osborne would be nominated as RI and that Mr. Awan would meet the obligations under Regulation 26.  He denied that he continued to be RI. He stated that Ms. Osborne had accepted the post.

47.  Mr. Awan was again referred to the measures taken by the Appellant to establish that he was a fit person. He said that nobody addressed the question. It was assumed. The Company consists of family friends who all know each other. They were already satisfied. He does, however, accept that correct procedures should have been followed and that this experience has been a salutary lesson to them all. The RI was always intended to be the RM because of the distance the directors and he live from the Home. He said it was not his decision to put himself forward as RI, it was the directors. They knew of his integrity and good character. He confirmed that Mr.de Malglaive had not known that he was a struck off solicitor at the time but that he now knows it and considers it to be irrelevant.. He did accept that for a director of the company not to know this was poor practice. He agreed that it is important for the Respondent to assess a person as to fitness and that they should be provided with the relevant information to enable them to do this.

48.  Mr. Awan was then taken through all the correspondence in the bundle where requests for information were made by the respondent, specifically information relating to himself, which remained unanswered. He agreed that the open way to have dealt with these requests would have been to reply to them. He would have been able to supply references. The reason he did not reply was not because he wanted to avoid revealing that he had been struck off and was at that stage an undischarged bankrupt. Technically he accepted that he should have responded but said that his focus had been on Ms. Osborne who was to be appointed RI. He insisted that she had consented to this and it would have been pointless to go through two procedures when, in reality, the RI was always going to be Ms. Osborne.

49.  Page 592 is a statutory requirement notice dated 14/11/05 notifying the appellant that they are in breach of regulation 19 of the Regulations in that they have failed to provide evidence as to fitness of Mr. Awan in his role as Operations Manager. This notice requires written representations from the Appellant by 28/11/2005. It was not responded to. 

50.  Page 603 is a letter dated 30/11/04 from the Respondent to the Appellant asking once again for evidence of Mr. Awan’s fitness. Mr. Awan agreed that the Appellant did not respond. He told the Tribunal that the reason had been because Ms. Osborne was going to be RI .He revisited his evidence relating to Ms. Osborne, reiterating that it was always the intention that she would be RI as well as RM and had always agreed to be so. However, he commented that “I can’t argue that we failed to provide information requested”.

51.  Following Ms. Osborne’s dismissal Mr. Awan again accepted the role of RI. Page 819 is a letter from the Respondent to the directors of the Appellant Company, asking for details to enable the Respondent to determine the question of fitness. It was not replied to. At the meeting on 27/04/05, the notes of which appear at document 833, Mr. Awan and Mr. De Malglaive “commented that the information requested would be sent to the Commission and any future requests would be dealt with”. Mr. Awan agreed that this had been said.

52.  Page 836 is a letter sent by Mr. De Malglaive to the Respondent. It states “Mr. Awan will shortly provide you with the information you have requested”. It was not provided. Mr. Awan said that whether or not he was fit had never been an issue with the Appellant. He did agree that, at the time, Mr. De Malglaive was unaware he had been struck off. He agreed that it was bad practice to appoint him without considering his suitability. Mr. Awan told the tribunal that he regretted not providing the information. Mr. De Malglaive had specifically told him to deal with it. However, Wendy Doel had been appointed as RM and RI and Mr. Awan was merely filling in the gap. He was preoccupied with other things. He said that the directors were aware he had not provided the information but did not consider it to be a disciplinary offence. It was never a concern. By letter dated 15th September 2005 the Appellant had written to the Respondent stating that Wendy Doel was to be appointed RI.

53.  Page 1009 of the bundle is a letter dated 11/10/2005 from the Respondent to Mr. De Malglaive setting out the details relating to several concerns. They are identified as management arrangements, fitness of the operational manager and financial viability. The letter requests, inter alia, confirmation that the Appellant as registered providers carried out the requirements of regulation 19 of the Care Homes Regulations regarding Mr. Awan. In cross examination Mr. Awan said that regulation 19 did not apply to him because he was not employed to work at the Home.

