Dr and Mrs Mukembo v Metropolitan Borough of Wirral

Decision No. 368 REGISTERED HOMES ACT 1994 This decision may be freely reproduced and distributed. It should be drawn to the attention of registration and inspection staff and legal advisors DR AND MRS MUKEMBO – APPELLANT V METROPOLITAN BOROUGH OF WIRRAL – RESPONDENTS Tribunal sitting on 18th January 1999 at the Town Hall, Wallasey, Wirral Before:Michael KellyJanet LowcockMichael Bishop Representation The Appellants: Did not appear and were not represented The Respondent: Mr Tony Edwards (Counsel) instructed by Mr Mark Reaney (solicitor) DECISION It is the unanimous decision of the Tribunal that the order made by the justice of the peace under Section 11 of the Registered Homes Act 1984 is confirmed and the decision of the registration authority to cancel the registration of Dr & Mrs Mukembo under Section 10 of the Registered Homes Act 1984 is confirmed Introduction This is an appeal under Section 15 of the Registered Homes Act 1984, against the decision of the Metropolitan Borough of Wirral on 15.7.98 to cancel the registration of Dr and Mrs Mukembo, the owners of Dunluce Residential Care Home, 2 Barton Road, Hoylake, Wirral. On the grounds that:- They are not fit persons to be concerned in carrying on a residential home. For reasons connected with the state of repair, staffing or equipment, the premises used or intended to be used for the purposes of the home are not fit to be so used. They have contravened and failed to comply with the Regulation 10(1)(c) of the Residential Care Homes Regulations 1984 by not providing adequate and suitable furniture, bedding and floor covering in rooms occupied by residents. They have contravened and failed to comply with the Regulation 10(1)(g) of the Residential Care Homes Regulations 1984 by not keeping all parts of the home occupied or used by residents in good structural repair, clean and reasonably decorated. They have carried on the home in such a way as not to provide services or facilities reasonably required. They failed to comply with Regulation 10(1(j) of the Residential Care Homes Regulations 1984 in that they have not taken adequate precautions against the risk of accidents. They have failed to comply with Regulation 10(1)(l) of the Residential Care Homes Regulations 1984 in that they have not provided suitable, varied and properly prepared wholesome nutritious food in adequate quantities for residents and Against an order, cancelling the registration of Dr and Mrs Mukembo, made by a justice of the peace sitting at Wirral District Magistrates Court on 29.10.98, under Section 11 of the Registered Homes Act 1984 because it appeared to the justice of the peace that there would be a serious risk to the life, health or well-being of the residents in the home unless the order was made. Preliminary Matters On 12.1.99 the Registered Homes Tribunal Secretariat received a request from Rooney & Co solicitors acting on behalf of Dr and Mrs Mukembo seeking an adjournment of the hearing on 18th January. The Appellants and their solicitor were aware that the request was opposed by the respondent council. The Chairman indicated on 13.1.99 that he would not be prepared to agree that the hearing should be adjourned and an application would have to be made to the Tribunal sitting on 18.1.99 at 10.30am at Wallasey Town Hall. On 18.1.99 at 10.30 am the Tribunal sat and the Respondents appeared but there was no appearance of the Appellants or their solicitor. A telephone call was made to Rooney & Co, the Solicitors purporting to represent the Appellants. Mr Rooney and two others arrived at 11am and immediately sought an adjournment of the hearing because they were having trouble with their clients' insurance company. Dr and Mrs Mukembo did not appear and Mr Rooney said that he had been unable to contact them for some time. Mr Rooney said that his clients could not afford to pay for the appeal; they owed a lot of money and their insurance company had indicated in October 1998 that the company wished to reserve its position on paying for representation until after the result of the Tribunal Hearing was known. A further letter was received by Rooney & Co on 18.2.98 saying that the insurance company would not indemnify their clients and were nt prepared to pay the costs of the appeal. He sought an adjournment of two months. The Respondents were very strongly opposed to any adjournment for the following reasons:- There was absolutely no indication that funding was ever likely to become available. An adjournment of the hearing would be pointless. The decisions appealed against were taken in July and October 1998. Cases of this nature involve the collation of a great deal of evidence and rely upon the recollection of witnesses who may move away and may find it increasingly difficult to attend a long delayed hearing. The Hearing to-day was listed in October 1998 and the Appellants have had sufficient time to deal with their insurance company. The Respondent contended that this laissez faire approach was completely unacceptable and the Hearing should proceed. We were of the opinion that the Hearing should not be adjourned. We agreed with the Respondent