Rowena Dunham-Vance v Lincolnshire County Council

Decision 395 This decision may be freely reproduced and distributed. It should be drawn to the attention of the registration and inspection staff and legal advisors ROWENA DUNHAM-VANCE V LINCOLNSHIRE COUNTY COUNCIL Tribunal sitting at the County Offices, Newland, Lincoln, on 16 and 17 November 1999, to hear an appeal against the decision of the local authority (the Respondents) to cancel the registration of Rowena Dunham-Vance (the Appellant) in respect of 'Langton Lodge Residential Home' 101,Monks Road, Lincoln (the home) for use as a residential care home under the Registered Homes Act 1984. Before:   D. Kennet Brown Esq. (Chairman)     R. Ward Esq.     F. Watts Esq       Representation   Appellant: Mr Lea (Counsel)     Respondents: Mr Burns (Local Authority Solicitor) DECISION The Tribunal unanimously decided that the Appellant succeeds on all three grounds of her appeal, and that consequently the decision of the Social Services Appeal Sub-Committee of the Respondents to uphold the Notice of Intention to Cancel taken on 3rd June 1999, is set aside. WITNESSES For the Respondents:   Avril Golding     Alan Geeves     Duncan Howells     Tony Fraher       Statement read         Sean Hinch       For the Appellant:   Rowena Dunham-Vance       Statements read         Paul Ostick     Susan Dover     Mary Houlton     Rosemary Grice BACKGROUND TO THE APPEAL The Appellant was first registered to carry on a residential care home for 9 residents with mental health needs on 11-1-1993. On 27-10-1994 at her request this was increased to 12 residents with these needs, one of who is over

65. The home was regularly inspected approximately every 6 months, and various recommendations made. The Appellant largely agreed with these various points and took steps, though not always immediately, to comply with them. The various inspections since 1993 have noted how the residents, who have a wide range of ages and needs including substance abuse, have expressed contentment with the care and housing provided by the Appellant. The Appellant, as well as managing this care home, also owns Faraday House, 159 Monks Road, a bedsitting house in the same road. With the knowledge of the Social Services and the Independent Inspectorate she has adopted a policy of encouraging some of her vulnerable residents to attempt a greater degree of independent living by moving from the home to the bedsitting house, whilst giving them support in the form of meals, laundry, visits and some overnight staying at the home. This, and her co-operation with the Social Services and others in meeting emergency needs on occasions, has led to times when the occupancy level has exceeded the permitted 12, though it never went above