54.  Mr. Awan was unable to estimate how many times he had been to the Home in the previous 3 years. He would hazard a guess at 20 to 21 times. His purpose in visiting the Home was to deal with issues at the Home and discharge his duties as Operations Manager.

55.  It was put to Mr. Awan that the Appellant continually failed to provide information when it was requested. A further example of this was on page 1048 of the bundle where a letter dated 11/11/05 to Mr. De Malglaive from the Respondent asks for a response to an earlier letter concerning the appointment of Wendy Doel as RM and RI. Mr. Awan confirmed that he saw this letter although by this point in time the Respondent had stopped communicating with him and were writing to the two directors of the Company. He stated that as far as the Appellant was concerned the Respondent had already been provided with the relevant information. Ms. Doel had made her application in which she had included her CV and evidence as to fitness. She had also been provided with a job description of a matron’s duties by the Appellant and it was a matter for her to pass it on to the Respondent.

56.  Further correspondence was put to Mr. Awan demonstrating the failure of the appellant to reply to requests for information. Mr. Awan denied that it took 4 months for information to be given but accepted that any delay had been poor practice. He accepted reasonable criticism and said there would be no repeat of this history. He stated that, on behalf of the Appellant, he was saying that they should always be open and transparent. However he had had to deal with an officer from the Respondent, Paul Freeman, who had been at odds with him from the outset. Insofar as the requests for financial information were concerned, Mr. Awan had reasonable grounds to believe that the information sought by the Respondent would be inappropriately used. Whilst the Appellant had wished to be open and transparent it felt constrained by its concerns. The Respondent had not been open and honest with the Appellant.

57.  Mr. Awan expressed the concern created by the use of the word “fraud” in a letter dated 18/08/05 from Mr. Freeman to Mr. De Malglaive. It reads” The Commission are concerned about the circumstances of the alleged fraud that is cited in the Law Society’s decision to remove Mr. Awan from the register of practising lawyers”. (Mr. McEachern in his evidence to the tribunal had said that the use of the word “fraud” had been his responsibility and accepted that it had been an inappropriate word to use.) Mr. Awan told the Tribunal that the use of the word fraud, its consequences and the proceedings before the Tribunal showed that the Respondent had not been honest in its dealings with the Appellant. The Respondent had, he said, suggested he had been dishonest or fraudulent in his management of the Home, The Respondent had also been untruthful. Mr. McEachern is a controlling person and Mr. Awan had asked for Mr. Freeman to be replaced. The Inspectors met everything as a challenge. If it had not been for them, relationships would have been better.

58.  Mr. Awan was then taken to correspondence in the bundle requesting details as to the financial situation and requests for meetings with the directors. He accepted that concerns as to finance occurred within three months of the Appellant taking control. Mr. Awan said that the information was not provided because the Appellant had asked for an undertaking that the information would not be disclosed to a third party and for the Inspectors to be changed. The Appellant had no confidence in the Inspectors for the Respondent. The appellant would have had no difficulty in dealing with someone else. He told the tribunal that from August 2005 there had been fraudulent allegations and requests from the Appellant for information to substantiate those allegations. Minutes of meetings provided had been inaccurate and handwritten notes of those meetings were also inaccurate. He stated “We do not refuse to deal with the Commission. We refuse to deal with people who bully us”.

59.  He was referred to letters dated 11/10/05 and 6/4/06 from the Respondent. He said the letters were not ignored. The Appellant did not wish to have a meeting with Mr. Freeman and Mr. McEachern. The Appellant desperately wanted a meeting with someone else.

60.  By a letter dated 15/02/06 from the Appellant to the Respondent, a copy of accounts for the first year of trading was sent to the Respondent. An undertaking as to non disclosure was again requested. The Appellant was, at that stage, unable to provide accounting information for the year ending 31/3/2006 because details were with the Appellant’s accountants. Mr. Awan said that he phoned Mr. McEachern and told him that he had authorised the bank to provide the Respondent with the information they required but Mr. McEachern refused to do this. 

