Eckford v Commission for Social Care Inspection [2007] EWCST 1161(EA) (03 June 2008)

Peter John Eckford

-v-

Commission for Social Care Inspection

[2007] 1161.EA

-Before-

Tony Askham
(Nominated Chairman)
Sally Derrick (Specialist Member)
Bez Chatfield (Specialist Member)

Decision

Heard on 12, 13, 14 and 15 May 2008 at the Combined Court Centre, London Road, Southampton.
Representation
The Appellant represented himself.
The Respondent was represented by Mr Stephen Janisch, solicitor of Radcliffes Le Brasseur
Preliminary issue
At the commencement of the hearing Mr Janisch applied that the restricted Reporting order under Regulation 18 (1) made by the President of the Tribunal on the 17th January 2008 be extended permanently to protect service users.  We indicated that we would consider such a request and decide and include our decision in this judgement.
Appeal 
The Appellant appealed under Section 21 of The Care Standards Act 2000 against a decision of the Respondent to adopt a proposal dated 31 July 2007 under Section 17(3) of The Care Standards Act to refuse the Appellant’s application for registration as Manager of a care home, Stoneham House, Chilworth, Southampton under Section 13(2) of the Act.
The Evidence heard
On Monday 12 May 2008 we heard oral evidence of Janet Shipman, Registration Manager of the Respondent, Carole Payne, Regulation Manager of the Respondent, Wendy Hughes, Regulation Manager of the Respondent and John Joseph Thorn, Regulatory Inspector of the Respondent.
On Tuesday 13 May 2008 we heard evidence from Pat Griffiths, a former Regulatory Inspector, Amanda Marie Brady, Regional Change Manager of the Respondent, Helen Gillingham, District Nursing Sister, Denise Barry, former Care Manager of the Respondent, Jeanette Everett, Regulatory Inspector, Mark Sims, Regulatory Inspector and Laurie Stride, Regulatory Inspector.
On Wednesday 14 May 2008 we heard evidence from Lee Harding, Team Manager of Adult Social Services Hampshire, Amanda Wright, Social Worker, Jeanette Lumley, Social Worker, Patricia Hibberd, former Regulatory Inspector, Annie Kentfield, Regulatory Inspector and Andrew Dinesh, Regulation Manager (Registration Team).
We also read the written Statement of Rachel O’Shea, a Senior Community Staff Nurse.
On Thursday 15 May 2008 we heard oral evidence from the Appellant.
The findings of the Tribunal on the evidence
1.	The evidence presented to us on behalf of the Commission is designed to show that the Appellant has failed to demonstrate that he is a fit person to be registered as a Manager of a care home.  The evidence therefore was directed at two specific issues which first related to the behaviour of the Appellant and is designed to show that he is not of integrity and good character.  The second issue addressed was whether the Applicant has the necessary skills experience to be so registered.  A large amount of the evidence which we have been shown relates to inspections carried out by the Respondent on the two homes where the Appellant was either the registered Manager (Immanuel House in Chandlers Ford, Hampshire) or the acting manager (Stoneham House in Chilworth, Southampton).
2.	Mr Eckford became the Manager of the Immanuel Care Home on 9 January 1999.  There is reported to have been an inspection of the home on 26 January 1999.  He made an application for registration as the Manager of the home under the then registration requirements on 20 March 2002.  That application was successful and his registration was completed on 14 January 2003.
3.	On 26 November 2002 there was an inspection of the home by the then Inspection Authority.  This was the first inspection under the new standards and the inspection report said Mr Eckford fully cooperated.  There were a number of requirements arising out of that inspection.  We were told and accept that such a large number of requirements were consistent with the national experience of homes at the time of their first inspection under the new Standards.  Mr Eckford, in his evidence, told us that he was frankly surprised at the issues which arose and told us that he had under estimated the extent of the change which the new Standards and the new Legislation had brought to the management of care homes.
4.	On 26 April 2003 there was an unannounced inspection at 7pm on a Saturday.  There was no inspection at that stage on the competency of the management but twenty one statutory requirements were listed as a result of the inspection of which eighteen could fairly be described as the responsibility of the Manager.
5.	On 15 May 2003 there was a visit to Immanuel by two registered inspectors, Carole Payne and Wendy Hughes.  Wendy Hughes said that it was apparent during the inspection that Mr Eckford smelt of alcohol and when she and her fellow inspector invited Mr Eckford for a private conversation he indicated he knew the reason was this because he was “high”.  Subsequently he admitted that he had taken pain killers, prescribed to him for a bad back and neck, which he swigged down with a small amount of Whisky some two hours before coming on duty in the morning.  The evidence before us showed that it was not being suggested that Mr Eckford was impaired by the alcoholic drink or the drugs that he had taken but it was argued by the Commission before us that smelling of alcohol at work was unacceptable for a care home Manager.  Mr Eckford, in his evidence to us, accepted that with hindsight he would have been better not to have come to work that day.
6.	On 14 October 2003 there was a further inspection carried out by Anne Lee, John Vaughan and Jeanette Everett where Mr Eckford was described as being “cooperative and helpful” throughout the visit.  Fourteen requirements were identified as a result of that visit, of which ten could fairly be described as being the responsibility of the registered Manager.  However, the report shows that management standards were given a score of three, which, at the time, was “the standard met, no shortfalls”.  The inspection noted that considerable improvement had been demonstrated since the visit on 15 May 2003.
