Arvick Baghramian and Lynn Craig v Shropshire County Council

Decision No. 375 REGISTERED HOMES ACT 1984 CHILDREN ACT 1989 This decision may be freely reproduced and distributed. It should be drawn to the attention of registration and inspection staff and legal advisers. ARVICK BAGHRAMIAN AND LYNN CRAIG -v- SHROPSHIRE COUNTY COUNCIL Tribunal Sitting on 29 March 1999 at Lord Hill Hotel, Shrewsbury BeforeC R Cradick, ChairmanMr D StanleyMr R Brooks Representation:The first appellant did not appear having previously withdrawn her appeal. The second appellant, Lynn Craig, was represented by Laurence Messling of Counsel instructed by Anna Bunning of R Gwynne & Sons Solicitors, Telford The respondents were represented by Mrs Melanie MacDonald, counsel instructed by T Collard, Solicitor for the Shropshire County Council. DECISION It is unanimous decision of the Tribunal that the appeal be dismissed. Background This appeal relates to the cancellation of the registration as a children's home under Section 63 (1) (a) of the Children Act 1989 of the premises Smallbrook Lodge, Smallbrook Road, Whitchurch, Shropshire. These premises were first registered as a children's home on 18 February 1994, the registration being in the name of Creative Choices which was then a partnership between the two appellants and Mr Cliff Supple. The registration was for a home for six children aged from five to thirteen years. Not long afterwards, Mr Supple withdrew from the partnership and the respondents apparently amended the registration certificate accordingly. On 5 July 1995, the registration was further amended to allow for seven children aged from five to fifteen years. It is that certificate which was subsequently cancelled and the cancellation of which is the subject of this appeal. The certificate of 5 July 1995 was issued in the name of Creative Choices with no indication shown as to the identity of the individuals who were carrying on business under that name. It is, however, common ground that at that time, the partners in the business were the two appellants, Arvick Baghramian and Lynn Craig. In late 1995 and early 1996, differences arose between the two partners which culminated in a meeting on 7 February 1996 when the first appellant purported to terminate the partnership. Thereafter, she took over the operation of Smallbrook Lodge as sole proprietor with the consent of the second appellant. On 28 February 1996, the second appellant was admitted to hospital for surgery and on 10 March 1996 she left for the United States to recuperate therefrom. During the period from 25 February 1996 to 5 March 1996 whilst the second appellant was away from the home, three incidents occurred involving the first appellant and a child resident which resulted in a report being made as to the first appellant's conduct to the respondents in their capacity as registration authority. A formal inquiry was instituted and in the mean time, the first appellant voluntarily agreed to remain away from the home. The second appellant, Lynn Craig, was contacted in the United States and informed of the position and decided to return to take over the day-to-day management of Smallbrook Lodge pending the outcome of the formal inquiry. The relationship between the two appellants had clearly broken down by this stage as a consequence of which financial problems arose which placed the operation of the home in jeopardy. As a result, the respondents issued a notice of intention to cancel the registration which was served on both appellants individually. The placing authorities were informed of the position and steps were taken to remove the children from the home, the last child leaving on 20 June 1996 following which the home ceased to operate and the premises were eventually sold by the appellants in July 1997. For reasons which need not be detailed, the respondents' formal procedure to cancel the registration was deferred and a fresh notice of intention to cancel was served on 1 December 1997 and the decision confirmed by the respondents on 9 June 1998. Notices of appeal were then served by both appellants and there was a preliminary directions hearing on 11 November 1998 when it was confirmed that the two appeals should be heard together. However, on 18 December 1998, the first appellant's solicitors gave notice that their client had decided not to proceed with her appeal which was therefore withdrawn. On 30 November 1998, pursuant to the directions given, the respondents served their formal reasons for the cancellation but these were amended on 24 February 1999 by the service of an additional reason in which the respondents contended that as a matter of law and/or fact, the appellants having sold the property known as Smallbrook Lodge, there was no home which could currently be the subject of registration and that accordingly the appeal must fail. Documents The Tribunal had been provided with two substantial bundles of documents which included detailed statements of evidence prepared on behalf of both parties. Also included among the documents were copies of the decisions of an Industrial Tribunal sitting at Shrewsbury on 11 March 1997 to hear the applications of three former employees of Creative Choices for unpaid wages, wages in lieu of notice and