Onyerindu (The Lime Trees Residential Care Home) v Commission for Social Care Inspection [2007] EWCST 1041(EA) (21 July 2008)
Aloysius Onyerindu (Appellant)
(The Lime Trees Residential Care Home)
-v-
Commission for Social Care Inspection (Respondent)
[2007] 1041.EA
[2008] 1269.EA
Before:
Ms Maureen Roberts (Nominated Chairman)
Ms Christa Wiggin
Mr Richard Beeden
A hearing held on the 14, 15, 16, 17 18, 22, 23 April 15, 16 21, 22 May and 2, 3 July 2008 at the Care Standards Tribunal Pocock Street London.
The Appellant was represented by Ms Hodgson of Counsel. He gave evidence.
The Respondent was represented by Mr M Mullins of Counsel instructed by Mr. N Grant of Bevan Britton Solicitors. The Tribunal heard from Joyce Maggiulli Registration Inspector, Brian Bowie Regulation Inspector, Jane Ray Regulation Inspector, Duncan Patterson Regulation Inspector, Fay Bennett part of the Regional Enforcement team, all employed by the Respondent. We also heard from social workers from the placing authorities namely, Marian Custance Duty Manager of the Enfield Older People's team, Sara De Witt Team Manager for Older People at Haringey Council, Evon Graham Care Manager for Haringey Council, Carolyn Myers Senior Practitioner in the London Borough of Camden's Assessment and Management Team North.
- The Appellant appeals against the refusal by the Respondent to vary conditions imposed on his registration in 2003. The Appellant has registration for 16 residents with the category Old Age, not falling in to any other category- code OP. He clarified at the hearing that he wishes to be able to admit in addition, clients with a primary need or diagnosis of dementia- code DE, mental disorder – code MD and physical disability – code PD. The Respondent opposes this extension of categories.
- The certificate issued in 2003 stated that the Appellant was registered for 16 OP and placed six conditions on the certificate, one of which, number 5, prohibited the Appellant admitting residents 'with a diagnosis of dementia, learning disability physical disability or mental health illness'. It is this condition that is at the heart of this case.
- At the hearing the Respondent made it clear that they no longer opposed the removal of conditions 1 to 4 which related to how particular rooms could be used. The Respondent also indicated that they would not oppose the removal of condition 6 which stated that the top floor of the premises were not registered for the use of clients subject to certain clarifications by the Appellant. Those clarifications were given during the course of the hearing: the top floor was not and would not be used by residents of the home.
- The Respondent failed to notify the Appellant of his right of appeal against the conditions on his registration certificate (including the category OP). This matter was addressed by the deputy president at a case conference on the 6 March 2008. It was agreed that the appeal would be treated as an appeal against the imposition of the conditions in 2003. It would be open to the Tribunal to find that the conditions were validly imposed or, if it found that they were not, it could still of its own motion impose either identical or different conditions. So the Tribunal could hear the arguments in relation to the 2003 conditions at the same time as the appeal against the refusal to vary one or more of them. In that way whichever way the Tribunal decided the matter the Appellant would have the opportunity to argue his case to be allowed to admit the categories of users he sought in his application to vary conditions made in October 2006, as clarified and amended at the tribunal.
- Under s. 21 of the Care Standards Act 2000 the Tribunal has power:
a. To confirm the decision of the Respondent to impose the conditions above in whole or in part or to direct that some or all of them shall not have effect.
b. To:
i. vary any condition for the time being in force in respect of the establishment …
ii. to direct that any such condition shall cease to have effect; or
iii. to direct that any such condition as it thinks fit shall have effect in respect of the establishment or agency'.
- The tribunal considered whether this allowed them to alter the category of service user in the home. We were referred to Commission for Social Care Inspection (CSCI) guidance for Inspectors: "How we process applications and use conditions of registration": December 2007. This guidance makes it clear that the imposition of category of service, gender of service users, primary care needs on admission of service users and age range of service user are all appropriate conditions to attach to a registration.
- The Respondent submitted that the meaning of the categories DE, MD, PD is clear. To include a category means that persons with these needs as a primary diagnosis or need on admission may be admitted. The corollary is that these persons need a specialised service catering for their needs in addition to their needs related to old age. The Respondent further submitted that the meaning of category OP (Old age not falling within any other category) is equally clear in that it expressly excludes people with a primary need or diagnosis falling into one of the other categories on admission. The corollary is that people falling into this category do not need as specialised a service. The fact that such service users may have to some degree needs in these specialist areas does nor alter the position. Neither does the possibility that such a person may develop, to some degree, needs in such a specialist category while resident change that position. How long such a person remained at a home not specialising in their particular mix of needs would be determined through the normal process of needs review against the ability of the home to meet those developing needs and of course the client's wishes.
- The central issue between the parties is what category of service user is to be permitted to be admitted to the home. All parties agreed that, subject to any right of appeal, the Respondent would issue a certificate to reflect the conditions varied or directed by the Tribunal and record on it the categories and numbers as decided by the Tribunal and directed under section 21(5).
- The tribunal makes a restricted reporting order under Regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal. Regulations 2002 (the Regulations), restricting the reporting of the names of residents involved in the case and directing that reference to them shall be by their initials so as to protect their private lives.
Background.
- In September 1994 the Appellant applied to the London Borough of Enfield for registration to admit service users in the categories old age, mental disorder other than mental handicap past or present ;Adults over 65 years of age. In January 1995 the London Borough of Enfield granted the Appellant a registration for 8 people in category 1 namely Old age. This registration varied slightly in the coming years in that the Appellant at one point had a registration for 2 of the residents to be EMI i.e. Elderly Mentally Infirm. In 2002, when the National Care Standards Commission (NCSC) took over inspection the registration was for '6 people of either sex in categories; 6 x Older People.
- On the 30 July 2002 the NCSC issued a certificate for 6 people of either sex in the category 'Old age not falling within any other category'.
- In 2001 the Appellant had applied to the London Borough of Enfield to increase the number of service users. The home had been extended to accommodate 16 beds. This application was transferred to the National Care Standards Commission and the Appellant completed one of their forms on 10 July 2003 requesting an increase in numbers and to admit service users in the categories of 'Dementia and Old Age'.
- The home was inspected for this purpose and a certificate issued increasing the numbers to 16 and imposing conditions on room use and, as noted above, condition 5 prohibited the admission of residents with a diagnosis of dementia, LD/PD and mental health conditions.
- In 2004 the Respondent Commission for Social Care Inspection (CSCI) took over the functions of registration and inspection from NCSC and there followed a series of inspections of the home: 23 March 2004, 19 May 2004, 2 November 2004, 12 and 14 April 2005, 15 November 2005, 25 April 2006. It is fair to summarise the reports as finding the home to be adequate and trying to improve. A number of requirements were imposed at each inspection.
- On the 8 June 2006 there was a meeting between the Appellant and the Respondent to discuss an improvement plan, and the Appellant's intention to apply to admit persons with dementia was raised with the inspector. The Appellant agreed to delay applying for this variation until he had a new manager. He applied for a variation in conditions on 25 October 2006 "We the Lime trees residential home apply to vary a condition of registration to include other category of service user i.e. clients with conditions like mental and physical disabilities, such as senile dementia, Parkinson's disease, rheumatoid arthritis, recovering alcoholism".
