Hunt v Commission for Social Care Inspection [2007] EWCST 1045(EA) (16 January 2008)

Glenda Hunt
-v-
Commission for Social Care Inspection
[2007] 1045.EA

-Before-

His Honour Judge David Pearl
(President)
Mr Michael Flynn
Mr David Tomlinson

Heard at the Care Standards Tribunal sitting at Cambridge County Court on 7th, 8th and 9th January 2008.

The Appellant appeared in person
For the Respondent: Ms S Broadfoot of Counsel instructed by Mills and Reeve LLP, Solicitors.

1.	Ms Glenda Hunt appealed under section 21 of the Care Standards Act 2000 against the decision taken by the Respondent on 14th June 2007 to adopt the proposal of the Respondent to refuse to register her as the registered proprietor of a care home; namely the Cathryn Wheel House, 43 High Street, Manea, near March in Cambridgeshire. 
2.	At the hearing, Ms Hunt appeared in person, but the Tribunal ensured that she had a full opportunity to present her case and to cross-examine the Respondent’s witnesses. In addition, the Tribunal members themselves asked very detailed questions of the Respondent’s witnesses; many more than would normally be expected of the Tribunal members if the Appellant had had legal representation.
3.	The Notice of Proposal to Refuse Registration (confirmed by the decision of 14th June 2007) states, in summary form, that the Appellant was not fit to carry on a care home in accordance with Regulation 7 for the following five reasons:
1. Regulation 10(1): A failure to demonstrate the skills or competency to carry on a care home, because:
(i)	No evidence either within the c.v. or during the fit person interview of 20th April 2007, to suggest that there is any previous experience in working in or owning a care service;
(ii)	No evidence that transferable skills in relation to managing finances and in relation to communication could be used;
(iii)	During the fit person interview, a failure to demonstrate an understanding of the role of the CSCI;.
(iv)	During the fit person interview, a failure to refer to any of the Care Homes Regulations 2001.
2. Regulation 25(1): A failure to put plans in place, to ensure financial viability and a failure to illustrate appropriate business skills to run the care home for its intended purpose because:
(i)	The Appellant contacted the registration team requesting for the fee to be waived as it was said that the Appellant did not have the £2000 required to process the application.
(ii)	The financial forecast was based on 100% occupancy, but the home has not been fully occupied since 2006 and the local council stopped placing funded service users as from 7th February 2007.
       3. Regulation 23(2)(d): Fitness of premises.
 It is alleged that the Appellant had failed to demonstrate any ability to provide a reasonably decorated care home
       4. Regulation 8(1)(a)(b)(c) (ii)(iii): Appointment of manager.
It is alleged that the Appellant had failed to take steps to improve the poor management of the care home by appointing a suitable person to manage the care home.
      5. Regulations 13(2) and 13(6): Further requirements as to health and welfare
 It is alleged that the Appellant failed to demonstrate that service users would be safe from the risk of harm to their health, and that service users would be safe from abuse.
4.	The burden of proof in this case is on the Appellant to satisfy us that she is a fit person to be registered as a proprietor of a care home (Jones v Commission for Social Care Inspection [2004] EWCA 1713). 
5.	Ms Broadfoot submitted that in a registration case (and in contrast with a cancellation case) the focus of the appeal should be on the facts as they are as at the date of the decision. She submitted that the approach adopted by the Tribunal in registration cases to consider the situation as at the date of the hearing does not fit into the legislative framework of section 21(3) of the Care Standards Act 2000. The Tribunal decided that this was not the case where it would be appropriate to deal with this submission. Ms Hunt was unrepresented, and it would be wholly unfair to her to deal with Ms Broadfoot’s submission in the absence of any fully reasoned response. In any event, in this case, as accepted by Ms Broadfoot, the inclusion or exclusion of evidence subsequent to the decision of the Respondent does not make any real difference. Accordingly, the Tribunal has considered all of the evidence submitted by Ms Hunt, including evidence that post dates the decision of the Respondent.
6.	The Respondent, in opposing Ms Hunt’s appeal, relied on all of the reasons contained in the section 17 Notice of Proposal. The two main witnesses for the Respondent were Ms Cathryn Bramham, the Regulation Manager within the Cambridgeshire and Peterborough area team. She is the line manager for the second main witness, Ms Elaine Boismier, the Regulation Inspector for Cathryn Wheel House. Both Ms Bramham and Ms Boismier signed witness statements and gave evidence at the hearing.
7.	Ms Bramham sets out the background in her witness statement. Cathryn Wheel House was a residential home registered with eleven residents in the category Old Age, including three named residents with dementia.  The home transferred its registration under the Care Standards Act 2000 in April 2002; the registered provider and registered manager was Miss Jean Wells. The registered provider was transferred on 29th July 2005 to Mr and Mrs Jepson, and Mrs Gail Miller was registered as the manager as at the same date. 
