Webber v Welsh Ministers [2008] EWCST 1235(EA-W) (21 May 2008) 

Mrs Janine Webber

-v-

Welsh Ministers
[2008] 1235.EA-W

DECISION

Before: Meleri Tudur, Chair, sitting at the Newport County Court, Clarence House, Newport on the 9 May 2008.

Representation: Mrs Webber, the Applicant, was assisted by her husband, Mr Trevor Webber.

Mrs Rachel Stephens, Solicitor, represented the Respondents.

Appeal

1.	The Applicant appealed under section 21 of the Care Standards Act 2000 (“the Act”) against the notification to her by letter dated 8 January 2008 of the decision of the Respondents to adopt the Notice of Proposal to refuse her application for registration of Cilgerran Domiciliary Care (“CDC”) as a domiciliary care agency, pursuant to section 12 of the Act.

2.	In the Response to the Applicant’s appeal, the Respondents requested a preliminary hearing for the Tribunal to consider whether CDC was a domiciliary care agency, pursuant to Section 4(3) of the Act or whether it fulfilled the description of a care home contained in Section 3.

Background

3.	On the 14 May 2007, the Applicant made an application for registration pursuant to Section 12 of the Act in respect of CDC, as a domiciliary care agency.

4.	On the 10 December 2007, a Notice of Proposal to Refuse Registration was issued indicating the intention of the Respondents to refuse the application, primarily, because CDC did not meet the criteria for a domiciliary care agency, but rather fulfilled the description of a care home.

5.	The Applicant made representations in response to the Notice of Proposal, which were considered, along with the Notice by Mrs Susan van Eijkern, Regional Director of the Care and Social Services Inspectorate for Wales (“CSSIW”) South East Region.  Mrs van Eijkern concluded that the Notice should be adopted and registration refused because CDC did not meet the description of a domiciliary care agency.  In the letter of refusal, she explained that, primarily, her reason for refusal was that the service proposed fitted more closely with the description of a care home.  Mrs van Eijkern stated in the letter that no finding was made as to the Applicant’s fitness as a potential provider. 

6.	The Applicant appealed against the decision on the 28 January 2008.  In her appeal, she stated that she did not consider the issues raised by Mrs van Eijkern to be relevant to her application as the proprietor of the service, and that issues arising from the paperwork and policies should be raised with the agency manager, who was their author.  She went on to express her view that her application for registration had been treated unfairly because she had previously appealed against a CSSIW decision in 2005.

The Law

7.	Section 3(1) of the Act states: “ For the purposes of this Act, an establishment is a care home if it provides accommodation together with nursing or personal care…”  A care home can provide personal or nursing care or a combination of both.  The definition of “personal care” is very broadly based and includes assistance with bodily functions where such assistance is required (section 121(9)).

8.	Section 4(3) of the Act states that a domiciliary care agency is “An undertaking which consists of or includes arranging provision of personal care in their own homes for persons who are unable to provide it for themselves.”  The Act does not provide a definition of the word “home”, which must therefore be given its ordinary meaning.

9.	In the case of Regina (Moore and Others) v Care Standards Tribunal [2005] EWCA Civ 627, the Court of Appeal stated that service user choice in the context of the provision of services is essential to the delivery of care services.  Major emphasis must be placed on “real and significant choice of the service user.”  In that case, the court concluded that although a lessor and lessee relationship could be an indicator of a situation where an establishment did not provide both accommodation and care, that was not determinative.

The Hearing

10.	The Tribunal heard oral evidence from Ms Celly Morgan, Lead Inspector, CSSIW; Wendy Goldie, Inspector, CSSIW; Ian Bellamy, Team Leader, CSSIW and Susan van Eijkern, Regional Director, CSSIW.  The Tribunal bundle also included copies of all the documents submitted by the Applicant in support of her application for registration as well as statements from all the Respondent’s witnesses.

Evidence

11.	Mrs Celly Morgan gave oral evidence about her involvement as Lead Inspector in the consideration of the application for registration submitted by the Applicant. Of particular concern to her was Mrs Webber’s inability to separate the role of “landlord” and “provider” in the context of the service, as reflected by the fact that the proposed Tenancy Agreement referred to “the Agency” in the role of the landlord throughout.  She also noted the description of CDC in the document entitled “Service User Enquiry” as “..a small unit which care’s(sic) for Adults with Learning Disabilities.  “We offer 24 hour support....”.”  Other concerns were a statement in the Tenancy Agreement that the tenants will bring their personal belongings into their home, their belongings being inventoried and cared for by all members of staff and the agency’s “Aims and Objectives” referring to the CDC providing a “..warm, safe and secure home for five people with learning disabilities”.  All of the examples mentioned led her to the conclusion that the Applicant was unable to separate the functions of providing accommodation and providing care to the service users, which placed CDC in the position of meeting the description of a care home rather than a domiciliary care agency.