- The inspection programme by the inspectors continued with an inspection on 7 November 2006 when the home was re-graded as 'poor'. There followed a meeting between the Appellant and the Respondent on 20 December 2006 and the issuing of an Enforcement notice on 27 December 2006. On the 30 January 2007 three statutory Requirement Notices were issued to the Appellant and a Notice of Proposal to impose conditions on the Appellant namely, that he cease to admit new residents until the outstanding requirements were complied with. This condition was imposed on the 13 March 2007. The requirements related to 'all necessary training for the manager and staff in order to meet the needs of the service users at the home'.
- As a consequence of the Appellant's application to vary the conditions of the home's registration a registration inspector visited the home on the 2 December 2006, by prior appointment, to inspect for the variation in registration. She informed the Appellant that she did not consider the variation would be granted at present. She invited him to concentrate on the improvements requested by the inspecting team and to withdraw his application. The Appellant did not withdraw. The Inspector recommended that the variation be not granted.
- By a letter of the 19 February 2007 the Respondent informed the Appellant of its proposal to refuse the Appellant's application. The Appellant made observations on this. On the 16th May 2007 the Respondent notified the Appellant of its decision to refuse the application to vary. The letter of 16th May 2007 stated:
"I note that your application dated 31.10.2006 is seeking approval to service users with demanding needs. On the 07.11.2006 a key unannounced inspection of the service took place. The inspection found that a number of important areas of concern had not improved. These were areas where National Minimum Standards and the Care Home Regulations 2001 were not being met and had been the subject of previous requirements. Two areas were of particular concern; the failure to obtain a CRB check for a new member of staff and the admission of a service user outside the category of registration for the service. As a result the Inspector's general assessment of the service was revised down from adequate to poor.
A strategy meeting with the local office was held with you in December 2007. At that meeting specific and serious concerns were raised with you about the overall performance of the service in meeting requirements made by CSCI and operating within the care homes regulations 2001. A timescale was set for you to prepare an action plan and comply with it.
The evidence provided from an unannounced inspection of the 03.04.2007 demonstrated the progress you have made to operate and manage the service within the regulations and meet the requirements made of you by CSCI. Nevertheless there are still some significant and outstanding issues yet to be addressed.
You will receive a key inspection this year, which will assess, at that time, the progress you have made on the remaining issues. At that time the Inspector will review the quality rating of the service.
In the interest of residents and potential residents of the home I believe that it would not be appropriate for you at this present time to be given permission to accept and care for people with demanding needs. If the service can demonstrate enough improvement to be judged as being an adequate service then it may be that a different decision will be reached should you decide to make a further application.
Therefore it is my decision to adopt the notice of proposal to refuse your application to vary conditions of registration dated 19.02.2007".
- The Appellant appealed to the Tribunal on the 18th June 2007. He put as his grounds of appeal:
a. The Regional Director's letter was not borne out by the evidence.
b. The decision was "biased, prejudiced and unilateral".
c. Withdrawal in another case by the Respondent was "clear vindication of my case that these areas of concern have now been addressed".
d. "We have operated the Lime Trees since 1995, a period of 13 years, and since that time some of my past service users have the various conditions now applied for: This is itself is a clear demonstration of our knowledge, experience and competence in these areas of care."
e. The "manager, myself and almost all the staff at the Lime Trees have extensive knowledge, experience, qualifications etc. to provide quality care service to the client group that we are applying for.
- On 28 June 2007 there was a further inspection which noted improvements and that most requirements had been done. Admissions were re-commenced. There were follow up inspections on 20 and 26 July 2007 because the inspectors knew that the manager put forward for registration had been provisionally placed on the PoVA list and not recommended for registration. They wished to verify the management arrangements. Following the inspection on 26 July the Inspector completed an Adult Protection Alerting Form which was sent to the Adult Protection team in the London Borough of Enfield. Their main concern was the "poor management of the home and the potential impact this could have on the welfare of the residents".
- As part of this procedure there were three Adult Protection strategy meetings on 1 & 29 August and the 1 October 2007. As a result of the concerns raised at the meetings the placing authorities reviewed their residents and all except one were removed from the home. We noted that the service user who remained did so because he refused to move.
- This remained the situation at the time of start of the hearing in that the home had one resident. The Respondent agreed that there was no bar on the admission of new service users and that the home remained subject to inspections in the normal way. The most recent inspection had been on the 28 February 2008. All outstanding matters save one had been complied with and two requirements were made. We heard from the relevant inspector.
- One additional matter of background was the situation relating to the registered manager at the home. From about March 2003 the registered manager was a Mrs Eckeumo. During her time as manager many inspection requirements remained unfulfilled and were repeated at subsequent inspections. In the summer of 2006 the Respondent and the Appellant discussed her performance and long term future in this post. In the event she continued to work in the home until late 2006.
- In January 2007 Mrs Woodley was appointed as the acting manager; she was only a temporary appointment. On 5 April 2007 the Appellant reported that Grace Jesuorobo had been placed by an agency to be the new manager. However when she applied for registration on 7 June 2007 checks revealed that she had been provisionally listed on the POVA list and was not suitable. At the inspections on 20 and 26 July 2007 there was no registered manager at the home and that remained the position for some time. On the 4 December 2007 the Appellant informed the Respondent that he was intending to be the provider/manager of the home.
The Evidence
- The Tribunal had eight ring folders of evidence amounting to some 2400 pages together with some further 200 pages of additional documents presented during the hearing. We heard from the Respondent's witnesses as listed above. We heard from the Appellant. We had copies of all the Inspection reports. We have summarised the evidence under the headings:
- the outcomes of the inspections with reference to the seven categories of standards used by the Respondent in their pro-forma inspection reports (Choice of Home, Health and Personal Care, Daily Life and Social Activities, Complaints and Protection, Environment, Staffing, Management and Administration);
- management and administration as a separate item as this was the standard of most concern to the inspectors;
- the events leading to the Vulnerable Adult Protection procedure and its outcomes;
- the provision of a manager;
- suitability of the premises for the additional categories; and
- the suitability of the Appellant to be the provider manager of a home with the additional categories requested.
- The respondent uses a standard form of inspection report which towards the end lists the 'Requirements' of the inspector consequent on the inspection. These are numbered and the relevant National Minimum standard and Regulation is cited. We noted that the Respondent has a system which enables inspectors to assess a number of standards in each category and to give a score: 4 Standard exceeded, 3 Standard met, 2 Standard almost met, 1 Standard not met. A sheet in the inspection report records all the scores and gives an overall rating for the home based on the scores. However in addition three standards (Health and Personal Care, Complaints and Protection, and Management and Administration) are considered as key areas and if a standard in any one of those areas is considered to be poor then the overall rating for the home will be poor even if the scores in all the other areas are 2s, 3s and 4s. The Appellant had a score of 1 in November 2006 in Management which resulted in the overall rating of his home being poor.