8.	Ms Bramham details the history of non-compliance; with consistent breaches of the Regulations, and with a failure to maintain improvements. There were consistent poor outcomes for the residents in relation to medication issues, the environment, care planning documentation, the lack of a registered manager, the lack of activities, and the lack of training provided for staff and poor recruitment practices. The home was assessed as a level 1 service (poor).
9.	A notice of proposal to cancel the registration of the proprietors (Mr and Mrs Jepson) was served on 27th April 2007. Ms Bramham states in her witness statement that no representation was made against this proposal by either of Mr or Mrs Jepson, and accordingly the Notice of Decision to Cancel was served on 29th May 2007. There was no appeal, and accordingly the home was closed on 30th June 2007.
10.	It would seem that Ms Bramham first became aware of Ms Hunt’s application to become the new proprietor on 7th December 2006. She saw the application papers and was concerned that the accounts submitted with the application were very brief. Accordingly, she sought advice from the financial controller of CSCI (Mr Kevin Wilson).  After receiving advice from him, Ms Bramham wrote to Ms Hunt on 17th January 2007 seeking information about expectancy levels of the home, the staffing ratios, how the purchase of the home was to be funded, the source of revenue, the projected profit, and why money on refurbishment should come out of private savings rather than funds of the business. There was no immediate reply, and Ms Bramham accordingly wrote again to Ms Hunt seeking a reply prior to the fit person interview scheduled for 20th April 2007.
11.	The reply from Ms Hunt was delivered on 12th April 2007. Ms Bramham said that she was concerned about the response. It envisages full occupancy of twelve service users. The home was of course registered for eleven rather than twelve, it had not been fully occupied for over a year and the local authority had in any event suspended further placements. 
12.	Ms Bramham commented also on the completed self-assessment questionnaire that was submitted by Ms Hunt as part of her application. She said that the answers provided by Ms Hunt failed to demonstrate that Ms Hunt had knowledge of the Care Homes Regulations 2001 and the National Minimum Standards for Older People. We have looked carefully at the self-assessment questionnaire, and we have to agree with Ms Bramham’s conclusions that the self-assessment questionnaire shows no evidence of any understanding of the Regulations or of her responsibilities as a registered person.
13.	It would appear that Ms Bramham first met Ms Hunt on 12th April 2007 when she arrived at the CSCI offices and when she asked to see Ms Bramham. Ms Hunt asked Ms Bramham to postpone the fit person interview to a date later than ten weeks from 20th April 2007, because the nominated manager had dropped out. Ms Bramham obtained advice from Ms Sue Pinner, the Regulation Manager of the Regional Registration team. Ms Pinner informed Ms Bramham that the interview could not be postponed but that she could withdraw her application and submit a new application (with the payment of a new fee) at a later date when a new manager had been obtained. Accordingly, Ms Bramham told Ms Hunt that the interview could not be postponed, and, if she decided to withdraw her current application that a new application would require a new fee.
14.	Ms Hunt went ahead with the fit person interview on the 20th April 2007. She was interviewed by Ms Bramham and Ms Boismier. The interview lasted 90 minutes and we have read the notes of the interview. Ms Hunt said in evidence to us that she was very nervous. It was clearly a disaster for Ms Hunt. Ms Bramham said that Ms Hunt was unable to demonstrate how residents in the home would be protected from abuse, that she was unable to provide a satisfactory answer in respect of the actions that she would take if a controlled drug was found to be missing from the home, and that she was unable to state how she would ensure that a stock of medication was always in the home. There were continuing concerns relating to financial viability, and to the fact that there was no registered manager to be put forward as at the date of the interview. 
15.	Whilst we can appreciate Ms Hunt’s criticism of the decision of CSCI not to postpone the fit person interview, we can understand CSCI’s decision. The application to postpone was made very close to the date of the interview, which had been arranged well in advance and which had been known to Ms Hunt for some considerable time. She had herself asked for the date to be brought forward, because she was concerned that her proposed manager would no longer be available. CSCI were unable to bring forward the date, and she was told of this. 
16.	Ms Boismier’s witness statement confirms all that Ms Bramham stated about the fit person interview. Her witness statement continues: “Following the fit person interview, Cathryn Bramham and myself shared our views of Ms Hunt’s responses to the questions posed to her and reviewed her application. We made the decision to recommend refusal of Ms Hunt’s application based on the evidence. I wrote a report of the registration process and this report included all the evidence that we had obtained throughout the application process. The registration report was submitted to the Business Relationship Manager, Kevin Mansell. Mr Mansell adopted the proposal not to approve the application of registration. Sue Pinner, Eastern Registration Team Regulation Manager also signed the registration report, as she also considered that Ms Hunt’s application should be refused”.
17.	In answer to questions from the Tribunal members, Ms Boismier said that CSCI expected the applicant for registration as a proprietor to do a certain amount of home study prior to the interview, and the period that she had at the interview, should have been long enough for her to demonstrate her knowledge. 