61.  The undertaking requested by the Appellant from the Respondent was not forthcoming. The Appellant provided no further information. Mr. Awan admitted that this might have been wrong but said there was a climate of mistrust. He had not deliberately sought to frustrate the Respondent. The culture of mistrust had been created by Mr. McEachern and Mr. Freeman. The Appellant had been on the verge of sacking the manager who had not contacted Mr. Awan for 3 months. She had raised a grievance against Mr. Awan which was being dealt with by Mrs. Awan. Mr. Awan was excluded from it. Ms. Doel had taken sick leave to avoid seeing Mr. Awan. He had to go to the Home unannounced in order for his movements not to be reported to the Respondent. He has, however, not held this against Ms. Doel. She has told him she felt used and manipulated by the Inspectors.

62.  A Statutory Requirement Notice was issued on 6/04/06 relating to the lack of financial information. Mr. Awan accepted that the Appellant did not respond to it.

63.  He was referred to the amended schedule of allegations and the Appellant’s responses to it. Those responses make no reference to the winding-up petition. He accepted they were inaccurate but said that there was an agreement with the Inland Revenue at the time. At the time of the Appellant’s responses Mr. Awan had been made a director. He took full responsibility for those responses. Mr. De Malglaive knew about the petition but the failure to mention it was Mr. Awan’s mistake and he accepted responsibility. He had intended to pursue the appeal regardless of the petition. It was his hope that funding would have been available prior to the proposed advertisement of the petition. On 27/02/07 a meeting with the bank gave a 6 week timetable. A valuation of the property was arranged but there was a conflict. Mr. Awan was unaware of this until he enquired as what progress was being made. Had he been aware of it he  would not have served the responses to the schedule of allegation or his witness statement knowing they were inaccurate. At his meeting with the Abbey on 27/02/07 he disclosed everything including the winding-up petition.

64.  It was put to Mr. Awan that, during the course of the hearing, Instructing solicitors for the Respondent had spoken to the Inland Revenue as to the history of this matter. He accepted that the note produced to the Tribunal relating to that conversation was accurate.

Evidence as to the financial position

65.  Mr. Engelman relied on the accounts put forward by the Appellant in the form of unaudited accounts from Saleemi and Associates. Mr. Curtis relied on the report from Grant Thornton, accountants on behalf of the Respondent.

The Tribunal’s Findings

 “Employment” or “Engagement”? 

66.  In opening for the Appellant, counsel proposed that there is no contract of employment between the appellant and Mr. Awan. There is merely a contract for services. The Tribunal had the benefit of reading the contract of engagement which is referred to above and is dated 16/02/04. The agreement between the Appellant and Mr. Awan details the duties required of an operations manager. The purpose of the legislation is to protect service users and the intention of the regulations is to include all who work at a Home whether directly for the registered provider or for third parties. On balance, the tribunal was satisfied that Mr. Awan was employed by the Appellant for the purposes of the Regulations.

 Did Mr. Awan work at the Home?

67.  His contract required him to attend the Home from time to time. Clause 2.1(b) states that he is to “co-ordinate with the Matron and the RI of Penhellis, the management of staff, the daily care of service users, and the supply of goods and services to Penhellis”. He was twice appointed by the Appellant as RI, with responsibilities which included Reg 26 visits and reports. His own evidence to the Tribunal was that he estimated he had visited the Home on 20 to 21 occasions during three years and had gone there in order to discharge his responsibilities as Operations Manager. As stated above, the purpose of the legislation is to protect service users. It is not the case that a person would need to be at the Home on a full time basis in order to fall within the legislation. On the evidence presented by Mr. Awan at the hearing, the Tribunal considered, on balance, that he worked at the Home.

The Question of Fitness

68.  It is common ground that Mr. Awan has been struck off the Roll of Solicitors. The Respondent alleges that Mr. Awan told Mr. McEachern that he was a solicitor.  Ms. Osborne told the tribunal that he had told her he was a solicitor. Those allegations were strenuously denied by Mr. Awan at the hearing. There is no written record of these alleged statements. As pointed out by Mr. Awan at the appeal, to hold oneself out as a solicitor when one is not is a criminal offence. On balance, the Tribunal was not satisfied that Mr. Awan said he was a solicitor.