Registration issues
- Joyce Maggiulli is a registration inspector with the Respondent. She had carried out the inspection in 2003 that had resulted in the increase in numbers from 6 to 16. She said that the Respondent granted the increase in numbers partly because the application had been in the pipeline for a long time (it had originally been made to the London Borough of Enfield see paragraph 12) and it was felt that the Appellant would be successful if the NCSC refused and he appealed.
- Mrs Maggiulli told us that she had put the original conditions on the registration (as set out in paragraph 2 above) because she did not think that the Appellant had produced evidence to show that he understood what was needed to look after people with 'such demanding needs'. Subsequently it emerged that the procedure adopted by the Respondent's predecessor, the National Care Standards Commission, in imposing conditions of registration dated 24th October 2003 did not comply with the requirements of section 17 to 19 of the Care Standards Act 2000 in that the Appellant was not told of his right of appeal.
- Ms Maggiulli carried out the inspection in December 2006 with regard to the application to vary the conditions of registration. She said that there had been inadequate preparation for the proposed changes in categories of user for example a revised 'Statement of purpose' was not available. She was aware of the current status of the home as poor and, having inspected the home herself, advised the Appellant to put the outstanding inspection issues right before trying to increase the categories of service user that he was wanting to cater for.
- She said to us that it would be highly unlikely for a home with only 16 beds to be granted such a wide registration. In the case of a much larger and perhaps purpose built facility it could be considered because different categories of service user could be in different units with staff trained to care for the particular category.
- In addition she commented that the layout of the home was not suited for wheelchair users as the corridors were narrow and there was no separate area for residents with dementia.
- Ms Maggiulli went on to explain that the previous inspecting body had imposed conditions in order to reinforce the category of user and that CSCI had adopted the registration certificates unaltered on assuming the responsibilities and liabilities of NCSC. However the Respondent did not consider that the detailed conditions as imposed by NCSC was now good practice and that the conditions imposed in the past were being reviewed and, if inappropriate, removed.
- She also made the point that the market for the care of older persons had changed greatly in that older people were now living longer and being cared for at home. Placing authorities were unwilling to place older people unless they had physical and/or mental health needs which required additional care. She said homes taking such persons "must know what they are taking on."
- Two of the Respondent's inspectors, Brian Bowie and Duncan Patterson, who have been recently involved with inspections of the home took the view that it would be difficult to cater for such a wide mix of categories of residents as the Appellant had requested because of their differing requirements. Mr Bowie said that in principle there would be no objection to a mix of OP and DE provided that all the resources staffing and training etc. were in place. He acknowledged that elderly residents may develop dementia and placing authorities do not want to have to move them.
- The Appellant has registration for sixteen residents. We noted the approval given in 2003 for the increase in numbers. The Appellant has recently changed a bedroom into an additional sitting room with the intention of using it for residents with dementia and therefore his highest occupancy number now would be fifteen.
The outcome of the inspections
- As noted above the Tribunal had all the Inspection reports for the home. We saw the report from the first inspection by NCSC on 15 and 16 July 2002. At that stage the home was being expanded. There were four residents in the home who all said that they were satisfied with the care they received. The Inspectors (David Hastings and Francis Czuba) expressed concern that residents had complex needs and that the provider needed to be careful that he did not breach his conditions of registration e.g. by accepting people with mental health needs and dementia. They did not consider that the care plans were detailed enough for the residents, no written evidence of staff training was available, the registered manager worked the majority of her time as a care worker and there was confusion as to who was managing the home.
- Duncan Patterson, who gave evidence to the Tribunal took over as the lead inspector in 2003 and inspected it on 9 and 18 September 2003. At that stage the Appellant had completed the extension to the property and had applied for a variation to increase the number of residents to 16. On the day of the inspection there were 5 residents in the home. Mr Patterson said he had concerns about service user plans, staffing, recruitment and training and general management issues. There were nine requirements outstanding from the previous inspection and further requirements were made bringing the total to 36. Because of his concerns it was agreed that there would be a further inspection in November 2003.
- On 24 October 2003 Joyce Maggiulli wrote to the Appellant to inform him that his application to vary his registration had been granted for 16 residents. However the conditions, noted above (inter alia prohibiting the admission of residents with a diagnosis of dementia, LP/PD and MHI), were placed on the registration.
- Mr Patterson carried out a further inspection on 28 November 2003. He said that he had ongoing concerns about the lack of appropriate risk assessments, lack of staff training and poor recruitment practices. He was also concerned at the lack of activities for residents. Some requirements had not been complied with e.g. staff training in adult protection issues. As a result of the inspection, 22 requirements were issued 14 were restated from the September report and 8 new ones were issued. Mr Patterson then ceased to be the lead inspector and had no further involvement with the home until November 2007.
- There were inspections on 23 March, 19 May and 2 November 2004. There were ongoing concerns about staff training, recruitment records and supervision. However the Appellant had responded to most of the requirements and the residents and families expressed satisfaction with the care provided in the home.
- In April 2005 Brian Bowie was appointed the lead inspector for the home and carried out his first inspection on 12 and 14 April 2005. On his first inspection he said that he noted the family atmosphere of the home and the positive feed back from residents and their relatives. He noted two aspects of the environment of the home which was not conducive to older people in that the lighting was poor and the corridors narrow and in one place sloping. He was concerned that there did not appear to be many activities for residents. With reference to management he found that the Appellant took a long time to find records, however when produced they were in order. Five requirements were issued as a result of the inspection.
- Mr Bowie's next inspection was on 15 November 2005. He said that some things had improved and he was told that an Occupational Therapist report on the premises was being carried out. A number of new areas for improvement were identified and 12 requirements imposed. Mr Bowie said that he considered that the Appellant was responding to requests.
- At Mr Bowie's next inspection on 25 April 2006 the manager was not present at the inspection (it was unannounced). 8 requirements were restated and 7 new areas identified. New time scales were set. Again the residents and families were recorded as satisfied with the home which was homely. However there were concerns with residents care plans, daily activities for residents, the lack of an OT assessment of the living environment, staff supervision, consultation with staff and residents about the running of the home and record keeping. The staff did not have a programme of training and in particular needed training in dementia and adult protection. The Appellant told Mr Bowie that he was considering applying to be able to admit residents with dementia; Mr Bowie was concerned by this proposal bearing in mind his view of the shortcomings in the running of the home.
- Mr Bowie said that he was concerned that the Appellant was in effect the manager but that in his view he did not grasp the requirements of the National Minimum Standards; he would respond to a requirement rather than initiate good practice. The Appellant said that he was looking for a new manager and requested assistance from Mr Bowie in the recruitment of a manager.
- On 8 June 2006 the Appellant attended a meeting with the Respondent (Mr Bowie and Rebecca Bauers a Regulation manager and Mr Bowie's line manager) to discuss the Respondent's concerns going through the recent inspection report and to check how the Appellant was planning to improve the home. The Appellant again stated his intention to apply to vary his registration to take the additional category of residents with dementia. He said he needed to do this to maintain his business and, that he was going to recruit a new manager. The Appellant submitted an action plan to the Respondent.