18.	Ms Pinner, the Regulation Manager, gave evidence before us. She had had no involvement with Cathryn Wheel House, and her only responsibility in this case concerned Ms Hunt’s application, as from the first paper work submitted on 12th September 2006. She indicated that when a new provider wishes to be registered in respect of an existing establishment, there are robust procedures in place to enable the application (including the fit person interview) to be concluded before the sale of the property and the cancellation of any existing provider’s registration. Normally, the purchase and the registration process go parallel. She said that, on receipt of the application, CSCI would obtain all of the documentation, arrange for a fit person interview, and provide a “comfort letter” to the applicant so that it could be shown, for example, to the Bank or Mortgage Company. She said that CSCI often provide advice and support but that CSCI expects applicants, in her words, “to put in work for the application.” She acknowledged that an applicant was at risk if he or she purchased the property without the registration process having reached a conclusion.
19.	Ms Pinner was questioned about her refusal to postpone the date of the fit person interview. She said that it was not her practice to put applications “on hold.” She said that CSCI would not put off an interview in a case such as the present one, in that the reason for the request was not an emergency as such. She said that if the fit person interview were to have been cancelled, then Ms Hunt would have had to reapply and pay another fee. She said that Ms Hunt was given an option to withdraw but that she chose not to do so. 
20.	Ms Pinner provided useful information about applications received from people new to the care industry. She said that when such applications are received, CSCI would be looking for transferable skills, and evidence that the applicant had understood the regulatory framework, with a good management structure in place. Ms Pinner said that there was no such evidence in this case, and she confirmed that she agreed with the views of both Ms Bramham and Ms Boismier.
21.	The Tribunal heard also from Tracy Smith, a locum senior social worker employed by Cambridgeshire PCT, and Kim Brown, the locality manager of the integrated community services team in March employed also by Cambridgeshire PCT. Both witnesses gave evidence of the poor performance at Cathryn Wheel House, summarised at paragraph 7 of Ms Brown’s statement: “The overall impression was that of a home, which although the care staff tried their best, failed to meet minimum standards required due to a lack of leadership and management support. A strategy meeting was convened on 22nd June with Mr Jepson and Ms Hunt present. Although it is recognised that much of the practice was historical and entrenched, Ms Hunt was either not aware of such practice or not able to address the issues.”
22.	Ms Smith provides details of her concerns about Ms Hunt not seeming to have awareness of moving and handling guidelines, use of medications, filling in drug charts, or keeping client records. Ms Smith sets out the circumstances involving the handling of one resident (WS) both in her witness statement and in evidence before us; these concerns as described to us by Ms Smith are indeed very worrying. There would appear to have been no risk assessment for WS. Ms Smith said that WS “left in a state when he was not happy; I saw him later when he was happy and content.” Ms Smith was visiting the home regularly during this key period in June 2007 just prior to the closure of the home. Ms Hunt was in effect acting as the manager at this time, and Ms Smith paints a very sad picture of a failing care home.
23.	The final witness for the Respondent was Ms Jenny Brennan, the contracts manager of the Cambridgeshire County Council. She states in her witness statement that the home had failed to meet several areas of compliance, that an Action Plan was put in place with time scales, and that the then manager was notified on 7th February 2006 that new placements would be suspended until the “actions” had been met. She said that at the time that Ms Hunt was going through with purchasing the property, she was aware of the suspension of placements and also aware of the Contracts units concerns regarding safety and well being of residents. 
24.	There was an important meeting on 1st March 2007 with Ms Brennan, Ms Brown, Ms Hunt and Mr Jepson. Ms Brennan says in her witness statement, and in evidence before us, that at this meeting Ms Hunt was informed that the care home was not considered fit for purpose. Ms Brennan states: “Over several months when I have met with Ms Hunt, it was clear to me that she had little insight in how a care home should be run/managed or how to meet clients needs within a care home setting. She demonstrated a lack of understanding of her responsibilities.”