7.	On 19 December 2003 there was a further unannounced inspection undertaken by Anne Lee, John Vaughan and Mr Cooper, a Registered Pharmacist.  Again Mr Eckford is described as cooperative and helpful in the visit.  At that stage it was reported that Mr Eckford was studying for his NVQ4 in Care Management.  The management of the home was rated as two which at that stage was “standard almost met”.
8.	On 10 March 2004 Anne Lee and John Vaughan carried out a further unannounced inspection.  Mr Eckford was again described as cooperative and helpful.  The inspection showed that there were only four statutory requirements of which none could be properly described as a managerial issue as they all related to changes to the structure of the home.  The competence of the management was not assessed.
9.	On 25 May 2004 there was a further inspection, this time for the first time by the Commission who had taken over the regulatory responsibility.  This was an announced visit and was carried out by Anne Lee and John Vaughan.  Mr Eckford is described as having “assisted the inspection”.  Five out of five of the management standards were shown as met.  There were two statutory requirements and the score for the management requirements was a three, ie; that the standard met with no shortfalls.  It was reported that Mr Eckford had received his NVQ4 in Care Management in August 2004.
10.	On the same day there was a pharmacy inspection carried out independently of the main inspection referred to in the previous paragraph.  This inspection said that “the home has made progress and improved greatly”.
11.	Between July 2004 and October 2004 Mr Eckford was away from the home ill, suffering from depression, and he had no responsibility for the day to day management of the home during that period of time.
12.	From the papers in front of us, but unsupported by any written or oral evidence to any extent, there were a number of complaints concerning the home during the period that Mr Eckford was the manager.  There were complaints in March 1999, July 1999, August 1999, February 2000, August 2000, November 2000 and July 2002.  Given the fact that Mr Eckford was subsequently registered as a manager by the regulator at the time, we have concluded that it is unlikely that any of these complaints were so serious as to draw into question Mr Eckford’s capacity to properly manage a care home.  There were further complaints about the home in August 2003, June 2004, August 2004, September 2004 and March and April 2005.  We note that for two of these complaints, Mr Eckford was away ill and it would be wrong for us to in any way conclude that he could have been responsible.  The outcome of the various complaints after the date of his registration were either that here was partial upholding of complaint and partial rejection or total rejection.
13.	On 26 October 2004 the home was acquired by Ashbourne who are a major provider of care home facilities in the United Kingdom.
14.	On 29 October 2004 there was a visit to the home by John Vaughan, the lead regulatory inspector, who was concerned to find that on inspection of the premises, two doors were wedged open.  As a result, he wrote to Mr Eckford as the registered manager on 3 November registering a “serious concern” as to this position.  A copy was sent to the home owners who were believed by CSCI to be High Tree Homes Limited but a response to the concern was addressed by Ashbourne by letter of 12 November 2004 with an immediate Action Plan to resolve the issue.
15.	On 25 January 2005, an unannounced inspection took place by Mr Vaughan and Ms Brady from the Commission.    The inspection records that the inspection took place “with the assistance of the Manager”.  Whilst the preamble to the inspection report shows that five out of five standards were assessed and met for management in fact the Report body shows that in fact the management standards were not inspected at the time.  Nine statutory requirements were noted of which six could fairly be described as those for which the manager had responsibilities for.
16.	On 12 May 2005, there was a further unannounced inspection of the home carried out by a new Lead Inspector Patricia Griffiths and Mr Vaughan.  This inspection was a lengthy one and was carried out also on 20 May 2005.  The evidence as to whether or not Mr Eckford was there on both days is a little confused, but we accept that he was only there for the second day.  There were serious concerns raised about the staffing of the home with issues arising about staff training and the ability of the staff to speak English.  The inspection stated that the home was “managed in a haphazard way”.  Eight statutory requirements were identified of which six could properly be described as relating to the Manager’s responsibility.
17.	Mrs Griffiths in her evidence to us described graphically that at the commencement of the inspection that Mr Eckford appeared disgruntled, was unkempt, that his personal hygiene was poor and he smelt of “stale” alcohol.  Mr Vaughan in his evidence both written and orally before us made no reference to such concerns.  Mr Vaughan had opportunities to do so as he was specifically asked about how he described Mr Eckford’s behaviour when he carried out the inspections.  He said that, he found that Mr Eckford made inspections difficult and some of his colleagues might have found Mr Eckford intimidating, he personally did not.  He made no mention of Mr Eckford being unkempt or smelling of “stale” alcohol and manure.
18.	On 6 June 2005, the Lead Inspector Mrs Griffiths wrote to the owners setting out a whole range of concerns that she had arising out of the inspection concerning the lack of care plans for patients generally.  Mr Eckford says that it was the facts set out in this letter which were used by the new home owners Ashbourne as the reason to suspend him, which they had done by 25 May.  On 29 June 2005 he was dismissed and the note on the Commissions’ file says that Ashbourne told them that this was by reason of poor performance and his inability to manage a care home.  Mr Eckford appealed against that decision but his appeal was dismissed by Ashbourne on 26 July 2005.