- On the 8th August 2006 there was a complaint received by the Respondent from a District Nurse who wished to remain anonymous. She said that a respite resident at the home, PW, with diabetes was not being properly cared for in that her diabetes was not being managed and that the hygiene of the home did not seem good. On further investigation it appeared that PW had dementia and there was concern that the Appellant had admitted the resident in breach of his conditions of registration. The Appellant maintained that PW had been resident before on respite admissions. On this occasion she had been an emergency admission and that she had a urinary tract infection which had made her confused and unwell. He disputed the diagnosis of dementia. He also said that he had complained to the District Nurse about treating the resident in a public area, namely the lounge.
- Mr Bowie conducted an unannounced inspection on 7 November 2006. He noted that no change of manager had occurred. He had concerns that CRB checks had not been carried out for some staff before their being employed and no training carried out regarding Adult protection issues. He also looked at the records of the respite resident, PW, about whom there had been a complaint that her diabetes was not being managed and that she had dementia. Mr Bowie concluded on the evidence that the resident PW did have dementia and that the Appellant had admitted her in breach of his conditions of registration. The home now had an official rating of 'poor'.
- On the 31 October the Appellant had applied to vary the categories of resident. The registration officer who dealt with this was Joyce Maggiulli. She inspected the home on the 19 December 2006 and recommended that the application be refused, leading to the present appeal.
- On the 20 December 2006 there was a joint meeting between the Appellant, his wife, Mr Bowie and Rachel Bauer. The points raised in the inspection report were gone through and the Appellant agreed to prepare an action plan.
- On the 17 January 2007, the Appellant had notified the Respondent that he had secured the services of a new manager Mrs Woodley. Subsequently on 30 January 2007, the Respondent had issued three statutory requirement notices and a notice of proposal to impose conditions that the Appellant cease to admit residents until the outstanding requirements were complied with and that the manager had carried out all necessary training to meet the needs of the residents of the home.
- On the 2 March 2007 Brian Bowie carried out an unannounced inspection. The inspection was, in part, to check progress on the statutory requirement notices. There was some progress recorded and another inspection carried out on the 3 April 2007. By the 13 June 2007 the Respondent decided to lift the ban on further admissions to the home. There was a further inspection on 28 June and by and large the inspectors considered that the Appellant had made a positive response to the requirements. A new manager Grace Jesuorobo had been recruited in April 2007 and was about to have her registration interview by the Respondent.
- On 20 July 2007 Brian Bowie made an unannounced inspection. At this time he knew that Grace Jesuorobo had been provisionally placed on the PoVA list and therefore should not be working at the home and that the Appellant had gone to Nigeria (on 19 July) to attend to family arrangements following bereavement. When the inspectors arrived they said that the front door was opened by Grace Jesuorobo who said that she had told the Appellant about her provisional listing and that he had said that she could do some administrative work provided she did not have contact with the residents. In effect Mrs Onyerindu a trained senior care worker was in charge of the home.
- The inspectors were very concerned about the situation and required Mrs Onyerindu to obtain management cover for the home. Brian Bowie then went on leave and Jane Ray undertook the next inspection on the 26 July 2007. She did not consider that management cover had been put in place and she initiated the Adult Protection Alerting procedure which is covered in the next section. She carried out further visits on the 1 and 6 August 2007. In effect the result of that procedure was that all three placing authorities reviewed their residents and by the middle of September 2007 all residents save one had been removed from the home.
- In evidence the Appellant adamantly denied that he knew about Mrs Jesurobo's provisional listing before he went to Nigeria. He said that she had phoned to say that she was ill and that when the inspectors came on the 20 July 2007 Mrs Jesurobo had called in with her young daughter on her way from the doctors and was not working at the home.
- Brian Bowie conducted the inspections on 7 September and 19 September. On the 2 November 2007 Duncan Patterson became the lead inspector for the home and he carried out inspections on the 9 and 18 November 2007 by which time there was only one resident in the home. He was concerned about the statement of purpose, the recruitment and hours of staff, and one member of staff did not have a CRB check. A notice of four requirements was served on the Appellant and the overall rating of the home remained poor. On 21 December 2007 the Respondent served a Statutory Requirement Notice relating to ongoing concerns about care plans, staffing and recruitment practices.
- On the 28 February 2008 Duncan Patterson made his last inspection when he noted that there had been some re-decoration and improvement of the physical state of the premises. He said he remained concerned about the overall management of the home. We noted that all the requirements from November 2007 had been complied with save that the written 'Safeguarding Adults policy' needed to be clearer about referrals. Two requirements were made; to ensure that all staff working are recorded on the staff rota and to ensure that there is proof of identity including a photograph for all staff recruited to work in the home.
- The Appellant in his evidence stated that he had responded to all the requirements of the inspections as they had been made. He further complained that in July 2007 inspectors were visiting to check compliance with requirements before the due dates for compliance. He felt inspectors had under valued the friendly and family atmosphere of the home and the clearly expressed satisfaction of the residents with their care at the home. He acknowledged that he had not found it easy to recruit a manager and had written to the Respondent to request to be the manager- provider for the time being. He said that he now had the unpaid help of an experienced retired home manager. He emphasised the great improvement in the physical environment in the home and the provision of a separate area for residents with dementia.
Management of the home
- A continuing criticism of the running of the home by the Respondent's witnesses was the lack of a qualified registered manager and pro-active management. In the early days of the home there two different managers. From March 2003 the manager was a Mrs Ekeoma and in November 2006 the Appellant indicated that he was going to recruit a new manager. Mrs Ekeoma appears to have had time off sick and then to have resigned in late 2006 or early 2007.
- In January 2007 the Appellant engaged Carole Woodley as manager. She appears to have been very effective and we saw some of her care plans and other work. However she only wished to work 3 days (30 hours) and the Appellant told the hearing that the Respondent had told him that this was not satisfactory and that the person in the post must be full time although there was no evidence that part time managers were not acceptable. As a result of this he informed the Respondent that she was a temporary appointment and recruited Grace Jesurobo. As will be seen this did not prove satisfactory and the Appellant then wished to be registered as the provider-manager.
- Initially this was complicated by the fact that the Appellant was running the home as a limited Company, which meant that if he wished to be the registered manager he would have to apply for such registration in the usual way. In 1994 he had been registered as an individual but had formed a limited company in the 1990s to run the home. In Autumn 2007 he reverted to running the home as an individual. On this basis he was informed that as the registered provider he could be the manager without further registration formalities and this was confirmed in correspondence provided during the hearing.
Events leading to the Adults Protection Strategy meetings and review of residents placements
- On the 5 April 2007 the Appellant informed the Respondent that Grace Jesuorobo had been recruited via an agency with a view to employing subject to her successful registration. On the 7 June 2007 an application was received by the Respondent from her for registration. She was interviewed by Fay Bennett on 26 June 2007, who told the Tribunal that she recognised Grace Jesuorobo as a registered manager from another home, was also known as Patience Ajayi and that she recalled that she had been involved with a disciplinary matter with her previous employer. She asked Grace Jesuorobo about this who said that her former employer had referred her to the PoVA list.