69.  It is common ground that Mr. Awan was an undischarged bankrupt at the date of registration. He was not discharged from that bankruptcy until April 2005. The only provision in the regulations relating to bankruptcy is with regard to a registered provider. That provision does not, therefore, apply to Mr. Awan.  Evidence from Mr. McEachern and Mr. Freeman was that bankruptcy would not necessarily render Mr. Awan unsuitable as a RI. On balance, the tribunal did not consider that bankruptcy, in itself, rendered Mr. Awan unfit.

70.  It is alleged by the Respondent that Mr. Awan told the Respondent that he had obtained the Registered Managers Award. That allegation is strenuously denied. The Service Users Guide referred to at paragraph 36 of this decision states that he has undertaken the award. Mr. Awan enrolled for the course and attended lectures. Exactly how much of the course was completed is unclear. The argument put forward by Mr. Awan that what is stated in the Guide is technically correct was found by the tribunal to be unsatisfactory. The statement, phrased as it is, is misleading, It is reasonable to suppose that anyone reading this phrase would conclude that Mr. Awan had attained the RMA. Certainly, that was the impression formed by the Respondent. According to Mr. Freeman, weight was given to this at registration because the respondent was aware that neither of the directors had any experience of working in the care home sector.

71.  The tribunal considered that the question of fitness is of importance, not simply in terms of whether the allegations render Mr, Awan unfit but whether appropriate steps were taken by the Appellant to establish his fitness and provide evidence of it to the Respondent in accordance with the requirements of the Regulations.

Regulation 19

72.  Regulation 19(1) states “ The registered person shall not employ a person to work at the care home unless-

(a) the person is fit to work at the care home

(b) subject  to............., he has obtained in respect of that person the information and documents specified in paras 1-9 of Schedule 2”

Schedule 2 sets out the information and documents required in respect of persons carrying on, managing or working at a care home. 

73.  For the reasons set out above, the Tribunal was satisfied on balance that Mr. Awan was employed to work at the Home. It follows, therefore, that regulation 19 applies to him. The Tribunal was not persuaded by paragraph 22 of the Appellant’s opening nor was it persuaded by paragraph 11 of the Appellant’s observations on the Respondent’s closing submissions. Regulation 19(2) to (4) are concerned with persons employed by a person other than the registered person. That is not the case here.

74.  Regulation 19 requires the registered provider to satisfy himself as to the fitness of an employee. The Respondent wrote to the Appellant on several occasions between 30/07/04 and 11/11/05 to establish that the required checks had been carried out with regard to Mr. Awan’s fitness. On 14/11/05 a Statutory Requirement Notice was served requesting confirmation that checks had been carried out. No evidence was provided by the Appellant, then or subsequently.

75.  The evidence from Mr. Awan was that Mrs. Awan was obviously aware of the fact that he was an undischarged bankrupt at the date of registration and she was aware that he had been struck from the Roll of Solicitors. However, his evidence was that Mr. De Malglaive was not so aware. No checks were made to comply with this regulation. Mr. Awan argued that this was because they were all friends and there were no formal meetings. Furthermore, once Mr. De Malglaive became aware of those facts, he considered them to be irrelevant. However, the tribunal considered that this did not mean that the Appellant could effectively circumvent the Regulations, whether intentionally or not. The Appellant was required to satisfy itself as to Mr. Awan’s fitness under this regulation and to obtain the necessary documentation to do this. It failed to do this and, therefore, is in breach of Regulation 19.

Regulation 7

76.  Regulation 7 states, inter alia. That “A person is not fit to carry on a care home unless the person------ is an organisation and ------the organisation has given notice to the Commission of the name, address and position in the organisation of an individual(the “responsible individual”) who is a director, manager, secretary or other officer of the organisation  and is responsible for supervising the management of the care home and that individual satisfies the requirements in paragraph 3”. 
Those requirements are that “he is of integrity and good character and.............full and satisfactory information is available in relation to him in respect of the following matter......... The matters specified in paragraphs 1 to 5 and 7 of Schedule 2.”