19.	Mr Eckford’s account of his dismissal is different and is that following Ashbourne’s take over of the home, major changes were made to operating practices.  In particular, he said that his deputy was made responsible for all day to day care activities, all training was undertaken by the company’s central training department and all maintenance was undertaken by their maintenance department.  Catering was out sourced.  Certain domestic staff were transferred to caring roles without appropriate supervision and training and his main responsibility was around administration and marketing, but, of course, remaining overall in charge of the home generally.  He explained that Ashbourne pushed through an enormous amount of change including change around care plans and nearly all of the day to day procedures of a care home.  As a result, he said he became disenchanted about what they were seeking to do and was considering a move to another employer.  He was concerned about the illegal employment of certain of the employees and he believed that the employer had used the letter of 6 June 2005 and the concerns rightly raised in it as a reason for his dismissal.
20.	On 25 October 2005 there was a further unannounced inspection of the home.  The acting Manager was responsible for showing the inspectors around the home.  The acting Manager was described in the Report as having “no knowledge, skills or professional competence”.  Twenty four requirements were identified and the Ashbourne healthcare team were made responsible for an immediate improvement in the home.  As a result, evidence showed that acting manager was dismissed.
21.	The picture painted to us by the Commission and partially supported by the evidence of Mr Lee Harding from Hampshire Social Services was that the pattern of Mr Eckford’s management of the home was that it started with the home being in a poor state, that following inspections improvements were made but they plateaued out and thereafter the performance of the home declined.  Mr Harding indicated that he felt that the job of managing the home was a “tall order” and that the deputy manager was not “effective”.
22.	The next material date in the evidence that we heard was 28 April 2006 when there was an unannounced inspection at Stoneham House, the home where Mr Eckford would become Manager in due course.  This unannounced inspection was carried out by Mr Rodney Martin.  It appears from the evidence that at that stage the home was being managed by a Manager who had been in post for some eighteen months, a deputy for six years and who might have been an employee of the house for some fifteen years.  That unannounced inspection showed that the standards in the home were generally very good.  This state of affairs is relied on heavily by the Commission when they contrast this with subsequent inspections following the appointment of Mr Eckford as Manager.
23.	Mr Eckford, having been dismissed from Ashbourne, had initially gone to work in his original profession as an Engineer/Technician, but he also registered with a nursing agency, Ambition 24.  As an agency worker he told us that he had worked both as a nurse in hospitals but had also managed on a short term basis two care homes in the absence of the registered manager.  He then heard of the potential vacancy as the Manager at Stoneham.  His evidence, which does not seem to be disputed, was that he started work on 29 June 2006.  His evidence, again which seems to be supported by the registered proprietor was that the intention was that he would work for three months whilst a new registered home Manager was found and indeed efforts were made to try and find a new Manager by advertisement and interview but none was actually appointed.
24.	The previous Manager left the day that Mr Eckford started work at Stoneham.  On the following day he identified that one of the residents, a Mrs F, had a severe sore and he doubted whether she was properly placed at the home.  As a result he identified this as he was obliged to immediately to Social Services.  
25.	On 5 October 2006, a District Nursing Sister, Helen Gillingham and a Senior Community Staff Nurse, Rachel O’Shea went to the nursing home to visit a patient “M” who had dementia and had recently had a stroke.  As a result of the visit, Sister Gillingham spoke to Social Services an indicated that her main concern was that on arrival at the home, Mr Eckford’s breath had smelt heavily of alcohol and that this had been noticed by Mrs O’Shea.  She indicated that when in his office they had seen a bottle of whisky and he had come across as “menacing”.
26.	She also indicated that the patient “M” had a grade 1 pressure sore on her bottom and that the pressure mattress she was on was too hard which had probably caused the pressure sore and that Mr Eckford did not know how to operate the mattress.
27.	This referral to Social Services led to a series of actions being taken by Social Services.   The documents in respect of the adult protection issue which arose repeat the concerns which had been expressed about the smell of alcohol.  A review and re-assessment of the residential care on 9 November 2006 identified that the advocates for the M had never had any concern with the care that she had received in the home.  In fact they said that as far as the care went, they felt that it had improved over the last year and they visited M on a weekly basis.  The Care manager reported that training advice had now been given to the carers and the care of M was adequate but the home would continue to be monitored.  Despite this outcome the matter proceeded to a series of planned meetings, the first on 28 November 2006 which was attended by Lee Harding, the Team Manager, Mr Blundon, a Service Manager, Eric Smith, the Team Manager from Southampton Authority, Sarah Garret for Rapid Response in Southampton, Rachel O’Shea and Helen Gillingham.  Much of the meeting was taken up with Sister Gillingham’s concerns about what she and her colleague had found on the visit and mostly around the smelling of alcohol.  Mr Smith was recorded at that meeting identifying that Southampton Authority had reviewed several clients over the last few months that appeared well and cared for.  He also said that one lady who had been reviewed three or four months after placement was happy.  It was recorded that there was a very mixed picture of care provided at Stoneham House.  
28.	On 20 December 2006 there was a further meeting which was attended by Mr Harding, Mr Blundon, Mr Smith, Amanda Wright, Jan Lumley, Sarah Garrett, Pat Hibberd and the Registered Proprietor, Mrs Bellett and her daughter Miss Bellett.  That meeting dealt with the concerns which had been raised at the first meeting and particularly those raised by Sister Gillingham, namely moving and handling standards, the mattress, feeding and drinking and the alcohol issue.  It was agreed that standards needed to be improved at the house and that an Action Plan was necessary.
