K H Beck v Birmingham City Council

K H BECK – Appellant and CITY OF BIRMINGHAM – Respondent Decision of the Tribunal sitting at "Highbury", Birmingham on 8 July 1987. Before: R H Christie ChairmanR BessellK Coleman Appeal against the decision of the Birmingham City Council to impose on the registration of the Field House, 110 Harborne Park Road, Harborne, Birmingham as a residential care home, a condition restricting the number of elderly persons to be accommodated to 17, in 11 single and 3 double bedrooms. The Appellant in person. For the Respondent: R McCarthy of Counsel, instructed by the City Solicitor. DECISION The Tribunal unanimously allows the appeal and varies the condition to permit 18 elderly persons to be accommodated, in 10 single and 4 double bedrooms. REASONS The Appellant and his wife are the owners of The Field House, a large, detached 3 storey Georgian house which is a grade 2 listed building. Seeking registration in respect of this house as a residential care home the Appellant has from the outset gone about his preparations in a business like manner and in full consultation with the Registration Authority's officers. He has installed a lift, made all necessary structural alterations, furnished and decorated the house to a high standard, appointed a satisfactory care manager and generally met and, in some respects, exceeded the authority's requirements, so the only matter in dispute is whether a total of 17 or 18 residents should be permitted. The house contains 14 bedrooms, 10 of which are of sufficient size for single bedrooms and 4 of which are each of approximately 250 square feet and have the attractive proportions and aspect that one finds in good Georgian houses. In its policy guidelines for residential care homes the Authority sets a minimum standard of 166 square feet for double bedrooms and a 107 square feet for single bedrooms, so in theory any one of these 4 big rooms could be subdivided into 2 single rooms, but the evidence makes it clear that in practice this would probably not be feasible as the Listed Buildings Authority would be most unlikely to permit either the making of extra windows or the building of a dividing wall to cut any of the existing windows in half, and even if either of these courses were permitted they would not be good practice because the dignity and attractiveness of the house would be impaired, contrary to the interests of residents (cf Ucheobi v City of Birmingham, decision 52, last paragraph). From the layout of the house, then, the natural way to use the rooms would be as 10 single and 4 double bedrooms, but there is one difficulty in the way of this natural use. On 11 December 1985 the Authority's Social Services Committee resolved "that with effect from 11 December 1985 new applications for private homes for the elderly to be registered, be considered according to a standard that double bedrooms should normally form no more than 25% of the total number of bedrooms in the home, and that the Planning Committee be informed accordingly." The applicant was informed by the Authority's officers of this resolution (which was subsequently incorporated in the Authority's policy guidelines adopted on 9 July 1986) and after consultation with them presented his proposals to the Authority's Planning Committee on the basis that with 10 single and 4 double rooms the proportion of single rooms would be approximately 72% – so close to the required 75% as to be substantially in compliance, and to be covered by the word "normally" in the resolution of 11 December 1985. On 23 January 1986 the Planning Committee granted planning permission as requested for the accommodation of 18 residents. So far so good, but unfortunately for the Appellant the Social Services (Registration of Residential Care Homes) Sub Committee, despite the applicants representations, decided on 15 April 1987 to limit the number of residents to 17, the applicant (now the Appellant) to select one of the 4 large bedrooms to be used as a single room. It is against this decision that the Appellant appeals. He presents his appeal almost with diffidence, and has been disarmingly honest in his evidence. He appreciates that the planning permission granted for 18 residents, in the knowledge that the 25% maximum of double rooms had already been adopted as council policy and would be slightly exceeded is not binding on the Social Services (Registration of Residential Care Homes) Sub Committee. Nevertheless he is not happy that his hopes were raised in this way, only to be dashed later, and nor are we. We welcome the assurance from Mr Reville, the Respondent's officer responsible for matters concerning registration, that every endeavour is now being made to ensure that applicants are not confused or misled by decisions of the Planting Committee and the Social Services (Registration of Residential Care Homes) Sub Committee, which sometimes cannot avoid speaking with two voices because they are concerned with different criteria. The Appellant also appreciates that the high standard of the facilities he is offering, such as private bathrooms for some residents, does not entitle him automatically to demand registration