- Fay Bennett checked the situation through her senior manager who confirmed with PoVA that Mrs Jesurobo had been provisionally listed. Miss Bennett recommended refusal of registration. We saw the letter of notification of a provisional listing dated 11 July 2007 sent to Patience Ajayi aka Grace Jesurobo.
- The Appellant went to Nigeria on the 19 July 2007. There was disputed evidence as to whether he knew, when he left, that Grace Jesuorobo was provisionally placed on the PoVA list and therefore not permitted to work at the home. The Respondent's inspectors knew of the listing on 19 July (Thursday) and they made an unannounced visit on 20 July having received this information. Mr Bowie said that he was told by the Appellant's wife that the Appellant had gone to Nigeria and that Grace Jesuorobo had told her and the Appellant, on Tuesday (17th), that she had been sent a letter by the nursing Council and could not work any longer.
- The Appellant adamantly denied that he had been told anything by Grace Jesurobo prior to leaving for Nigeria and that he was unaware of her listing or referral until he was told on the phone when he was in Nigeria. He did say that in any event he had not expected her to work on Thursday (20 July) as she had told him that she was unwell and she was not on the rota to do so. He had made arrangements for the home to be covered by senior carers.
- Mr Bowie in his case diary on 20 July noted; 'there is no significant risk to residents at present'. The inspectors were concerned at the lack of management cover and issued an immediate requirement for management cover to be provided to the home. Jane Ray visited the home on the 26 July 2007 to check compliance with this requirement. She noted in the diary 'residents looked OK, appropriately dressed and there was food in the fridge'. When she first arrived Mrs Onyerindu and another carer were on duty. After a little while an agency member of staff came to fill the role as manager as requested and was shown round. Ms Ray was present and considered that the agency member of staff did not understand her required managerial role in the home. The agency member of staff declined to take the job after discussion with Ms Ray and left. Mrs Onyerindu phoned the agency to request another member of staff to come in as manager.
- Ms Ray was concerned that the Appellant had left the home without management cover and she noted that the eleven requirements of the 28 June inspection report were still outstanding albeit that they were not due for completion until the end of July 2007.
- She also had concerns about the management of two of the residents' money. In one case a resident's wife had made a private arrangement with a carer to pay her money for her husband's day to day outgoings. An alternative arrangement was made for this residents money. In another the London Borough of Camden at the Borough's request, was paying the personal allowance for one of their residents directly to the home and the record of expenditure and receipts were muddled. The finance matters were resolved to the satisfaction of Camden's auditors in due course.
- She discussed the situation with the Regulation manager and it was agreed that she would contact the placing authorities for all the residents and that the Respondent's concerns would be raised formally through the Adult Protection team under the safeguarding vulnerable adult procedures. Later on the 26 July 2007 Ms Ray completed the Adult Protection Alerting Form and referred the matter to the Adult Protection Team at the London Borough of Enfield.
- There were Adult Protection Strategy meetings on the 1 & 29 August 2007 and 1 October 2007. At the first meeting Ms Custance who chaired the meeting said that' the meeting would have to agree that neglect in environment, medication issues and personal care has taken place in addition to the homes questionable financial management leaving the residents open the financial abuse, although there is no evidence of this actually having happened'.
- At the conclusion of the first meeting the minutes recorded: 'Ongoing areas of risk: Neglect is evident in relation to care plans, medication and the environment. Inappropriate financial management also exposes all the residents to risk of financial abuse. The home appears not to be viable in the longer term' As a result of the first meeting the agreed strategy was for all the placing authorities to "review their residents and make appropriate arrangements for alternate placements as soon as possible."
- By the second meeting plans were in place for all the residents to be moved. In the event one resident GM refused to move, although his belongings were taken away, and he remained in the home and is still there. His belongings were returned some two months after the attempt to move him.
- The Appellant felt aggrieved that the procedure was initiated without him being informed and that he was not able to put his point of view to the meetings. This we note is normal practice. The Appellant was informed of the procedure after the first meeting and told that reviews would be carried out.
- The Tribunal noted the remarks of Ms Ray recorded in the signed minutes of the 29 August which read "Jane informed the meeting that it would be really helpful if each authority could provide copies of any bizarre letters that they had received from Mr Onyerindu that could be used as evidence by CSCI to try and get him de-registered – most managers would give up with an empty home but CSCI feel Mr Onyerindu will battle on. Jane also requested that written feedback is completed and sent to CSCI detailing how unhelpful Mr Onyerindu has been".
- These minutes were also presented to the tribunal by the Respondent in a form amended by Ms. Ray during the preparation for the Respondent's case to read "Jane suggested that if authorities had concerns about Mr Onyerindu and his management of the home, then it would be helpful if they could pass details of this to CSCI. This would act as evidence when CSCI is assessing his ongoing fitness as a registered manager. This process would need to be followed, as it is very unlikely that he will want to cancel his registration voluntarily". She stated that the original did not reflect what she had said but that she had not checked them thoroughly at the time and regretted this omission. She also said that she did not say that "neglect is evident" at any point during the meeting as recorded in the signed minutes of 1 August.
- We note the concluding comment of Mr Bowie as recorded in the minutes of the 29 October meeting. "Brian concluded by saying that from CSCI's experience, the case had been very positive in terms of CSCI working closely with the three local authorities involved and that in terms of trying to address the serious concerns about The Lime Trees using the Safeguarding Adults Procedures the local authorities' input had been very helpful". He admitted in evidence that the Respondent expected all the residents to be moved and the home to close as a consequence of the Adult Protection Procedure process being instigated.
- We heard evidence from the social workers and managers of the placing authorities. They explained their placing policies and that following the Adult Protection Procedure that they had reviewed each placement on an individual basis. We also noted that it was minuted at the first meeting that the intention was that all residents were to be moved.
Evidence regarding the suitability of the home for additional categories requested by the Appellant
- Overall the evidence of the Respondent was that the home run by the Appellant was of a poor standard and that until he had improved his rating in the inspections it would be inappropriate to agree to additional categories of resident who would inevitably have greater needs. We summarise below the main points of evidence on each of the additional categories requested.
- Dementia. The Respondents considered that the home was not physically suitable for dementia residents and that neither the Appellant nor the staff had the necessary training to care for such residents. They considered that the staff's knowledge was based on their experience in the home without wider training. Care did not reflect best practice and was not a stimulating or person centred approach.
- They also considered that such residents would have difficulty negotiating around the building even with the new signs and that working with other agencies was very important with such residents. The Appellant pointed out that he had completed the taught component of an MSc course in Mental Health and the Older Person, and that many of the residents who had come to the home had or developed cognitive impairment. In addition he had created a new sitting room for such residents and had provided signs in the home to assist the residents. The Appellant provided many examples in evidence, and a supplementary statement, of the positive outcomes for residents who had suffered from all the additional categories he was seeking including dementia.