77.  The appellant argues that he was never the Responsible Individual because, although he was proposed as RI on two occasions by the Appellant, those proposals were only ever in circumstances where he was having to “step into the breach” and, in any event, his appointment as RI was never confirmed by the Respondent. 

78.  When the Appellant was first registered, the person appointed as RI was David Carmichael. Although a contract between him and the Appellant is in the bundle  at page 225, it is unsigned. In oral evidence, Mr. Carmichael  did not recall this document and certainly did not recall ever having signed it.. As stated above he was at pains to tell the Tribunal that he was never responsible for the supervision of the management of the Home. The Tribunal considered that appointing Mr. Carmichael was an expedient arrangement. He thought all he was responsible for was the preparation of Reg 26 reports. No evidence was given that he was ever interviewed as such by the Appellant before being appointed. However, it is clear that he was interviewed by Mr. Freeman before his appointment was confirmed so the Respondent could assess fitness as part of the registration process. Whether the alleged contract was produced at that interview is not established by the evidence. However, according to Mr. Carmichael, he did not sign it, had never seen it and, by his own evidence, he ruled himself out of satisfying the criteria by stating that he was not an officer of the Appellant company at any time. His only role was limited to Reg 26 reports.

79.  Whether or not Mr. Awan was proposed as RI to fill in the interim periods between Ms. Osborne and then Ms. Doel proposed appointment, the fact remains that, during those interim periods, Mr. Awan was effectively the RI. The Tribunal considered that a significant reason for him never being formally approved as RI by the Respondent was the failure of the Appellant to provide them with the information which would have enabled them to approve or disapprove. In proposing him as RI, the Appellant had to consider his fitness. Regulation 7 specifically requires them to do this. What steps were taken by the Appellant to satisfy Reg 7? The evidence from Mr. Awan was that no such steps were taken because they all knew each other. However, it was clear to the Tribunal that not all the directors of the Appellant company were  in possession of all the information which would have enabled them to make a decision. Mr. De Malglaive did not know Mr. Awan had been struck off nor did he know that, at the time, he was an undischarged bankrupt. The fact that the directors of the Appellant  and Mr. Awan were known to each other before his proposed appointment does not absolve the Appellant from fulfilling its duties under the Regulations. The tribunal found, on balance that the Appellant was in breach of Regulation 7.

Regulation 26

80.  Regulation 26 states:

(2) Where the registered provider is an organisation......., the care home shall be visited....by - 
(a) the responsible individual or one of the partners, as the case may be.
(4) The person carrying out
 the visit shall (inter alia) prepare a written report on the conduct of the care home.
The regulation further states that a visit shall take place at least once a month and a copy of the written report will be provided to, amongst others, the Commission.

81.  It is common ground that no Regulation 26 reports were produced during the periods that Mr. Awan was proposed as RI. As stated above, the Tribunal found that he was, effectively RI during those periods, whether formally approved by the Respondent or not. The Appellant failed to require Mr. Awan to produce the reports. It is in breach of this regulation.

Regulation  25

82. Regulation 25 states -
(1) The registered provider shall carry on the care home in such a manner as is likely to ensure that the care home will be financially viable for the purpose of achieving the aims and objectives set out in the statement of purpose.
(2) The registered person shall, if the Commission so requests, provide the Commission with such information and documents as it may require for the purpose of considering the financial viability of the home.........

83.  It is common ground that the Appellant failed to respond to requests for information from the Respondent. The explanation for this is that the Respondent failed to give an undertaking once relations had broken down between Mr. Awan on behalf of the Appellant and Mr. McEachern and Mr. Freeman for the Respondent. The Tribunal did not consider that the refusal of the Respondent to provide such an undertaking absolved the Appellant from complying with this regulation. The evidence is that not only did the Appellant fail to comply with requests for financial information, it failed to respond to a Statutory Requirement Notice. The Appellant is in breach of this Regulation.

Regulation 13 NCSC(Registration) Regulations 2001

84.  Regulation 13 states - 
“If it appears to the registered person that the establishment or agency is likely to cease to be financially viable at any time within the next following six months the registered person shall give a report to the Commission of the relevant circumstances.”