29.	There was a further meeting on 17 January 2007.  This was primarily to discuss the inspection which had taken place by CSCI on 15 January 2007 (see paragraph 35        below).  Pat Hibberd, the Registered Inspector, outlined her findings.  There were further discussions about the issue of the air mattress and moving and handling and the question of feeding and care plan.  Mrs Bellett was recorded as saying that Mr Eckford worked very hard and that she was very happy with him and met their requirements.  The issue of Mr Eckford’s apparent admission to having “falsely signed for medication” is recorded.  There was a further discussion as to the issue of alcohol on Mr Eckford’s breath and it was agreed that the Action Plan would need to be produced.
30.	On 14 February 2007 there was a further meeting.  At the start of the meeting it is recorded that Mrs Bellett produced an A4 size folder containing a written plan for improvements to the home.  There are 26 points in the Plan including care and medication plans.  Mr Harding asked who had put the Plan together and Mrs Bellett confirmed that it was Mr Eckford.  The Plan was then gone through.
31.	During the course of that meeting, a conversation took place in which it is recorded that Mr Harding asked whether Mrs Bellett was aware that Mr Eckford had run a home in the past.  All the witnesses at the meeting who we heard and the written minutes indicated that both Mr and Mrs Bellett said no.  But when Miss Lumley asked if they had checked Peter’s references, Sue Bellett said yes they had appropriate references.
32.	At the end there were further discussions about the complaint about alcohol and Mr Harding told Mrs Bellett that there would be six unannounced inspections to ensure that the Action Plan was working.  There were further discussions about the need for a full employment check about Mr Eckford.  The Action Points were the inspections, a full employment check on Mr Eckford and Mr Eckford applying to register as the Manager.  
33.	The final Review Meeting took place on 20 June 2007.  It is recorded that Mr Harding stated that since the investigations started, great improvements have been made in the standards at Stoneham House.  The unannounced inspections had gone well with Social Workers being impressed at what they had found.
34.	Throughout the time that these meetings and inspections had been going on, a Caution had been placed on the admission of residents to the home.  Discussion at the meeting of 20 June was around how many residents could properly be admitted by the home once the caution was lifted.  Mr Smith, of behalf of Southampton said that they were pleased with the improvements and would now be placing new residents at Stoneham. 
35.	On 15 January 2007, there was a further unannounced visit by CSCI through two Inspectors Patricia Hibberd and Jeanette Everett.  The inspection Report says that they were assisted by the Registered Proprietor.  The Report was a negative one and specifically said “that the Manager (Mr Eckford) does not provide leadership, which ensure staff are supported and residents’ health, safety and welfare are promoted and protected through the home’s practices”.  Mr Eckford’s view recorded in the inspection report was that he did not consider the care provided in Stoneham House to be poor but, agreed that the visit had identified areas that required improving.  The report identified that Mr Eckford had signed for medicine which he had not then handed to the client but to care staff who had then given it to the client. Mr Eckford denied that he had signed the record in this way.  A disagreement as to whether it was correct for medicines to be put from their wrappers into a pot before being handed to the client was also discussed.  These issues were not relied on as evidence of Mr Eckford’s lack of integrity.
36.	The Commission rely very heavily on this inspection as clear evidence that under Mr Eckford’s management the home had deteriorated in quality from the previous inspection of 28 April 2006.  In that respect, in October 2006, Mr Eckford had ceased to be an agency Manager and was in effect acting as Manager although the CRB and other checks were awaited on him.  He was appointed Manager in January 2007.
37.	Mr Eckford’s evidence was that when he joined the home at the end of June 2006, he found the standards generally poor and told us that if there had been a CSCI inspection that day the best outcome would have been a rating of “poor”.  He also pointed out that many of the criticisms of the policies and procedures set out in the January 2007 Inspection Report would be of exactly the same policies and procedures which had been in place at the time of the previous report on 28 April 2006 which had described them as “satisfactory” or “good”.  He made it clear to us that all of the improvements had been managed through entirely by him and that he had been responsible for the putting the Action Plan together and ensuring that it had been carried out.  All the evidence that we found showed that the Registered Proprietor and the other members of her family and other senior employees of the home would not have been capable of compiling the Action Plan or seeing it through.
38.	Whilst we heard no oral or written statement evidence about the issue, an email on the file before us showed that on 27 February 2007 Shelagh Betteridge, a Senior Practitioner/Social Worker employed by Southampton Authority had visited Stoneham House to see a resident.  She reported that Mr Eckford had taken her into the office to talk but he was quite agitated, red in the face and after he had been speaking for a few minutes there was a distinct smell of alcohol in the room.  Ms Betteridge indicated that she could not see any alcohol and Mr Eckford was not drunk but that she gained the impression that he had had a drink.
39.	On 25 May 2007, there was a further unannounced inspection by Mark Sims.  It is recorded that the Manager, Mr Eckford, was cooperative and helpful and the Report describes the management standards as “good”.  There were three statutory requirements noted and all previous requirements (those set out in the negative Report of 15 January 2007) had been carried out.  The evidence that we heard concerning this and other inspections suggested that if a previous inspection had found the standard “poor”, it would not be possible for the next inspection to be “good” but would be merely “adequate”.  Similarly if there was a “poor” score in any of the three main inspection areas, the best that the overall report could be would be an “adequate”.