for a higher proportion of double rooms. Nor does he press his financial arguments too far, informing us that with 17 rather than 18 residents in prospect his bank is by no means happy but on balance is still prepared to back him on his revised estimates, and conceding that the revenue from the extra resident should not be seen as enabling him to provide improved service to residents but rather as giving a greater assurance that he will be able to maintain the high standard at which he is aiming from the outset. These concessions, so readily made, leave little of substance in his grounds of appeal except his expressed hope that common sense will prevail. We agree with him, and we consider that the decision of the Respondent's Sub Committee appears to have proceeded on a wrong principle. The proportion of a maximum of 25% double rooms, adopted as a standard on 11 December 1985, incorporated in paragraph 10.4 of the policy guidelines adopted on 9 July 1986 and reiterated in appendix 8 to those guidelines, must not be allowed to harden into a fixed rule, or even into a rule from which the Sub Committee will only depart in exceptional cases. The main concern of the Sub Committee, as of this Tribunal, is the welfare of residents. When considering what proportion of double rooms should be permitted in a particular residential care home the most obvious interest of residents is their need for privacy, as stressed in "Home Life" paragraphs 2.5.1 and 3.5. Almost equally obvious is the necessity to provide a homely, non-institutional atmosphere ("Home Life" paragraph 3.4). But this is not the end of the matter. Other factors which may affect the welfare of residents are: the preservation of the character of an attractive building; the danger of a proprietor being tempted or even obliged to reduce the benefits available to residents in order to survive financially; the maintenance of such good relations and mutual respect between the proprietor and the registration authority and its officers that they can work in partnership for the benefit of residents; and no doubt a number of other factors that may be relevant in particular cases. In short, a registration authority that, like the Birmingham City Council, has chosen to adopt a particular ratio of single to double rooms, must not slavishly apply that ratio in every case but must take into account the factors bearing on the welfare of residents which we have mentioned, and any others drawn to their attention in each case. There is no indication that the Respondent's Sub Committee took any of these factors into consideration in rejecting the Appellant's submissions and imposing a condition limiting the number of residents to 17 instead of 18 as requested by him. We say there is no indication because the papers placed before us and the notices and letters sent to the Appellant give no reasons for the imposition of the condition limiting the residents to 17 although they do give reasons for the intention to impose other conditions which are not in dispute in these proceedings. Mr Reville, who prepared the documents for this appeal, therefore found himself unable properly to comply with rule 5(2) of the Registered Home Tribunal Rules 1984 which requires the registration authority to send to the Tribunal and serve on the Appellant a statement of the reasons for the decision. For the guidance of the Respondent and other registration authorities we observe that it is necessary for the committee or subcommittee that makes any decision, whether under section 9, section 10, or section 12 of the Act, against which an appeal may be brought under section 15 to record the reasons for the decision at the time it is made, so that in the event of an appeal the authority can comply with rule 5(2). In our view the Registration Authority should have taken into account that if it granted the Appellant's application for 18 residents it would be enabling him to use this attractive building in a natural way. By limiting him to 17 residents it has given him an economic inducement to endeavour to persuade the Listed Buildings Authority to permit the subdivision of one of the large bedrooms, to the detriment of residents; it has placed him under a financial restraint that is out of proportion to the small difference in the ratio of single to double rooms achieved by altering the latter from 4 to 3; and it has given him cause to doubt whether the Registration Authority is one with which he will be able to work in partnership for the benefit of residents. We therefore vary the condition to permit 18 elderly persons to be accommodated in The Field House, in 10 single and 4 double bedrooms. It is necessary to add that the prospect of the Appellant extending the house by the addition of 2 more single rooms and a bathroom was raised during the hearing, and we considered the possibility of framing a condition which might enable the Appellant to keep his 4 double bedrooms provided he added these further rooms by a fixed date. However we agree with Mr McCarthy's submission that a condition could not properly be framed so as to dispose of the appeal in this way. R H Christie ChairmanR BessellK Coleman