- Mental Illness. Again the Respondent did not consider that the Appellant had sufficient knowledge of experience of such residents. The witnesses pointed out that the needs of such residents were quite distinctive and very different from the residents who had been in the home. The provider and manager would need knowledge of the relevant legislation. The Appellant pointed to his further academic study to justify having such residents and considered that in the past a number of his residents had been admitted with mental health issues and had greatly improved at the home.
- Physical disability. The Respondent Was concerned about the physical layout of the property which they contended was unsuitable for residents with physical disability in particular residents confined to wheelchairs. They maintained that the width of doors and corridors meant that a wheelchair user would find independent mobility difficult. Some work would need to be done to improve access to bathrooms. Again the Appellant contended that he had successfully looked after such residents in the past and that the property met relevant regulations for disabled users and had been improved recently.
Evidence regarding the Appellant's background and suitability
- The Appellant is a married man who originates from Nigeria. He is a devout Roman Catholic with strong ties to the local church. He told the tribunal that he had taken a degree in International Politics and Foreign Policy and then taken a law degree and that he was qualified as a barrister in Nigeria. When he came to the UK he had run an employment agency which placed social care workers for some 10 years before purchasing 'The Limes' and running a residential home for the elderly.
- The Appellant said that he had the NVQ Managers qualification and a Masters degree in Aging and Mental health. However on cross-examination he admitted that he had attended the MSc course at University College London for this qualification but that he had not completed the written work and therefore had not received the degree yet.
- The appellant produced an Occupational Therapist report, prepared in September 2006, which concluded that the home is an institution with acceptable standards, it is apparent that each resident's needs are considered.' It stated 'Should this home accommodate more residents with severe dementia in the future clearer signings with photos and title for all rooms and colour coding should be considered'. The Appellant had since that report converted a ground floor bedroom into a sitting room for dementia residents and had put up some additional signs.
- Evidence was provided that the home was familiar with, and well linked in to, community services such as GPs, and healthcare services in additional to close links to the local facilities in the area.
Findings
- Registration decision in 2003. The Appellant asked for the category of dementia together with the increase in numbers in 2003. We heard the evidence of the inspector that she allowed the increase in numbers but was concerned that the Appellant did not appreciate the additional needs of residents with dementia. The condition 5 imposed was tautological as it restated that only OP residents were to be admitted. The Appellant was not told of his right to Appeal as required before the condition could be imposed. We note that under current policy such a condition other than the statement of category would not now be imposed in any event.
- It is difficult to tell, looking back over five years, whether the decision to refuse to allow the appellant to have dementia residents was correct or incorrect. At that stage the home had recently been extended from 6 to 16 beds, its record was adequate, the Respondent's registration inspector had a view that a mix of categories in small converted homes was not good practice and the demand for OP only places was still strong. On balance we find it was reasonable for the registration inspector to make the decision that she did. However we also find that CSCI failed to impose those conditions, including the category, correctly such that none of them, including the category in fact imposed limits on the Appellant.
- Registration decision in 2006. The same registration inspector attended the home on this occasion. We accept that she was bound to look at previous inspection reports and to speak to the current lead inspector. However we are struck by the exchange of e-mails provided in evidence between Mr Bowie and Ms Maggiulli in advance of her visit indicating the judgment she was likely to make, and the fact that the lead inspector carried out an unannounced inspection on the 10 November 2006 at which he re-graded the rating of the home to poor. We accept that the Appellant does not appear to have prepared adequately for the pre-arranged registration inspection and he has to take responsibility for that failure. We find that that CSCI made clear what preparation should have been made.
- It is now apparent that there is a view from the Respondent that homes of this size, particularly if they are converted buildings, are not suitable for such a mix of categories and this was never explained to the Appellant. Essentially from the Respondent's point of view the Appellant was most unlikely to get all additional categories because he was in a small non-purpose built home. Similarly the arguments for refusing to vary the conditions focused on moving from a single category of user (OP) to a mix of several different categories.
- The inspector does not appear to have given consideration as to whether she could have allowed any one of the additional categories requested on its own i.e. to allow a more limited mix of users. To be fair, at that time Ms Maggiulli was presented with an application for a broader mix of categories than were set out before the tribunal as the Appellant's wishes. What was requested in 2006 did not entirely fit into the Respondent's categories and that no doubt contributed to CSCI's doubts about varying the conditions.
- The Appellant had extended the home in accordance with building control and fire regulation requirements. He had obtained an Occupational Health report which said that the home was suitable for the other categories of resident with some improvement of signage. The registration inspector worked to her format correctly but we find that she came with a predetermined view of what was appropriate in a converted home of this size and was not open with the Appellant in explaining the Respondent's policy about having a mix in a home of this size and construction.
- The tribunal asked for details of any similar homes nearby which had a mix of resident categories of the kind being sought by the Appellant and was told of two such homes within the area of the three placing authorities; one of which is considerably smaller than the Limes. Both we were told had received that registration prior to the Respondent forming their current view about such a mix in small, non purpose built homes.
- Physical layout of the home and the Tribunal's visit. The home is a converted Victorian style house that has been extended to the rear. The rear extension is not on a level with the rest of the building so that rooms at the rear are accessed via a sloping corridor at ground level and rooms in the extension are at a mezzanine level at first floor level with a short flight of steps linking to the main first floor. There is a lift to the first and second floors but not the mezzanine level. From the front door there is a long passageway which leads to the rear of the property via the sloping corridor. At ground floor level, the extension provides two bedrooms, the walk-in shower, disabled toilet, kitchen and lounge-dining room. One of the tribunal members came in a motorised wheelchair which he used around the ground floor. It was possible to negotiate the corridor but with some difficulty.
- The walk-in shower downstairs is a standard shower for persons with a disability. It needs a clothes hook. Upstairs on a mezzanine floor there is an assisted bathroom; it is accessible by ambulant residents. However a chair lift could assist others to access the room to use the bath. Ideally an assisted bathroom on the first floor which is accessible from the lift would help all residents and make bathing facilities available to any non-ambulant resident whichever room they occupied.
- The combined dining sitting room is registered for, and we therefore assume meets the regulations for, sixteen residents. However in our view it would be cramped if all the residents were there at one time. There is now an additional sitting room at the front of the house, intended for residents with dementia, and two additional quiet areas upstairs. There is a garden but overall there is nothing extra in terms of presentation.
- We conclude that the home is adequate in terms of decoration and furnishings. It meets the regulation requirements for the size of rooms and facilities. The Appellant has in the past months carried out a programme of re-decoration and refurbishment. Most of the bed rooms have an en-suite toilet and residents do personalise their rooms. Some of the rooms do not have views as their windows look out on and are close to the flank walls of neighbouring properties. The home only had one resident when we visited and so it appeared a little stark in presentation. We accept the point made by the Appellant that some elderly residents may prefer an older building and smaller home for their residential care.
- Standard of care at the home. At no time has there been any criticism of the care by the home since 1995 from residents, relatives or placing authorities. The residents and their relatives have all expressed satisfaction with care provided. Residents are assessed for admission and then spend a trial period of six weeks at the home. At the end of that time the resident and the home decide whether the arrangement is to be permanent. No resident has ever elected to go at the end of this time.