40.	On 18 April 2007 CSCI received the completed application for Mr Eckford to be registered as the Manager of Stoneham House.  In that application form, Mr Eckford clearly identified that he had previously been dismissed or given a spoken or written warning as part of disciplinary proceedings.  Attached to his application was a career history from the commencement of his employment in 1969.  The career history finished with his employment with Ambition 24, and clearly identified that he had been dismissed from Ashbourne.  Upon receipt of the application, CSCI through its regulatory inspector, Janet Shipman, who dealt with the application, wrote to Mr Patel at Minster Care Management Limited for a reference and also to Ambition.  Ambition’s reference was unable to give any information about Mr Eckford as “temporary staff do not work under supervision” but the Nurse Manager and Registered Manager of the company went on to say “I can confirm that we have had positive feedback from our clients regarding their work”.  This reference was deemed unsatisfactory by CSCI and as a result recourse to a reference was made to Mrs Bellett, the Registered Proprietor of Stoneham House on 14 June 2007.  That reference formed a key part of the evidence in this case.  The reference was dated 20 June 2007 but was not signed by Mrs Bellett.
41.	There was much evidence at the hearing as to whether or not Mrs Bellett could read and write English.  Mr Eckford was clear that she could not and that everything was written for her, or typed for her, within the home, read to her and that she then signed it.  He identified that the likely author of the reference was the Administration Manager at the home.  He indicated that he had no part in its preparation and signing.  He said that he wished he had.  The reference specifically asked “Do you know whether there has been any disciplinary investigation or action taken against the applicant?  If yes, what was the outcome?”  The response was “no disciplinary investigations are known”.  Under the heading of questions about technical qualifications, it was indicated that “Mr Eckford had managed residential homes previously”.
42.	The evidence adduced from the various Social Services witnesses who had been at the Social Services meetings to which we have referred above, was that they believed Mrs Bellett was capable of reading English and thought that on occasions at the meeting she had purported to read policies etc during the meeting.
43.	Mrs Shipman, in accordance with the procedures we understand for CSCI in dealing with these applications, sought help from all of her colleagues and others who had been involved in dealing with Mr Eckford since 1999.  One email dated 20 June 2007 from Wendy Hughes, who had been an Inspector at the time in 2003, reminded Janet Shipman of the incident when Mr Eckford had smelt of alcohol and had admitted taking strong pain killers and washing them down with brandy before he came in.  Wendy Hughes said in that email “what Carol and Janie thought was an unusually high number of very strong pain killers he was taking was in excess of what he was prescribed.  There was a strong suggestion this was linked to prescribed medication for residents not being accounted for.”  We have neither heard nor read any evidence supporting this conjecture.  Similarly, on Mrs Shipman’s registration report, that was prepared for the purposes of making a decision on the application, she recorded evidence she had obtained from other inspectors of Immanuel, one of which from Pat Griffiths read “this chap is not fit to be registered, his management role is one of intimidation, Social Services like him because he will take on any one, regardless of whether or not he can meet his needs”.  We have heard no evidence to support such a statement as to Mr Eckford’s management style, nor his acceptance of patients, whose needs could not be met. Other comments made from other inspectors were more measured. We were left with the impression that these uncorroborated remarks coloured the views of those who dealt with the application.
44.	On 27 June 2007 there was a “fit person” interview with Mr Eckford conducted by Janet Shipman and Andy Denness.  Mr Denness is Janet Shipman’s line manager and would be responsible for taking the ultimate decision on Mr Eckford’s application.  We were told that it was normally common for one inspector to carry out the interview which usually took around 40 minutes but they anticipated that this would be a “difficult” interview so it was decided both should attend.  During the meeting, which lasted 2 hours, both Mrs Shipman and Mr Denness noted that on occasions he lost eye contact, became a bit agitated and raised his voice, although these comments were only added to the report form of the meeting after the meeting had been concluded.
45.	As a result of her enquiries and the interview, although Mrs Shipman’s report identified that Mr Eckford did demonstrate through the “fit person interview” understanding of his management responsibilities and knowledge of his legal responsibilities under the Care Standards Act, she concluded that Mr Eckford had not demonstrated his fitness to be registered as the Manager for Stoneham because he was not of integrity and good character.  Three specific issues were relied upon by her to support this view:
a.	The fact that Mr Eckford maintained that he had informed Mrs Bellett that he was dismissed from the last care home that he managed but the reference (see paragraphs 40-41 above) indicated “no disciplinary investigations are known”. 
b.	That on three occasions, visiting professionals including CSCI inspectors had noted that Mr Eckford had smelt of alcohol.  Whilst it was recorded that on two occasions the investigations by the home owners proved the allegations unsubstantiated, the earlier one had been accepted by him.  It was also recorded that Social Services had strong suspicions of him drinking whilst on duty but had not been able to substantiate this. 
c.	That Mr Eckford had a dismissive attitude towards District Nurses, he was agitated and menacing and he was agitated and raised his voice at the “Fit Person Interview”.
46.	Secondly, she concluded that despite his qualifications as a nurse, the fact that he had previously been a registered manager, and held a registered manager’s GNVQ level 4 qualification, he did not possess sufficient competence and skill to be registered as the manager of Stoneham House.  In support of this conclusion she relied upon the inspections at Immanuel and Stoneham; and to the adult protection investigations involving Hampshire and Southampton Authorities. Mrs Shipman fairly recorded that Social Services stated that they had concerns about Mr Eckford’s ability to manage and run the care home but that he had a compassionate side and would take difficult to place clients and was very good at meeting their needs but this was often at the detriment of other residents.  They would have liked to have seen Mr Eckford operating as a manager for a further six months.  She recorded at the fit person interview he was able to demonstrate a good knowledge of the Care Standards Act, the Regulations and the Minimum National Standards and had a good understanding of policies and procedures for the protection of vulnerable adults, a clear understanding of reporting of allegations under the Hampshire County Council’s policy and he was able to describe the importance of equality and diversity.