12.	Mr Ian Bellamy gave evidence that he had not been satisfied during the processing of the Applicant’s application to register, that Mrs Webber was intending to make provision as a domiciliary care agency.  From reading the application and the policies supporting it, he highlighted several areas of concern: Mrs Webber had indicated in the application that 31 Cilgerran Close was to be her own family’s home as well as that of the service users, and CDC would be run from an office in the same building.  He could not understand how, in those circumstances, 31, Cilgerran Close could be called the service users’ own home.  There were references in the Tenancy Agreement to changes in the service charges, suggesting that there was no separation between the landlord and the care provider.  This, together with the lack of a timescale for the cancellation of domiciliary care workers, led him to the conclusion that the accommodation is dependent on accepting a service from CDC and in his view the service user’s right to choose who provides their personal care was seriously compromised.  He also mentioned the same concerns as were expressed by Mrs Morgan in her evidence and concluded that the Applicant was describing a care home within her application.  He prepared the Notice of Proposal to Refuse Registration setting out the detailed grounds of his concerns.

13.	Mrs Susan van Eijkern gave evidence that she had concerns about the several references in the Applicant’s documentation to “home” in the context of CDC and underlined the relevance of the issues mentioned by the inspectors.  She further noted that the business plan did not separate income from rent and that from the provision of services, indicating a link between the two aspects of the service.  Mrs van Eijkern confirmed that she had tried to advise and assist the Applicant by suggesting alternatives to the current application for registration.  Mrs van Eijkern confirmed her view that the Applicant had been treated fairly throughout the application process and that the CSSIW procedures in dealing with her application and her appeal were clear and transparent .  She vehemently denied the allegation by the Applicant that there had been any prejudice against her or unfairness in dealing with her case.

14.	The Applicant did not give evidence but made submissions to the Tribunal regarding her appeal.  In her submissions, she stated that if any of the tenants living in 31, Cilgerran Way wanted their care package provided by another agency, then that would not present a problem. The Applicant expressed her view that she had not received support or appropriate advice from CSSIW during the course of her application.  She maintained that she had been subject to prejudice by the inspectors and unfairness because of her previous application and appeal in 2005.  She confirmed that CDC did not intend to offer domiciliary care to anyone other than the residents at 31, Cilgerran Way.

15.	Mrs Stephens outlined the legal framework and reiterated the Respondent’s case that CDC as described in the application for registration met the description of a care home rather than a domiciliary care agency.  

Tribunal’s conclusions with reasons.

16.	There were a number of issues identified by the inspectors which suggested that the offer of accommodation to the proposed service users was a whole package of accommodation and care rather than two separate arrangements, or arrangements which were capable of being separated.

17.	In her appeal, the Applicant disowned the policies and documentation stating that they had been prepared on her behalf by the proposed manager of CDC, but she did not address the critical issue of the function of the agency or how her proposed care to users within their own homes was to be delivered so as to provide a real choice for the service user in the provider of the service.

18.	The documents presented by the Applicant used the terms “tenants” and “service users” interchangeably, and particularly within the “Aims and Objectives”. The term “the Agency” was used in place of “Landlord” throughout the proposed Tenancy Agreement.  The content of that document appears to be a licence to occupy rather than a Tenancy Agreement and the terminology betrays a lack of separation between the provision of accommodation and personal care.  The Applicant did not appear to grasp the concept that the two functions had to be able to operate independently of each other and does not appear to understand that there is a fundamental difference between the provision of domiciliary care in the service user’s own home and the provision of accommodation and care in the context of a care home.

19.	The Applicant’s own evidence within the application for registration showed several examples of her use of the word “ home” to describe the provision by CDC.  I have concluded that use of the term reflects her intention in setting up the provision, and her intention is to provide a whole package of accommodation and care.  Although she stated for the first time at the hearing that there would be no problem if a service user would express a wish for care to be provided by another care agency, there was no evidence presented to corroborate the statement and I consider that the true intention is reflected in the application for registration, the policy documents and the other information provided in support of the application.

20.	There was no evidence to support the Applicant’s allegation that she had been treated unfairly because she had previously appealed against an adverse decision against her, and this was confirmed by the CSSIW witnesses, whose evidence is accepted.  The Tribunal found, not only that there had not been any prejudice against the Applicant, but that the inspectors had made useful suggestions, signposting Mrs Webber to appropriate professional advice to assist her in her application, suggestions which she did not appear to have followed.

21.	Following the hearing, the Applicant sent an email to the Chair informing her of the name and address of another provider in the area who is alleged to provide similar facilities to those proposed by CDC and who has been registered as a domiciliary care agency by the same office of CSSIW.  The issue in this case is the purpose of Mrs Webber’s own application, and whilst the issue of other agencies’ registration may be relevant to the Regional Director of CSSIW in terms of ensuring consistency of approach, it is not of relevance to the decision to be made in this case.

22.	On the basis of the evidence presented in the appeal, particularly those mentioned above and contained within the business plan, the Tenancy Agreement, the “Aims and Objectives” and the “Service User Enquiry” forms, as well as the Applicant’s own use of the term “home” in referring to CDC, I have concluded that the proposed provision by CDC is a package of accommodation and care, and that it fits the description of a care home under section 3(1) of the Act rather than the description of a domiciliary care agency under Section 4(3).

ORDER

The preliminary finding of the Tribunal is that Cilgerran Domiciliary Care meets the description of a care home.

APPEAL STRUCK OUT

Meleri Tudur
21 May 2008