Mr and Mrs Jikiemi v Hampshire County Council

Mr and Mrs JIKIEMI – Appellants and HAMPSHIRE COUNTY COUNCIL – Respondent Decision of the Tribunal sitting at Winchester on 5, 6, 7, 8 May and 8, 9, 10 July 1987 Before: G F Harwood, ChairmanDr B J GrayM P J Burrell For the Appellants: Mr E S Gibbons of Slater and Gibbons, Solicitors, Winchester For the Respondent: Mrs L Davies of Counsel, instructed by the Solicitor, of the Hampshire County Council. Appeal against the decision of the Respondent to cancel the registration of the Appellants in respect of the residential care home Sundials Rest Home, 47 Christchurch Road, Winchester, Hampshire. DECISION It is the unanimous decision of the Tribunal that the appeal be dismissed and that the cancellation of the registration of the Appellants be confirmed. Background On 1st March 1984 the Appellants were jointly registered as proprietors of Sundials, a residential care home for the accommodation of up to nine elderly residents. At that time both the Appellants resided and worked during the week in or near London and would return to Winchester to be at the Home at week-ends. As early as May 1984 certain complaints were received by the Council. The inspector (then) involved investigated these and subsequent complaints made during that year and duly wrote follow-up letters to the Appellants. On 9th December 1984 Mrs Jikiemi wrote in reply to one of these; she indicated that she found his remarks concerning registration "drastic and threatening'' and stated that it was "contrary to good practice" that the complaints (which evidently related to the provision of food, staff and heating) had not at any time been brought to the attention of the proprietors directly. Despite subsequent complaints about Sundials the Appellants both continued to work away from the Home during the week. On 12th April 1985 the Council decided not to proceed with a proposal to cancel registration; but on 19 July a meeting was held between the Appellants, their solicitor, the Assistant Director of Social Services, the Senior Inspector and one other inspector, to discuss a number of matters including the staffing and heating of the Home and the acute necessity that Mrs Jikiemi take up full-time residence there as the person in day-to-day charge. She did not in fact do so until 25th September 1985, by which time other inspections had already occurred followed by a letter of 4th September constituting notice under regulation 20(1) of the Residential Care Homes Regulations. The letter gave notice of alleged contravention of regulation 10(1)(a) and stipulated that at least two members of staff must be present at all times, with emphasis on a requirement that all staff employed were to be approved by the Director of Social Services. In November 1985 a further inspection visit gave rise to the necessity of a warning letter again concerning staffing and heating but there was undoubtedly improvement in the running of the Home after Mrs Jikiemi took charge on a full-time basis. Apart from an occasion in April 1986 when it was found that a "wholly unsuitable" resident had been admitted, the Home's regular inspector was reasonably well satisfied with the state of things up to and including September. There was an inspection on 22nd October which was not satisfactory and then in November the Council received information from a recent member of staff regarding a number of matters occurring within the Home. The information was considered so disquieting that investigations immediate commenced and led to formal notification by letter dated 28th November of the proposal to cancel registration. At a meeting of the Special Sub-Committee on 12th December, after the hearing of representations, registration was cancelled. The decision was notified by letter of the 15th and was followed by an inspection visit on the 17th. The appeal so this Tribunal was lodged on 19th December and on the same day the Council prepared a statement under section 11 of the Registered Homes Act to support an application to a justice of the peace for an order of immediate cancellation of registration. The application was heard on 29th December and no order was made. The intensity of the inspection visits thereafter increased, pending the hearing of this appeal, and continued at frequent intervals throughout January and February 1987 and to a lesser extent in March and April. Evidence For the Respondent some 13 witnesses swore affidavits of whom 8 were cross-examined, and one additional witness was called. The Appellants and 4 witnesses swore affidavits of whom the Appellants and two witnesses were cross-examined. The volume of documentary material produced was very considerable at the outset and increased in the course of the hearing up to and including the penultimate day. The Issues The Respondent contended that cancellation of registration was justified under section 10(a) of the Act and placed reliance on each of the grounds specified in section 9(a)(b) and (c). The Statement of Reasons recited the "matters for concern" as being (i) staffing; (ii) the treatment of residents; (iii) food; (iv) hygiene; (v) heating; (vi) medicine; (vii) the keeping; and the availability, of records; (viii) Mr and Mrs Jikiemi's reaction to the inspectors, and (ix) the character of Mr and Mrs Jikiemi and particulars were given under each of those headings. The case for the Appellants in the Statement of Appeal was merely that the evidence did not support any of the grounds specified and that the registration of the Appellants "can properly be continued". Visit to Sundials We visited in the evening on 8th May 1987. We found the atmosphere of the Home pleasant enough. We formed the opinion that the layout of some of the rooms on the ground and first floor and limitation of