47.	Her recommendation was that the application should be rejected. In her oral evidence she was unable to explain to us which of the information she had received she accepted as true and which she had discounted in making her recommendation. 
48.	There was then a Management Review meeting of 3 July 2007 in which the issues were to be discussed were: (a) Mr Eckford’s integrity and the fact that registered provider of Stoneham House did not know he was dismissed from his previous managers post of poor performance (b) The fact that Mr Eckford had become angry and raised his voice at the Fit Person Interview (c) the fact that his previous poor performance when registered as the manager of another care home and (d) that Social Services had stopped placing new service users until recently and (e)  his reported drinking on duty. 
49.	The outcome of this review was that Mr Denness concluded that he was not going to register Mr Eckford who was duly informed of this. 
50.	Mr Eckford responded in detail to the refusal to register him questioning many of the apparent findings of fact which had been made by CSCI. Despite the issues raised by him the decision was subsequently confirmed by CSCI.
51.	On 5 December 2007, there was a further unannounced inspection of Stoneham house carried out by Laurie Stride.  It was noted that the Manager accompanied Miss Stride on the visit.  The Report of the inspection notes specifically that a complaint which had arisen had been effectively and properly responded to by the home.  The Report on the management of the home indicated that the management was adequate but that Mr Eckford did not demonstrate an up to date knowledge of dealing with Dementia an issue which he disputed before us.
52.	Finally on the 8 January 2008 Mr Denness rang Mrs Bellett to finally check the position as regards the reference to Mr Eckford.  She was asked about the reference in which she had stated that she was not aware of any disciplinary action.  She told him that she was aware that Mr Eckford had been dismissed from his last post and that of course because her English was poor she had not understood the question.  She told him that at his last post he had reported his employer to CSCI for illegally employing a member of staff.  As a result of this the employer blamed him for everything and then dismissed him.  Despite this information Mr Denness and CSCI still maintain their position on the issue believing at the relevant time Mrs Bellett did not know that Mr Eckford had been dismissed by Ashbourne.
The Law 
Section 13(2) of The Care Standards Act 2000 provides that:-
If the registration authority is satisfied that—
(a)	The requirements of the Regulations under Section 22; and
(b)	The requirements of any other enactment which appears to the Registration Authority to be relevant,
 are being and will continue to be complied with (so far as applicable) in relation to the establishment or agency, it shall grant the application; otherwise it shall refuse it.
Regulation 9(1, and 2(a)) of The Care Homes Regulation Act 2001 provide that:-
	9(1)	A person shall not manage a care home unless he is fit to do so;
	9(2)	A person is not fit to manage the care home unless he is (a) of integrity and good character;
Regulation 10(1) of The Care Homes Regulations 2001 provides that:-
	10(1)	The Registered Proprietor and the Registered Manager shall, having regard to the size of the care home, the statement of the purpose, and the number and needs of the users carry on or manage the care home (as the case may be) with sufficient care competence and skills.
Conclusions. 
Our approach 
A	We have adopted the following principles in reaching our conclusions
B	 It is for the applicant to prove to us that he is a fit person to manage a care home. Any doubts that we have must be resolved against registration.  We make the decision with the evidence which exists at the date of the hearing. We are not reviewing the decision made by CSCI.
C	The requirements of Regulation 9 are mandatory and must be satisfied before we could allow the appeal and grant the registration.
D	The first question we have asked ourselves is “is the applicant of integrity and of good character”.  If we had concluded that the answer was “no” we would have immediately dismissed the appeal.  If the answer was “yes” then the second question is whether he has the necessary qualification, skills and experience. 
E	In this case there is no question to ask ourselves whether he is physically and mentally fit to manage a care home as it is accepted by the Respondent that he is. 
F	This was a case involving over one thousand pages of documentation and spanning a period of time from 1999 to the date of the hearing.  During that period of time Mr Eckford was nearly continuously employed as a registered manager or acting manager of a care home. 
Is the Applicant of integrity and good character?
G	As is apparent from the facts that we have found and the position of both parties that we have set out, in refusing the registration and before us CSCI rely on certain key issues to show that Mr Eckford can not satisfy us that he is of integrity and good character.  We have taken to the words “integrity” and “good character” to have their ordinary meaning. 
H	The new shorter Oxford dictionary defines “integrity” as soundness of moral principle; the character of uncorrupted virtue; uprightness honesty and sincerity”.  By good character we have taken this to mean of being of “good repute” and/or “good moral strength.” 
I	The first matters raised by the Respondents on which they rely is the contention that Mr Eckford had never informed Mrs Bellett the registered proprietor at Stoneham House that he had been dismissed from his previous home Immanuel where he had been the registered manager.  On that they had relied in their letter of refusal solely on the reference which they had taken up from Mrs Bellett.  We heard a lot of evidence on this subject.  From that evidence it was clear to us:
i)	That ambition 24 clearly knew as the registered agency that Mr Eckford had been dismissed by Ashbourne and had taken up references from his previous employer.  That was confirmed in a document sent from them to Mrs Bellett.  We are satisfied on the evidence we have heard that it is more likely than not, that Mrs Bellett does not read or write English although she speaks it tolerably well.  We find as a fact that she did not personally write out the reference on which CSCI rely and we also note that she did not sign it.
ii)	Mr Eckford told us and we accept that his career record, in the form attached to his application for registration to CSCI, was available to Mrs Bellett in his staff file at Stoneham House within a few days of his joining. 