various other expenses. In each case, the Industrial Tribunal concluded that the partnership between the appellants ceased on 7 February 1996 and that thereafter, Arvick Baghramian was the sole proprietor of the business and the second appellant, Lynn Craig, had acted in the capacity of her agent. Preliminary Issue Before any evidence was heard, it was agreed that the Tribunal should rule on a preliminary issue raised by the respondents in their amended reasons for cancellation. The respondents' counsel argued that the Tribunal was bound by the recent decisions of the court in the cases of Woodard v North Somerset District Council (1998) and Jenkins v Essex County Council given by the President of the Family Division, Sir Stephen Brown on 12 October 1998. Copies of the reports on those two cases were made available to the Tribunal. The respondents contended that, as in those cases, it was a matter of common sense that where there are no premises the registration cannot be revived. In this case, the home had been sold and there was no possibility that in the event of a successful appeal, the property could be recovered and the home reopened. In these circumstances, it was contended that the decisions in the cases of Woodard and Jenkins were clearly applicable and the appeal must fail because the prerequisite that there should be premises in existence to which the registration can be attached was not satisfied. It was emphasised that there was a distinction between the registration of a home under the Children Act where the registration attached to the premises as opposed to a registration to operate a nursing home or residential home under the Registered Homes Act where the registration relates to the proprietor. For the appellant, Mr Messling contended that the Tribunal was not bound by the decisions in Woodard and Jenkins because there was a different appellate procedure as those cases related to appeals under Section 77 of the Children Act against decisions of the local authority relating to applications for day care for children and therefore these decisions did not necessary apply to a children's home. It was further contended that the second appellant ought to be given the opportunity to clear her name by having her case considered by the Tribunal. Decision of the Tribunal It was the unanimous decision of the Tribunal that, as a matter of law, the appeal must fail there no longer being any premises in existence which could currently be the subject of a registration certificate. The Tribunal was unable to find any distinction in law between the principles applicable in this case and those decided in the cases of Woodard and Jenkins. The fact is that Smallbrook Lodge closed as a children's home in June 1996 and was sold some twelve months later. There is therefore no home which could currently be the subject of registration and the appeal must fail. There are two further points, however, upon which the Tribunal considers it necessary to comment. Firstly, it follows from our decision above that we have not considered the question of the fitness of the appellant, Lynn Craig, to be registered under the Act. The Tribunal understands that she will be disappointed that she has not been given the opportunity to clear her name but, as counsel for the respondents pointed out, there is a possible avenue still open to her under the Disqualification for Caring for Children Regulations 1991 and the rights of appeal that exist thereunder. The second point is one raised by the Tribunal namely, the lack of identification on the registration certificate of the individuals who were covered thereby. The name of Creative Choices only is shown with no indications to the identity of the individuals carrying on business under that name. It is the Tribunal's view that the registration certificate issued in July 1995 should have been in the names of the appellants, Arvick Baghramian and Lynn Craig, trading as Creative Choices. Since it appears to be generally accepted that the partnership between the appellants terminated on 7 February 1996 and bearing in mind that an Industrial Tribunal has found as a fact that Lynn Craig's involvement at Smallbrook Lodge thereafter was only as agent for Arvick Baghramian, it is possible to argue that the cancellation of the registration had no application to Lynn Craig, her name not being shown on the certificate and her involvement as a partner in the business having ceased, although she certainly continued to be involved as a manager and had a continuing financial interest. In view of our findings on the preliminary issue, it is unnecessary for the Tribunal to consider this argument further although it may need to be gone into in greater depth on another occasion. Suffice it to say that this Tribunal takes the view that it is clearly desirable, if not essential, that a registration certificate relating to a partnership should clearly show on the face of it the names of the individual partners who carry on the business and are to be held responsible therefor. However, for the reasons set out above, the appeal of Lynn Craig is dismissed, the appeal of Arvick Baghramian having previously been withdrawn. This is the unanimous decision of the Tribunal. MR C R CRADICKMR D STANLEYMR R BROOKS