85.  Evidence from Mr. Awan was that the Home encountered financial difficulties shortly after registration. Evidence from Ms. Osborne was that she was very concerned at the financial situation whilst she was employed by the Appellant. PAYE and National Insurance contributions on behalf of the appellant’s employees had not been forwarded to the Inland Revenue, resulting in a winding-up petition being presented in February 2006. A disputed debt of £20,000 is owed to Npower. The Appellant has maintained that, at all times, the Home has been financially viable. The tribunal did not consider this to be the case. The fact that Mr. Awan, on behalf of the Appellant says that he is able to raise finance to discharge all debts is insufficient to absolve the Appellant from the realities of the situation and the statutory requirement on the Company to comply with the Regulations. The Tribunal was concerned to note that, despite Mr. Awan’s assertions that finance was available through the Abbey Bank, no documentary evidence of this as a definite agreement was produced in support of that assertion. The accounts produced by Saleemi Associates on behalf of the Appellant are, significantly, unaudited. The Tribunal did not consider that they could be relied on without seeing all the relevant financial records for Penhellis and the information Saleemi Associates were provided with before drafting the accounts.

86.  The final Regulation 26 report for May 2006 produced by Mr. Carmichael expresses concerns for the financial viability of the Home.

87.  The Tribunal found that the precarious position of the Home was a matter which should have been reported under Reg.13. The fact that Mr. Awan appears to have been trying to rectify the situation,  (he described himself as having been constantly fire-fighting), does not absolve the Appellant from their responsibility under this regulation. The Appellant is in breach of this regulation.

Regulation 14 NCSC (Registration) Regulations

88.  Regulation 14 states:
“The following grounds are specified....... as grounds on which the Commission may cancel the registration.....-
(a) he has failed to pay at the time prescribed under subsection (3) of section 16 of the Act the annual fee payable by him by virtue of that subsection.”

89. The Appellant failed to pay the registration fees for 2004, 2005 and 2006 on time. The fees for 2007 have not been paid but the Appellant’s bank account has, in any event, been frozen.

Regulation 10 Care Home Regulations

90. Reg 10 states:
“(1) The registered provider and the registered manager shall, having regard to the size of the care home, the statement of purpose, and the number and needs of the service users, carry on or manage the care home ...........with sufficient care competence and skill.

(2) If the registered provider is -
(b) an organisation, it shall ensure that the RI undertakes from time to time such training as is appropriate to ensure that he has the experience and skills necessary for managing the care home.”

91.  On balance, the tribunal found that the Appellant had delegated to Mr. Awan the responsibility for carrying on the Home on its behalf. The agreement detailing his appointment as Operations Manager is comprehensive. By letter dated 18/02/04, signed by Mr. Awan he states “The company structure was devised by our accountant and was solely tax driven so that I could operate at arm’s length and invoice the Company for my professional services. However my wife Mrs. Awan owns 100% of the shares in the Company and is a director and Company Secretary. The other director Mr. De Malglaive was appointed to the Board solely under a condition of his loan agreement with the Company in order to protect his financial interest. He takes no part in the day to day operations of the Company save that he is informed of all decisions which might affect him......
You will see from the enclosed consultancy agreement that my job description is very comprehensive and places the responsibility of managing Penhellis fully on my shoulders.”
Furthermore, the evidence from witnesses attending the hearing was that, for the most part, Mr. Awan was the point of contact. Only when relations broke down between the Inspectors and Mr. Awan did Mr. De Malglaive become involved. Indeed, Mr. Carmichael stated that he had never heard of him. Significantly, so far as the Tribunal is concerned, neither Mrs. Awan nor Mr. De Malglaive provided witness statements for the appeal. They did not attend to give oral evidence either.

92.  The Tribunal found, on balance, that the Appellant failed to show that the Home had been carried on with sufficient care competence and skill. The Company failed to satisfy itself that Mr. Awan was suitable to be employed as Operations Manager with the range of responsibilities set out in the consultancy agreement and the intention that he would be responsible for managing the Home as set out in in his letter referred to in paragraph 91 above. It failed to satisfy itself that he met the fitness requirements of Regulation 7 when appointing him to be RI, and to provide the relevant information requested by the Respondent. It failed to ensure he undertook Regulation 26 visits and provided reports of those visits to themselves and the Respondent. The Appellant has been found to be in breach of Regulations 25 and 13 regarding the provision of financial information requested by the Respondent. It is in breach of Regulation 10.