space must give rise to a number of operational difficulties such as the lifting of dependent residents at bath times, and the serving of meals. The kitchen and dining room we thought to be rather depressing areas and the main staircase was somewhat encumbered by the installation of the chair-lift. The large windows and high ceilings undoubtedly demand considerable expenditure on heating for the Council's requirements to be maintained. There were two Calor gas heaters in the communal part of the Home. The evidence confirmed that these were sometimes used as a source of supplementary heating even though such heaters are commonly regarded as potentially hazardous to infirm elderly people. Witnesses In reaching our decision we were careful to assess the strengths and weaknesses of the evidence given by the witnesses on both sides. We were satisfied as to the credibility of all the witnesses for the Respondent and of those who gave evidence for the Appellants. [We were contrastingly satisfied that the evidence for the Appellants.] We were contrastingly satisfied that the evidence of Mrs Jikiemi was in some respects quite untrue and often unreliable and inaccurate, whereas Mr Jikiemi we felt was anxious as far as possible not to mislead the Tribunal though the scope of his evidence was necessarily rather limited and did not to any great extent concern the major issues of fact that we had to decide. Both Appellants possess good nursing qualifications, and Mr Jikiemi is also a qualified social worker. Both were sensitive to the criticisms being made of their capabilities. What was described in the Statement of Reasons as Mrs Jikiemi's "volatile and unpredictable" temperament became quickly apparent to us when she was cross-examined and her reaction to questioning demonstrated her resentment of criticism and her feelings of hostility towards the inspectorate, and others, who ventured to comment unfavourably on her conduct or ability. Mr Jikiemi gave his evidence more calmly and with some care. Indeed it is scarcely surprising that in the Statement of Reasons the Respondent, having included the character of both Appellants as one of the reasons for the cancellation of registration, does not give any particulars in connection with Mr Jikiemi; likewise under the heading "Mr and Mrs Jikiemi's Reaction to the Inspectors" there is nothing specifically alleged against him at all. Staff There was an abnormally high turnover of staff – more than twenty in less than two years between the date of initial registration and the date of cancellation. The evidence convinced us that on all too frequent occasions the Appellants recruited and employed care staff having little or no experience or qualifications. There was certainly no proper assessment of the qualifications, experience, character or ability of any of the care staff who gave evidence for the Respondent. Such instructions, if any, as they were given were not adequate, and they received no training, for the tasks that they were expected to perform in the care of the elderly and in some cases also very dependent residents. We recognise that both Mr and Mrs Jikiemi worked exceptionally hard themselves. Their situation is, we think, reflected in Home Life (para.5.4.1) – "Where married couples are the proprietors … care should be taken to ensure that (they) have reasonable time off together each week and for holidays, and that they are not under pressure to forego this right for lack of staffing". Unfortunately the excessive hours that they spent on duty in the Home did undoubtedly reduce their efficiency. There were too many occasions when the number of staff on duty was clearly inadequate for the proper care of the residents, at times not even the two stipulated in the council's notes of guidance and the letter sent in September 1985 for the purposes of regulation 20(1). One of the matters of particular concern to us was the varied and extensive work-load of the untrained and inexperienced staff whose duties included not only the care of residents but the domestic duties as well. With only one or two trying to cope with all those duties it was unreasonable and affected their capacity to care for the residents. Much of the evidence centred on the months of October and November 1986 and concerned in detail the evidence of four former members of the staff. We reject Mrs Jikiemi's assertions that one was talking "utter nonsense" and that another was the author of a vicious and false report to the Council made out of spite. The combined evidence of those employed at Sundials at this time, and the inspectors, was overwhelming as regards staffing deficiencies and on this ground the decision of the Council to cancel registration was fully justified. Heating The guidelines stipulate that "a full central heating system which maintains adequate heating levels to all parts of the home must be provided". In a letter to the Appellants of 13th November 1985 the Assistant County Secretary wrote: "Please note, for the avoidance of doubt, that the County Council will expect a temperature of not less than 68 °F in living accommodation and bedrooms during the day, and in all night time accommodation at night". There was no evidence to suggest that the existing system was incapable of producing that result. Our visit to the Home showed us that there were plentiful radiators. Nevertheless there were occasions when the inspectors tested and found that the temperatures were far less than adequate. The evidence of other witnesses confirmed that they often felt cold and that the level of heating in winter was inadequate for the elderly residents. We are satisfied that the system was purposely programmed, and sometimes switched off manually, without due regard to the welfare of the residents, probably in an