J	As a result we have no doubt in our mind that Mr Eckford acted entirely honestly, with integrity and professionally in the way in which he dealt with his application for employment with Mrs Bellett.  It has always been Mr Eckford’s position that he had applied in writing for the position and filled in an application form and in that that application had made it clear that he had been employed and dismissed by Ashbourne.  
K	We accept that the witnesses we had heard from Social Services who were at the meeting to which we have referred, gained the impression that neither Mrs Bellett nor her daughter knew that Mr Eckford had been employed by Ashbourne or had previously been employed in a care home.  We find the latter puzzling given that it seems to us inconceivable that the proprietor of a care home would employ an acting manager, who had not had previous experience of running a care home even for a three month period.  We find it increasingly more difficult to accept this in the situation which applies in this case where the registered proprietor clearly has no ability to run a care home without an experienced manager. 
L	The second issue relied upon is the three or four times it is said that alcohol was smelt on Mr Eckford’s breath.  The first occasion we have explored in detail (paragraph 5 above) clearly is admitted by Mr Eckford.  We accept his explanation and we accept that none of the evidence suggests that at any time Mr Eckford has neither consumed alcohol nor been under the influence of alcohol so as to impair his ability to carry out his work.  He has been frank about these issues throughout.  He told us that the smelling of alcohol was unacceptable at work given his position and with hindsight on this first occasion he should have stayed at home. 
M	As to the incident of the 20 May 2005 again Mr Eckford was very honest and clear in his evidence to us.  He told us that it might well have been that his beard was long and bushy, that he might have looked dishevelled if he had been doing certain activities around the home and that he kept goats at the time and so he could well have smelt of “manure”.  We read that he is a smoker.  He denied that he smelt of alcohol on that time although accepted that it was possible although very unusual that he might have drunk on the evening before and could have smelt of alcohol.  We noticed that only one inspector had mentioned this situation and had given evidence to us where as the other Mr Vaughan had not done so and made no mention of it in his written statement. 
N	The third incident relied upon is the incident involving the two district nurses on 5 October 2006.  We note that Mrs Bellett’s enquiry had found that there was no evidence to support the allegation that had been made.  Mrs Bellett said “Mr Eckford comes to work at 7.30 each day therefore leaving his home before 7.00 am every day and has never to my knowledge drunk alcohol whilst on duty.  I have asked all my staff and none of them have ever smelt alcohol.  He had never appeared intoxicated.  He does however smoke and sometimes smells of cigarettes.  The two bottles of alcohol in the office has been there for about two years and belongs to one of the residents”.  We find this a difficult incident to make a finding on.  We accept that the evidence given by Sister Gillingham and Nurse O’Shea is genuine and is likely to be true but neither of them maintained that the alcohol was fresh or had been drunk on duty.
O	The suggestion that alcohol was smelt on Mr Eckford’s breath on the 27th February 2007 was not supported by any evidence before us, although it may have been the reason for the comment recorded in Mrs Shipman’s report that Social services had strong suspicions of him drinking on duty (see 45.b. above).  On balance we are satisfied that the three incidents together spread as they are over a long period of time do not suggest in any way that Mr Eckford is not of integrity and good character.  Personal appearance and poor personal hygiene are unlikely in our judgement of themselves to be evidence of either poor character or integrity. 
P	The final issue relied upon to show that Mr Eckford should not be able to satisfy us that he is of good character and integrity is the various allegations that his behaviour towards visiting professionals at both homes has been “intimidating”.  Here we found Mr Eckford’s evidence compelling and honest.  He told us that his face does go red on occasions and this is often as a result of his medication.  He also told us that he sometimes becomes agitated often after he has had a high dose of pain relieving medication.  He accepted that he can become anxious and that on occasions his voice can rise and that, when it does and he realises it, he is the first to apologise.  He told us that he would have been upset if people had identified the fact that he was intimidating them; it would never have been his character or wish to do so.   In closing the solicitor for CSCI accepted that this issue was not now a large one and in reality only three witnesses make any mention of the behaviour being intimidating or difficult to deal with.  The evidence from many of the inspection reports show that Mr Eckord was “cooperative and helpful” at inspections or at least “”assisted with “the inspection”.  Whilst we accept that Mr Eckford can be anxious and raise his voice and can be seen to be agitated we do not find that Mr Eckford’s behaviour is of such as to mean that he is not of good character or be of integrity.
Q	Having looked carefully therefore at the three main issues which were relied upon by CSCI and having seen Mr Eckford over four days before us we find nothing which would lead us to conclude that he was not of good character and integrity. 
Issues of competency and skills
R	As a result we turn to look at the issue of competency and skill.  We have looked very carefully during the course of this hearing at every piece of evidence which related to inspections and the care of clients in the two homes in which Mr Eckford has worked.  We concentrated on looking to see what is the evidence which relates to his competence and skill or the alleged lack of them. 
S	It is apparent to us that initially the standards at Immanuel were probably not good or those which are now expected. Indeed the first inspection under the new National Minimum Standards shows that that was the case.  We started however on the basis that there would have been many homes in that position in 2002.  We noted that the next inspection still showed that there were 18 outstanding requirements but by the 14 October 2003 the Inspectors were noting considerable improvements and that by the 9 December 2003 the Quality Standard was adequate and by March 2004 there were no requirements and the standards were adequate and the pharmacy inspection carried out the same day noted “the home has made progress and has improved greatly”.  