- Apart from the anonymous district nurse complaint re PW there were no other complaints about the home and the on going assessments by local authorities were not critical until after the Adult protection procedure had been started. Only the first Adult protection meeting minute noted "neglect is evident" yet this was not borne out by the information given to the meeting which was mainly about the home 'being run very poorly'. On the balance of probability we find that there is no evidence of inadequate care that would place residents at risk of harm.
- Care standards have been good throughout and in some cases very good outcomes have been achieved for the residents. The atmosphere of the home has been complimented by inspectors and families, and carers, families, and other community professionals have been welcomed.
- There have been no complaints about the care or competency of the staff except for the anonymous complaint from a district nurse in 2006 and that was primarily about her diabetic care. Health care has been good with appropriate links to community services. As noted above community links are strong.
- Management of the home. This is an area of consistent criticism by the Respondent and a low score in this area resulted in the home being classified as poor overall. We accept that at the time of inspections the record keeping and administrative arrangements were poor. The Appellant failed to see the importance of improving to good or very good this area of activity in the home. Management arrangements have improved in that staff rotas are recorded, adequate training is in place, and supervision is undertaken. We acknowledge this has been in response to inspection reports and prompts. The Appellant acknowledged in evidence that if the number of residents increased he would need additional administrative assistance.
- Since the beginning of February 2008, the Appellant has had the unpaid assistance of Mrs Pauline Pope a qualified nurse and experienced home manager. Mrs Pope is retired from full time work. We saw her c.v. and were told that she intends to continue to assist the Appellant for the foreseeable future. She attended the entire hearing. At present the Appellant is the registered provider – manager and, with Mrs Pope's input, this is satisfactory. However if the home starts to increase its numbers the Appellant will need in our view to appoint a manager despite technically the Appellant being able to be provider-manager.
- The Appellant has the necessary qualifications to run the home. He falsely implied that he had obtained an MSc qualification when in fact he had attended the course but not completed all the written work. However he did take the initiative to undertake extra study to increase his knowledge of dementia and demonstrated in evidence his understanding of the practical needs of a resident with dementia. His evidence on his knowledge in the care of physical disability and mental illness was less reassuring.
- The events leading to the Adult protection procedure. As noted above we heard considerable evidence about the reasons leading to the above procedure which resulted in the removal of all but one of the residents. By mid June 2007 the home was regarded as adequate and the ban on admission was lifted. When the inspectors attended the home on the 20 July 2007 it was because they had been informed that Mrs Jesurolo was provisionally listed on the PoVA list. They found Mrs Jesurolo at the premises and that the Appellant had gone to Nigeria. They took the view that there was insufficient management cover. They requested cover by a manager or two senior carers in the absence of a registered manager. When they re-visited on the 26 July they considered that the management cover had not been provided and that the 5 residents were at such risk that an Adult protection procedure should be started.
- At this stage Mrs Jesurolo was employed by the employment agency pending her approval as the registered manager by the Respondent. The Appellant had prepared a contract but it had not been signed. We find that the Appellant had been putting Mrs Jesurolo on the rota as a manager, as an agency placement, but in the week he went away he was not expecting her to work in his absence because he had been told that she was ill. He had left his wife, as a senior carer, in charge of the home. All other staff were on the rota. It was not unreasonable to request another senior carer be placed from an agency but bearing in mind that all the regular staff were present and the Appellant had been made aware of the situation in relation to the POVA listing and was coming back as soon as he could, we do not accept that there was sufficient cause or risk to commence an Adult Protection Procedure. Placing authorities were told in any event.
- Having seen the minutes of the 1 August we find that there were inaccuracies of fact in the minutes eg "neglect was evident" when this was not the case. Also comparing the original and amended minutes for the 29 August while Ms Ray cannot remember saying the unamended words we find that on the balance of probability the contemporaneous agreed signed and dated minutes are the more likely to reflect accurately both what was said and the tone of the meeting.
- The approach of the Respondent. At the start of the hearing Counsel for the Appellant stated that she would test the credibility of the Respondent's witnesses. Issues about the inspectors' motivation and intentions were explored. As noted above the Respondent granted the increase in numbers partly because the application had been outstanding for a long time and if refused the Appellant would succeed on appeal. They were in error in imposing conditions on categories without following the proper process.
- We noted the e-mail exchange between the lead inspector and the registration inspector in 2006. It was correct for the inspectors to advise the Appellant to improve the home and then apply for the additional categories but by then the Appellant felt that there was nothing he could do that would gain approval for the improvements.
- The number and frequency of the inspections after the Appellant had requested the additional categories, was onerous. The restatement of requirements by inspections before the compliance date for the requirements was not good practice in particular as happened following the 26 July inspection.
- The Respondent did give some support and advice to the Appellant at two meetings and at the inspections, and advised on the advertisement for the new manager. Also when Ms Woodley was the manager at the beginning of 2007 the Appellant said he was informed that she could not take the post permanently because she could only work part time (30 hours a week). Mr Bowie could not remember saying this but if this was the advice or impression given then it was unhelpful bearing in mind how long the Appellant had been looking for a new manager and that Ms Woodley seems to have been very competent.
- The Respondent noted that on occasion staff were taken on without CRB checks. This was true. However the Appellant was always in the process of getting the checks and staff can work under supervision until checks are received. The Respondent took the view that the Appellant should get CRB checks for agency staff whereas the Appellant saw that as part of the agency's job and this seems right to us.
- The Appellant complained frequently that the Respondent had given him no help and in so doing failed in their duty under Section 5B (2) of the Care Standards Act 2000, 'The CSCI shall have the general duty of encouraging improvement in the quality of registered social care services in England '. We disagree. Mr Bowie for example assisted him directly over drawing up a job description for a new manager. Ms Maggiulli in a letter indicated clearly what she would be looking for at her inspection in December 2006. Meetings were held and what needed to be addressed discussed in some detail. We accept CSCI's position that the responsibility rests with the provider and theirs is primarily a regulatory function not an advisory one.
- However we do take the view that the Respondent could have been more helpful than they were. Mr Bowie in evidence stated that the Appellant should have kept him better informed during the period of difficulty recruiting a manager so that he could help. However when asked by the tribunal what more he could have done the answer was 'nothing'. The registration teams could prepare and send out information in advance about their expectations at a registration inspection in the form of a pack, but they do not.
- We also find it confusing and unhelpful for regulatory inspectors to be critical of matters found acceptable by their registration colleagues. In this case we are thinking of the comments made about the age of the building, that it is adapted and not purpose built and has the sloping corridor to the rooms in the rear extension. As these limitations satisfy the building control regulations, and the Occupational Health review, and are deemed suitable for the premises to be registered these are not matters the Appellant either can or should have to do anything about.
- Whilst being sympathetic to the Appellant's frustration with some of CSCI's actions we find that he goes too far in his criticism of how CSCI conducted itself. CSCI are right in that the primary responsibility for being informed and providing strategic leadership for his home and promoting good practice is his as provider-manager. To date in our view his vision and management rarely rises above adequate although with the help and input of Mrs Pope we are hopeful that that might change.