25.	Ms Hunt made clear to us that her appeal was “to uphold her ability as a provider”. She gave the impression to us of being a dedicated person who believes very strongly indeed in the principle that elderly people should be treated with dignity and respect and, if it is necessary for them to go into a residential home, should be accommodated in small homes within the area where they have spent their lives and where their relatives live. She believes very strongly indeed that CSCI have not given her the opportunity to put in place the management structure that she was working on. She was supported in this by Ms Vitenu-Sackey and Ms Sylvia Metcalfe, both of whom gave evidence that they had hoped to work in the home, and that Ms Hunt was not given the time to prove her capabilities due to the previous history of other owners. We also admitted in evidence a late witness statement of Mr Martin Wigg, an independent consultant, who visited Ms Hunt in May 2007. Mr Wigg, in our opinion, is absolutely correct when he states: “…it is clear that Ms Hunt’s motivation for the purchase of Cathryn Wheel House was a ‘duty of care’ based upon a concern for the health and welfare of its service users”. 
26.	There are people in the story we have heard, who have not given evidence before us, but whose conduct we can surmise may well have been less than honourable. We believe that Mr and Mrs Jepson have a great deal to answer for, and would hope that at the very least a copy of this decision will be available to the regulator if either or both of them seek to register a care home or other similar activity in the future. The solicitor acting on behalf of Ms Hunt has many questions to answer. The proposed manager, who dropped out at the last moment, also let down Ms Hunt; as we believe did some of the staff that she inherited. 
27.	We have considerable sympathy for Ms Hunt, who has devoted time, money and energy to the project. We wonder whether it would have been possible to have exercised a discretion and provided an informal “fast track” sifting process at an early stage in the application process, so that Ms Hunt could have been advised informally at that early stage and prior to exchange of contracts, that she was likely to fail in her desire to be registered. And we wonder also how it came about that Mr and Mrs Jepson retained their status as registered providers until 30th June 2007, even though contracts had been exchanged by 1st March 2007 with completion by the end of the same month. Who received the payments for those residents being sponsored by the local authority? We were told that it was the Jepsons, because they were still registered as providers; and if the moneys were retained by the Jepsons, there are further questions that require answers.
28.	Sympathetic as we are, the question we have to decide is whether Ms Hunt has demonstrated to us that she is a fit person to be registered as a proprietor of a care home. Sadly, we have decided that she was not in June 2007 and this remains our position in January 2008.
29.	All four reasons for failure to comply with regulation 10(1) as set out in the Notice of Proposal, in our opinion are amply justified by the evidence. We agree also with the failure to put financial plans in place as required by Regulation 25(1). There was a difference in recollection about the waiving of the initial £2000 application fee as between Ms Hunt and Ms Pinner. As a resolution of the difference of view is not necessary for our decision, we make no finding. Regulation 23 deals with fitness of the premises, and all of the evidence demonstrates that there is a failure by the Appellant to appreciate the view of the PCT that the home is not fit for purpose. 
30.	We turn to Regulation 8. Ms Hunt made much of her intention to appoint now as manager, a Ms Daisy Mosura. We have seen her CV, and we agree with Ms Broadfoot who submits that it is not immediately obvious that she would be a suitable person to manage a care home. We have seen no proposed contract of employment, there is no witness statement from her, and we are far from convinced that she would have moved up to Cambridgeshire to manage this care home. When Ms Metcalfe was asked directly by the Tribunal members whether she would work at Cathryn Wheel House in the event that the appeal was successful, her answer was not, perhaps understandably, as fulsome as it might have been. Thus, reliance on Regulation 8 is equally justified by CSCI.
31.	Dealing with Regulation 13(2) and 13(6), we heard evidence concerning the handling of WS; and also concerns about medication recklessness. We do not dwell on these matters in this decision, except to say that the Respondent had ample evidence to rely on failures relating to health and welfare. These are matters of great concern, and we would have expected Ms Hunt to take some steps during the period from the end of June 2007, to have engaged in educating herself, even without going through a formal qualification process, about these matters. Sadly, we can point to no evidence that she has done any such thing. We have not been told of any courses or conferences she has attended, or books she has bought. Mr Wigg said “…if we acknowledge that Ms Hunt was neither experienced nor qualified we can also allow that she was doing a good job of rectifying the situation.” We have formed a different impression to that of Mr Wigg.
32.	Ms Broadfoot adopted Ms Hunt’s own expression of herself as that “my heart rules my head”. There is no evidence of an objective, calm and measured approach to this project. Although we have much sympathy for Ms Hunt, and indeed would hope that CSCI learn some lessons from this case, in particular to ensure that an applicant is aware of all the problems well in advance of the fit person interview, nonetheless Ms Hunt has failed to satisfy us that she is a fit person to manage the Cathryn Wheel House care home. 

Accordingly, the unanimous decision of the Tribunal is that:

APPEAL DISMISSED.

THE DECISION OF THE REGISTRATION AUTHORITY DATED 14th JUNE 2007 TO REFUSE TO REGISTER THE APPELLANT AS THE REGISTERED PROPRIETOR OF THE CARE HOME, CATHRYN WHEEL HOUSE, BE CONFIRMED.

His Honour Judge David Pearl
(President)
Mr Michael Flynn
Mr David Tomlinson

16th January 2008