The Tribunal’s Conclusions

93. The Respondent has responsibilities placed upon it by statute. Its duties are set out in legislation. A significant purpose of the Respondent’s existence is to protect service users and to ensure their well-being. In order to do this they are, to a large extent, dependant on organisations providing information to prove that they and the people who work for them are fit, in this instance, to operate a care home with nursing for very vulnerable people. The Respondent has to adhere to statutory requirements as does the registered provider. In order for those requirements to be fulfilled a dialogue is of paramount importance.

94.  The Tribunal considers that it is significant that the Respondent had no contact with anyone other than Mr. Awan until the meeting with Mr. De Malglaive in April 2005. Prior to that point Mr. Awan had conducted all negotiations, and,as stated above, had indicated to the Respondent that the management of the Home “rested squarely on his shoulders”.

95.  Initially, there appeared to be a good working relationship between the Respondent and Mr. Awan, but as early as July 2004, he was failing to respond to repeated requests for information from the Respondent.  From that point, there follows a catalogue of persistent failures to respond.  Evidence before the Tribunal, both oral and in the bundle, demonstrated very clearly that letters were repeatedly ignored and promises were made to provide information that were never kept. Indeed, the level of the Appellant’s failure to co-operate was such that the Company even failed to respond to two Statutory Requirement Notices.

96.  The Tribunal accepted that Mr. Awan had spent most of his time “fire-fighting” but did not consider that it was acceptable to use this as a reason for him, on behalf of the Appellant, to ignore perfectly reasonable requests from the Respondent for information to which they were not only entitled but was also necessary for them to carry out their statutory function.

97.  This failure to provide documentary evidence has persisted up to and including the date of this decision. In the Appellant’s written closing submission, paragraphs 65 and 66 both refer to matters which, it is stated, will be supported by the production of documents. Those documents have not been produced.

98.  The reason behind the Appellant’s failure to produce information on request is unclear. Whether it is, as suggested by the Respondent, because Mr. Awan thought he would not pass the test of “fitness” required, or whether it is because Mr. Awan had lost confidence in the Inspectors, as suggested by the Appellant, the bare fact remains that the information was not supplied. The resulting atmosphere of suspicion was inevitable.

99.  The Tribunal did not form the impression that Mr. Awan had been open and transparent in his dealings with the Respondent or, indeed, with Mr. De Malglaive, who appeared to have been unaware of Mr. Awan’s personal circumstances for much of the relevant time. The fact that Mr. Awan assured the Tribunal that Mr de Malglaive on discovering the true position considered it to be irrelevant is not the point. The fact remains that openness did not appear to be of particular importance in Mr. Awan’s dealings, either with the Respondent or, apparently one of the directors of the Appellant Company. The Tribunal was unable to ask any questions of Mr. De Malglaive as to what he did or did not think. He provided no statement and did not attend as a witness. On his own admission on several occasions in cross-examination Mr. Awan agreed that mistakes had been made in the way that he, on behalf of the Appellant, had dealt with the Respondent.

100.  The Appellant is in breach of several regulations as set out in detail earlier in this decision. A common theme is the lack of transparency and the history of unanswered requests for information, and it is this that the Tribunal considered to be its most serious conclusion in this appeal. The Commission for Social Care Inspection cannot carry out the obligations which legislation has placed upon it if registered providers, for whatever reason, fail to provide information that is reasonably requested. It cannot fulfil its function of protecting vulnerable service-users if its attempts to establish the situation prevailing in a Home are persistently frustrated. That situation cannot be allowed to continue.

101.  The Tribunal concluded, on balance, that the cancellation of the Company’s registration is a proportionate response in all the circumstances.

102.  The appeal is dismissed.

103.  This is a unanimous decision.

Mrs. C. A. Singleton (Chairman)
Ms. C. Joffe
Dr. S. Ariyanayagam

7 June 2007