T	By that stage therefore the evidence suggested to us that Mr Eckford had made substantial improvements in the home and that during that period of time he had become a registered manager and had done his NVQ4 in Care Home Management. 
U	The position had changed for the worse by the inspection on 25 January although we have noted that Mr Eckford had been away from the home through ill health from July 2004 to October 2004.  We have also noted quite clearly that his deputy had been described later by the Commission as having “no knowledge skills or professional competencies” so it is not surprising perhaps that the standards in the home declined during his period of absence. 
V	We have also taken into account that Ashbourne acquired the home just after he returned from ill health.  We have accepted Mr Eckford’s evidence that Ashbourne not surprisingly sought to push through a whole range of major change initiatives.  These initiatives took away from Mr Eckford the primary responsibility for a lot of the areas that he had previously had hands on responsibility for.  It appears to us that staff morale was not high in the home for a period of time and that Mr Eckford himself was seeking to leave.  That does not excuse the standards in the home being allowed to slip so that by the 12 May 2005 the manager that was described as managing the home “in a haphazard way”.  This raised concerns with us as to Mr Eckford’s competence and skills in running a home. 
W	We then looked with care what happened at Stoneham since he has been in charge. 
X	We have accepted Mr Eckford’s evidence as to what he found when he took over the home on 29 June.  We do not believe that the previous inspection report of April properly described the standards which were at the home at the end of June.  But is seems to us that that is partly demonstrated by Mr Eckford’s immediate concern on arriving as to the position of patient F and another patient who he felt should not be in the home. 
Y	Having heard all the evidence whilst we understand the argument adduced by the Commission that the improvements at the Stoneham House only came about because of the intervention of Social Services Department and them pointing out the areas of improvement that were required rather than Mr Eckford himself having done so, we found without doubt that the action plan which has raised the standards in the home was prepared by Mr Eckford and that he has been entirely responsible for its implementation.  Given the standards that he had started with and the Inspection Report of the 15 January 2007 this is of no small credit or effort on his behalf.  If the matter had concluded with the Inspection Report of 15 January 2007 and the clear view reached by two experienced Inspectors that the manager was not providing leadership we would have found against Mr Eckford.  
Z	We considered the vulnerable adult issues which were raised whilst Mr Eckford has been at Stoneham.  In our view the evidence does not suggest that the issues were such as to show that Mr Eckford’s care, competency and skill are materially in doubt.
AA	However the matter has not finished there.  Mr Eckford compiled the action plan.  He had seen through its implementation, Social Services spot checks over a six month period revealed continuing improvement and no cause for concern.  Two subsequently reports by the Commission of 25 May 2007 and 5 December 2007 both unannounced show that the management in the first case was good, all Statutory requirements previously set had been met and the second report showed that management was adequate although there was some concern about Mr Eckford’s up to date knowledge of the care of dementia but no new statutory requirements were identified.
BB	We noted very carefully the views of the Social Services department when they were asked for their views on Mr Eckord’s suitability at the time of the application for registration. Those views were that they wished to see Mr Eckford in place for a further six months before they had made up their mind as to his suitability for registration.  By the time we heard this case they had had 12 months to make up their mind but despite inviting Mr Harding to express a view on the department’s behalf as to this at the hearing he refused to do so saying this was a matter entirely for CSCI.  Our view is that the 12 months has shown nothing but an improvement in standards achieved through Mr Elkland’s action plan and his implementation of it.  That being the case it is difficult to see that Social services could have fairy or properly objected to the registration. 
CC	We noted the Commission’s evidence that it was in a very small minority of cases that application for registration of a manager was refused.  We are mindful of their evidence that they believe that the history of Mr Eckford’s management is that he achieves improvement, that improvement plateaus out and then falls away.  They point to pattern at Immanuel as showing that and fear that that would be the pattern of the Stoneham.  Whist we understand the fear and see that there may have been some evidence to support that at Immanuel there seems to us to absolutely no evidence to support that conclusion at Stoneham at the date of the hearing. Mr Denness in his evidence said if he was deciding the matter at the date of the hearing he would still have concluded it by refusing registration despite what has happened since the date of his original decision.

Our conclusion
DD	In the circumstances Mr Eckford has satisfied us that he is of “integrity and good character” and that he has the skill and competence to be registered as the manager of the Stoneham Care Home in Chilworth, Southampton. 
EE	We have also concluded that there is no compelling reason why the Restricted Reporting order in this case should be extended as we do not identify by name any service user and the risk therefore of identification is remote.  The interest of the public in understanding the reasons for this decision and the background facts outweigh in our view the case for such an order. However we will allow both parties the opportunity to apply in writing in 14 days for the extension of that order setting out their reasons and the order will continue in the meantime.
DECISION:
1.	The unanimous decision of the Tribunal is that the Appeal be allowed
2.	That The Restricted Reporting order of the 17th January 2008 will cease with effect from the 21st June 2008 unless either party applies for an extension of the order by that date in writing and setting out the reasons and facts relied on  and the Tribunal considers that the order should be continued.

Mr Tony Askham
(Nominated Chairman)
Sally Derrick 
Bez Chatfield

Date:    3 June 2008