- The local authorities. We heard from all three placing authorities. As far as we can tell there had been a good relationship between them and the Appellant for up to ten years. However once the Adult Protection procedure was started the placing authorities came to the home to re-assess their clients. It is clear from the minutes that the intention of that reassessment was to determine where would be suitable to move their residents to. No convincing evidence was presented that they made their own assessment of any risk to their residents. CSCI's concerns as recorded in the minutes was taken as read and acted on.
- There is no justification to move a resident against their will, as happened here, unless the placing local authority has determined for itself that the person for whom they have responsibility is at significant risk. We accept that the decisions to move residents were those of the placing authorities and not those of CSCI but it was clear to us that their actions and decisions were deeply influenced by CSCI. We find that unsurprising given CSCI's role in assessing local authority performance and consider CSCI's view put to us that CSCI does not influence local authorities as unrealistic. Much better in our view that the inevitability of such influence occurring is recognised. Then both parties are alert to that possibility and can take effective steps to minimise it.
- Residents who had been well settled were removed by social workers without adequate consultation with them or their relatives. The Respondent and social workers complained that the Appellant was becoming hostile and angry about their actions. But we accept that the Appellant was genuinely concerned about the residents and acting as an advocate for them in what he considered was a move not in their best interests. We further believe on the balance of probability his judgement in this matter was correct.
- The Local authorities believed that they could remove all the residents. When one resident GM refused to move his belongings were kept by his responsible authority from September until November 2007. During that time the local authority continued to try and move him. After the inspection on 9 and 18 November 2007, where the Appellant was criticised by the Respondent for the resident still being without his personal possessions the Appellant phoned the local authority again and eventually got the residents belongings returned.
- The placing and removal of SB. At the beginning of 22 May 2008 hearing the Tribunal was told that a new resident SB, had been placed by the London Borough of Enfield. The woman had recently been bereaved and was placed with the intention that she would stay for some weeks respite with the option that she might become a permanent resident. When the Tribunal reconvened on the 2 July 2008 we were informed that the resident SB had been removed from the home in what appeared to us to be distressing circumstances.
- We saw a letter of complaint written by Mrs Pope, on behalf of the Appellant, saying that SB had come to the home on 7 May 2008 after a number of visits by the family and placing social worker. On 25 May, the letter said, the placing social worker had said 'that Enfield and CSCI were not placing people at the Lime Trees' and he suggested that he would move her to another home. We heard that SB and her son did not wish the move to take place.
- On the 13 June SB had a routine appointment at the Royal Free hospital who phoned to ask for her lunch to be prepared at the home as she would not be in hospital for lunch. It was then said that the social worker phoned to ask about SB and on being told that she was on her way back from hospital said that' she would not be returning to the Lime Trees'. SB did not return and she was taken to another home. The letter of complaint addressed to the Team Manager of the Hospital Social Work Team was dated 14 June 2008. At the time of the final day of hearing, 3 July 2008, no reply had been received. The Respondent, made such enquiries as it could and said that it had no involvement with the decision to place or to remove. Subject to the views expressed in paragraph 103 above we accept that this is correct.
- We also heard that there were three authorities who had recently made enquiries with a view to making a placement at the Lime Trees. We accept that we only heard one side of the events and that much of the evidence was hearsay. Having said that it is clear that local authorities are waiting for the outcome of this case and that they do place great weight on the views of the Respondent.
- The Appellant. The appellant finds it difficult to be proactive and is primarily reactive in his management approach. He is overcautious and over anxious about undertaking improvements without being told to do them. His record with carers and residents is good, and also was good with local authorities until recent events. He is responsive to constructive criticism and makes improvements but does not always ensure that they are sustainable.
- We noted the remarks of the Enforcement Inspector in the Case diary sheet for the Lime Trees responding to a request by the inspectors to start cancellation procedure in October 2007 He wrote, on 15 October, "Having reviewed in detail the service file, inspection reports and enforcement notices served to date I am not able to recommend service of a proposal to cancel. Technically, none of the three notices served were valid at the time of service for a variety of reasons. These have been outlined in the attached table. Mitigations which appear not to have been considered in proposing cancellation are that: the provider appears to have been communicative and appropriately responsive to statutory requirements made; from inspection activity, the service appears to have generally improved such that the number of statutory requirements has reduced to one in the most recent report." This objectively summarises the Appellant's position.
- The Appellant is a strong advocate on behalf of residents. Recently this was interpreted as anger towards the professionals involved. However we conclude that in his position he genuinely believed that the moving of residents was not in their best interest and was angry at the actions of the authorities.
- He misled the authorities and the Tribunal about his MSc qualification when there was no need for him to do so.
- He maintained that he has had residents in all the categories that he now wishes to cater for and that their outcomes were good. We accept that this probably has been the case.
Conclusions and decision
- We reminded ourselves that this home is a residential home and not a nursing home or hospital. Therefore the level of needs of the residents will be assessed on admission with that in mind.
- We do not consider that either side has emerged from this hearing without criticism. The Respondents have made procedural errors. After the events on the 20 and 26 July 2007, on 26 July they initiated the Adult Protection procedure which we find was a disproportionate response to the risk to the five residents at that time. The procedure led in turn to the removal of all save one of the residents.
- The Appellant has not helped himself, in that while his delivery of care has been consistently good he has not managed the home pro-actively. He has responded to requirements and then matters have slipped and some requirements had to be repeated.
- He has cared for residents with a number of needs in the past. We find that he has looked after residents with confusion and dementia.
- The conclusion of these proceedings will assist the Appellant. In reality the Appellant will have to re-establish contact and confidence with the placing authorities and the Respondent in order to make a success of his home. Whatever the shortcomings of both parties our task is to assess the Appellant, on the evidence we have heard and seen against the National Minimum Standards and the Regulations.
- On that basis it is evident that the Appellant has improved the home, engaged the services of an experienced manager, and has sufficient experience of residents with dementia to be allowed to admit such residents. The Appellant indicated that he would not seek to admit more than five residents with DE. We would agree with this number but are not imposing it as we consider that it is a matter for the Appellant and Respondent to decide according to the future circumstances of the home. We are granting his appeal to the extent to allow him to admit residents with dementia.
- With reference to the other categories requested we accept that caring for any of the additional categories will impose significant additional demands on the home. It is evident that the mix of OP and DE is one which is workable subject to the National minimum standards being met. The preparation and knowledge of the Appellant is predominantly in the area of DE. At this stage, and bearing in mind the history of the home, we do not consider that it is appropriate or suitable for the other two categories (PD and MD) to be given.
- For that reason, we direct in accordance with section 21(5)(c) the Care Standards Act 2000 that the following be the conditions of registration:
(1) The registered person may provide the following category of service only:
Care Home only – Code PC
to service users of either gender
whose primary needs on admission to the Home are with the following categories:
Old age, not falling within any other category - Code OP.
Dementia – code DE(E)
(2) The maximum number of services user who can be accommodated is 15.
Our decision is unanimous.
APPEALS ALLOWED in accordance with paragraph 136 above.
Maureen Roberts
Christa Wiggin
Richard Beeden
21st July 2008