that there was no prospect of any change in the situation however long we adjourned the Hearing. The Appellants could and should have taken action to resolve their problems before to-day. Neither Dr or Mrs Mukembo had bothered to attend the Hearing and they could not be contacted by their solicitor. Rooney & Co indicated that they would no longer represent Dr and Mrs Mukembo and they withdrew. We directed that a final attempt should be made to contact Dr and Mrs Mukembo before we proceeded. We adjourned the Hearing until after lunch for these attempts to be made. A telephone call to the Liverpool Royal Infirmary revealed that Dr Mukembo was on leave for two weeks and could not be contacted, His home telephone number was unobtainable and seemed to have been cut off. No answer was received from his mobile telephone number. Mrs Mukembo could not be contacted. No indication that the Hearing would not proceed had ever been given to the Appellants or their solicitor by the Tribunal or the Respondents. The Respondents had indicated that they would strongly oppose any application for an adjournment. Dr and Mrs Mukembo did not attend the Hearing and they could not be contacted by their solicitor or the Tribunal. We decided to proceed with the Hearing We agreed with the view expressed by the Tribunal in Decision 121 that we could have deemed the appeals to be withdrawn in the absence of the Appellants. However we decided to hear the Respondent's case because of the serious allegations which had been made against Dr and Mrs Mukembo and because the Section 11 emergency application before the justice of the peace had been ex-parte. The case for the Respondent Dunluce was a residential care home for up to 14 elderly persons many of whom were totally unable to care for themselves and were suffering from organic mental disorders such as Alzheimer's disease. They were extremely dependant and vulnerable. Dr and Mrs Mukembo have been the registered owners since June 1990. Between 1991 and 1997 a number of inspections have highlighted matters of concern. The impression gained was that the home was poorly run but, until September and October 1997, things were not bad enough to consider cancellation of Registration. During these visits in 1997 inspectors found the home to be in a disgusting state and were appalled at the poor condition of the facilities provided for the residents, the poor maintenance of the building and the shabby decorations throughout. Residents had been put to bed in wet bedding, there was an overpowering smell of urine, Commodes were dirty and smeared with faeces, in one of the bathrooms tiling had not been completed and nails were protruding from the wall. Floor coverings were old, stained and torn and the floors were dirty, as was the kitchen area. Complaints had been made concerning the case of the residents, including a lack of medical and nursing care and staff had had inappropriate dealings with residents' finances. Mrs Mukembo had been working full time at another home when she should have been at Dunluce and she misled inspectors about this and other matters including staff rotas and report books showing contradictory reports about the welfare of residents. Dr Mukembo appeared to have little or nothing to do with the management of the home and when the problems were drawn to his attention and discussed with him he seemed unwilling or unable to resolve them. Staffing and financial difficulties continued to exacerbate the problems of the home until it became apparent that insufficient funds were being provided to feed and care for the remaining 6 patients and the staffing was totally inadequate. Visits by members of the inspection team in October 1998 revealed that there were serious problems with the staff rota. There was evidence that night staff were sleeping on duty. On 28.10.98 only ÿ1.50 was left to buy food for the 6 residents and there was insufficient bread and milk available. There was a serious risk to the residents' health and on 29.10.98 the Home was closed on the order of the justice of the peace following an emergency application under Section 11 of the Registered Homes Act 1984. These and other matters were set out for us by Susan Whitton, Senior Inspector, Inspection and Quality Assurance Unit, Wirral Borough Council; Inger Moynihan, Inspector of the same unit; Andree Jones, Inspector, of the same unit and Helen Carton, Inspector, of the same unit; all of whom gave evidence before us. We accepted the evidence of these witnesses. The Respondent Council has made serious allegations against Dr and Mrs Mukembo and has suggested that they are not fit persons to be concerned in carrying on a residential care home. Such allegations require a high standard of proof and we believe that the evidence of the Respondent's witnesses reached that standard. We are sure that the Respondent's decision to cancel the registration of Dr and Mrs Mukembo and the decision of the justice of the peace to cancel their registration under Section 11 of the Registered Homes Act were justified on the basis of the evidence we heard. We have no doubt that both appeals should be dismissed. This is the unanimous decision of the Tribunal.