effort to economise on fuel. The lack of sufficient heating formed the subject of letters sent to the Appellants in the winters of 1984 and 1985 and was, in November 1986, one of the grounds that precipitated the cancellation of registration. We are satisfied that the proprietors often failed in their duty under regulation 10(1)(f) of the regulations to provide adequate heating in parts of the Home occupied and used by residents. Records The principal complaint of the Respondent under this heading was that Mrs Jikiemi never showed willingness to reveal the records required to be kept in accordance with Schedule 2 to the regulations. The result was that the inspectorate was neither able to assess their adequacy nor even in some cases to be sure of their existence. The duty of persons registered is clearly stated in Regulation 6(1); Mrs Jikiemi should have been aware of, and complied with, that duty. We have no doubt that in respect of the availability of records for inspection she was in breach of that duty; furthermore she was hostile and unco-operative with the inspectors on a number of occasions and thwarted their purpose. The record of staff compiled by her and required to be kept under paragraph 12 of Schedule 2 was woefully deficient for reasons that were clearly demonstrated in her cross-examination. Moreover, the evidence of one member of staff indicated quite serious deficiencies in the compilation and maintenance of other records. Brief mention will be made later of the record (for which Mr Jikiemi accepted responsibility) of 'pocket money' drawn out and supposedly either spent or saved on residents' behalf. Food Criticism of the food provided at Sundials was noted by the inspectorate in May and August 1984; the matter was investigated, found justified, and some improvement followed. In her letter of 9th December 1984 Mr Jikiemi sought to explain her difficulties in this regard. The subsequent appointment of a person in charge appears to have brought about a further improvement. The major criticisms to be made under this heading are we think general rather than specific and chiefly concern the later period when Mrs Jikiemi herself was in full-time charge. Witnesses spoke of their observations and experiences in and about November 1986 when at meal times very small quantities of food were served already plated. There was no choice of menu and much of the food was frozen or tinned. In her evidence Mrs Jikiemi told us that she had read Home Life over and over again. These criticisms might not have arisen had she taken to heart the principles of paragraph 3.8 and acted accordingly. Treatment of Residents We were satisfied that Mrs Jikiemi frequently failed to respect the dignity of her clients, particularly in the manner in which she spoke to them directly and spoke of them (whether in their presence or not) to her staff. Two of the ladies under her care were accorded no privacy at bath time. On one occasion an enfeebled old lady was left on the lavatory for a wholly excessive length of time – in fact many hours. Two members of staff in October 1986 were eye-witnesses of incidents that in our view demonstrate on the part of Mrs Jikiemi a profound insensitivity to the residents' needs for courteous and gentle treatment at her hands. On those occasions when intimate personal care was needed it was often accorded by her in a manner both tactless and indiscreet and sometimes crude. One witness, a former visitor to the home, was altogether banned from visiting for daring to express criticisms privately to a member of staff; Mr Jikiemi had no thought for the needs or feelings of the (then) 99-year-old resident whom the witness had visited daily for many years. We regard her action as uncaring and inexcusable – and it follows that we were, to say the least, unimpressed by the evidence of Mrs Jikiemi and her witness both of whom appeared to think that the action was justified. Reaction to the Inspectors During the period between May 1984 and December 1986 the relationship between Mrs Jikiemi and the various inspectors grew steadily worse. We consider that the deterioration was in no way due to the personality or any lack of tact or understanding on the part of either of the two female inspectors involved. By August 1985 one of them described Mrs Jikiemi as having been "openly hostile", and a similar description is given by the same inspector in relation to a visit in October 1986. The female inspector who took over temporarily from 7th November 1986 was shouted at and vulgarly abused on her first visit. No doubt Mrs Jikiemi preferred all inspection visits to occur by appointment; but there were good reasons for this not to be the case. Judged by her reactions to the inspector she appears to have overlooked, misunderstood or ignored the purposes of the wide powers of inspection conferred by the Act and the Regulations. She certainly behaved as if quite unaware that a registration authority is free to pursue a policy of regular inspection visits, without appointment, if circumstances seem to require it. Home Life envisages occasions when unannounced visits may be essential – for example, following an anonymous or specific complaint made to an authority concerning poor standards of care. Such visits were made to Sundials in 1984, 1985 and 1986, and more often than not the inspectors experienced lack of co-operation or hostility, or both. The evidence of the Senior Inspector, who himself visited the Home on a number of occasions, was that the vast majority of proprietors maintain the Hampshire standards without argument or difficulty and that most of the letters sent following inspections are of a supportive and congratulatory nature. He described the situation with regard to Sundials as "unique". we accept his summary that no fewer than 34 inspection visits were made between registration and 12th December 1986 (to be contrasted with the Hampshire requirement of two per year) and that almost all were in response to concern expressed by a member of staff, a member of the public or a member of the inspectorate. Be spoke of some 13 letters of concern sent by the inspectorate to the proprietors between June 1984 and July 1986. He could not recall any visit to the Home without hostility being shown. Another inspection was made on 17th December following the unpleasantness of which the order under section 11(1) of the Act was sought. Remembering that the decision to cancel registration was taken on 12th December, we do not place much weight on the details of that visit as we believe that both sides over reacted in the circumstances. Frequent visits were resumed in January 1987 and the evidence of events from then onwards is evidence that we felt entitled to entertain, despite the fact that the appeal had already been as it were 'set down' for hearing. Fitness All the grounds specified in the Statement of Reasons concern also the question of 'fitness'. The evidence of events prior to 12th December 1986 demonstrated to us quite clearly that Mrs Jikiemi is not a fit person to be concerned in the carrying on of a residential care home. The evidence of the inspectors' visits in January and February 1987 merely added conviction to certainty. We share the inspectors' astonishment that the cancellation and subsequent appeal did not bring about immediate improvements. On the contrary, Mrs Jikiemi's hostility towards the inspectors increased. To the present she remains convinced that they have conspired amongst themselves and with at least two of the former members of staff to ensure the closure of the Home. In her evidence she indicated that she regarded those more recent visits as "completely unnecessary" and deliberate victimisation. These sentiments are utterly without foundation. In fact, the visits revealed yet further staffing inadequacies in terms of selection, qualification, training and attendance; the heating was again found on occasions to be insufficient. The inspectors discovered that a man, previously employed as a handyman, was even permitted to act as a member of staff on two occasions in January – once at night, once by day – and that this man had a substantial record of convictions for crimes of dishonesty. Mrs Jikiemi gave the impression that she sees nothing wrong in having employed him as a care assistant – she Certainly resisted the inspectors' efforts to establish his suitability. In April she admitted to Sundials a man, under 65, who was drunk and (when) she had been warned at the time of his admission that he was given to bouts of verbal aggression, could be quite frightening, and that social workers had experienced considerable difficulties getting him settled elsewhere. His admission did cause at least one incident, when he argued aggressively with an inspector who had called on a routine visit. He was no longer in residence on 8th May, but he arrived for a short visit to the Home while we were there. Mrs Jikiemi still maintains that it was a sensible decision on her part to take him as a resident; she evidently saw no harm in his presence in the Home. We consider that it was a serious error of judgement and shows a remarkable lack of Perception and concern for her other clients. Mr Jikiemi He was concerned (chiefly as relief person-in-charge at week-ends) in the running of Sundials to a necessarily limited extent. He is still in full-time employment elsewhere. Nevertheless we think the evidence revealed a deficiency of management skills on his part of a degree to render him unfit in terms of section 9(a). When embarking on the new venture to become proprietor of a residential care home it was as much his mistake as that of his wife to fail to take advantage of the assistance offered by the local association of residential care homes. He must accept joint responsibility throughout for the failures in connection with the heating of Sundials and the assessment, appointment and training of suitable staff. He appears to have acquiesced in their inadequacy, done little to assist those who were employed at times when he was present, and tolerated the admission of two residents who were quite unsuitable. Apart from the general principle that persons connected with the running of a home "should not become involved in the handling and management of a resident's financial affairs (Home Life paragraph 2.6.7) to the extent that he assumed responsibility for keeping an account of residents' monies his achievement was well below an acceptable standard. It was sad to hear him in evidence describe the Senior Inspector as a racist – a view that appears to be based on a misconception of the meaning of two expressions that the Senior Inspector once used, namely, "blacklist" and "whiter than white". He also described the Senior Inspector as being like a "Gestapo detective" and in this respect Mr Jikiemi seems to us to display a lack of understanding of the role of an experienced officer who was trying, through regular inspections, to protect the quality of life and care of the residents at Sundials. We do not know whether Mr Jikiemi ever considered the running of the Home himself on a full-time basis – perhaps it was not financially feasible for him to do so – but the evidence in relation to him has satisfied us that, although he possesses the formal qualifications required, he lacks the additional attributes (prescribed in the Council's guidelines) of "suitable experience, knowledge and ability to enable (him) to undertake those tasks required to minister and manage successfully a residential care home". G F HARWOOD – ChairmanB J GRAYM P J BURRELL