14. This policy has also led to confusion as to the exact residential status of one particular resident, CD, who became the subject of an investigation by the Benefits Agency in January 1999. CD suffers from schizophrenia and has difficulties with reading and writing, and had failed to explain to the Benefits Agency his dual residency, sleeping at either the home to or the privately rented accommodation, whilst receiving food, laundry and other services at the home. The Respondents became increasingly concerned at the apparent breaches occurring at the home but did not issue a notice under Regulation 20 of The Residential Care Homes Regulations 1984. Instead, on 11-2-1999 the Respondents served Notice of Intention to cancel the registration pursuant to section 10 of the Registered Homes Act on the grounds that: – (a) You, or any other person concerned or intended to be concerned in carrying on the home, are not a fit person to be concerned in carrying on a residential care home; (b) For reasons connected with their situation, construction, state of repair, accommodation, staffing or equipment, the premises used or intended to be used for the purposes of the home, or any other premises used or intended to be used in connection with it, are not fit to be used; or (c) The way in which it is intended to carry on the home is such as not to provide services or facilities reasonably required. On 3-6-1999 the Social Services Appeals sub-committee of the Respondent, having heard representations on behalf of the Appellant, upheld the decision to cancel the registration. The Appellant has given notice of her wish to appeal to the Registered Homes Tribunal against the decision taken on 3-6-1999 to uphold the cancellation of her registration and contends that: – a. She is a fit and proper person to be concerned in the carrying on of a residential care home; b. The premises used are fit to be used; c. The home does provide services and facilities reasonably required. Accordingly the Respondent has erred in reaching the conclusions in support of its decision, and is mistaken in the making of its decision. BURDEN AND STANDARD OF PROOF Under the provisions of the Registered Homes Act the Appellant, having been granted registration is entitled to remain so registered, and the Respondents cannot cancel registration unless they establish the grounds set out in the Act. In this case the burden is therefore on the Respondents to satisfy the tribunal that on the balance of probabilities the Appellant is not now a fit person to be concerned in the carrying on of a residential care home, and that the premises are not now fit to be used for such purposes, and that the way in which it is now intended to carry on the home is not such as to provide services or facilities reasonably required. THE HEARING Despite being required by letter dated 5-10-1999 to serve on the Appellant a copy of the Statement of the reasons for its decision to cancel registration 30 days before today's hearing the Respondents had failed to do this. However the Appellant took no point on this. It was agreed by all parties and the Tribunal to treat the Notice of Intention to Cancel Registration issued in February 1999 as the Statement. All live witnesses were sworn, adopted their filed statements as their evidence, gave further evidence in chief and were cross-examined. AVRIL GOLDING Mrs Golding, Fraud Investigator of the Benefit Agency, had taken a statement from CD and another occupier of the bedsitting house on 27-1-1999. On the same day she had taken a statement from Mary Houlton a carer at the home. These statements showed that although CD "lived" at the bedsitting house he frequently had meals and stayed overnight in an unregistered spare room at the home, otherwise occupied by night staff and known as the "freezer room". His medication and benefit book were kept at the home. She had not interviewed the Appellant until 29-3-1999. Following the report she made, CD was assessed as having been overpaid £9458. No decision had yet been taken as whether or how this sum was to be recovered. However it has been decided that there will be no criminal proceedings or cautions.  ALAN GEEVES Mr Geeves had carried out various inspections from February 1996 until Mr Howells took over. He has carried out monthly inspections since June 1999. His conclusion was that the home was frequently in need of work, particularly after a fire that had occurred in May 1996. The Appellant could not be blamed for the fire. He confirmed that in the last 2 years the inspection process had become much tougher and more demanding. Despite this the Appellant had made significant efforts to improve the environment in the home. He remained concerned at the apparent lack of training provided to staff, and the inappropriate use of the Appellant's 16-year-old son as one of the night staff. He was not of the opinion that the return of former residents to visit the home as part of their community support was an interference with the privacy of current residents. He regarded the excessive hot water temperature as putting vulnerable residents at the risk of scalding. It had taken a long time to rectify this. He confirmed that the Respondents had issued guidelines for care homes in specific terms based on "A Better Home Life" whereas the legally binding regulations were drawn in much broader terms. He was not aware how "A Better Home Life" differed in status to "Home Life" which has Section 7, Local Authority Social Services Act 1970 status. He had not been involved in a cancellation before. DUNCAN HOWELLS Mr Howells first became involved with the home in September 1997 and made his first visit in November that year. He felt he had to deal with the over-occupancy as a first priority since in his view this threatened the privacy of the residents. It was not right to allow people just to come and go. However he recognised that the client group in the home had varying mental health needs, some very severe, and required a lot of support. They could not cope with living unsupported in the community. He was concerned that the home did not comply with required staffing levels. It was essential that 2 members of staff were always on duty, but he had visited on one occasion to find only one member of staff present for 9 minutes with 4 residents, when the other staff member had gone out shopping. He was not satisfied with the training given to staff, particularly in mental health matters. He was also concerned at the use of the Appellant's 16 year-old son on night duty. In his view the Appellant was putting the residents at risk by taking almost two years to put right the excessive hot water temperature, although he accepted no resident had actually been harmed. He was very concerned at the way that CD had been moved into the bedsitting house owned by the Appellant. He needed a lot of support and could not manage on his own. He totally relied on the Appellant and could not handle or understand Benefit Agency forms. Due to the way his move from the home was handled CD faced a substantial repayment to the Benefit Agency. It was the Benefit Agency investigation that prompted the Respondents to act as they had done in January/February 1999. However he did not make the decision to cancel, nor was he asked for a recommendation. He fully supported the decision that was taken after consultation with the legal department. He agreed that the inspectors' reports show that the residents are happy, but one had to bear in mind that they were vulnerable people, unaware of their rights. They do not want their home to close and were very concerned at the prospect of closure and a move elsewhere. He claimed that the standards of the home had deteriorated over the last 18 months, but later revised this to allege that the environmental and physical standards of the home had worsened to an alarming degree between February and July 1998. He considered he had been misled by the Appellant and could no longer trust her. She had repeatedly promised to keep to her occupancy limits but failed to do so. She was dishonest. She accepted payment for CD's residence at the home when he was no longer there. Although he recognised the flexible and supportive policy adopted by the Appellant this could never justify her in breaking the regulations. She had opened herself to prosecution. He accepted that the July 1997 Inspector's report said that there was no evidence to indicate that other residents had been inconvenienced by excess occupancy. He expected the Appellant to take her support service out into the community rather than allow those in need to enter the home. Whatever the residents might have said to the inspectors they were harmed by over-occupancy since their space was reduced. He was referred to Local Authority Circular (86) 6 and agreed that flexibility was important in the process of rehabilitation. He maintained that the evidence showed that CD was additionally resident at the home permanently for 8 months, not merely a casual visitor. When it was drawn to his attention, he accepted that this 8-month period was in fact the same as the period identified within the Respondents evidence, which they accepted as not justifying any action. They had continued to work with the Appellant in full knowledge of the situation. He accepted that the 8 month over-occupancy was not of itself a ground for the issue of the Notice of Intention to Cancel. He still however maintained that the occasional overnight stays of CD, and another person DM, still put the Appellant in breach of her undertaking not to allow this. TONY FRAHER Mr Fraher was the Head of Inspection of Quality in the Social Services Directorate. He oversaw inspectors covering more than 400 homes. Neither he nor his deputy had visited the home nor discussed their concerns with the Appellant. He relied on his inspectors' reports and in coming to his decision to issue the Notice of Intention had read only the most recent reports, particularly those of Mr Howells. He had concluded that the Appellant was not a fit person. She lacked integrity, could not be trusted and did not appear to understand the vulnerable group with whom she was working. The situation was irretrievable. If he felt that trust could be re-established he would have considered issuing warning notices under Regulation 20 instead of the draconian step of issuing the Notice of Intention to cancel. He accepted that closure would upset the residents, but nevertheless this action had to be taken to protect them. He was suspicious in February 1999 when the Benefit Agency investigation into CD extended to the Appellant, and as a result believed her to be unfit. She had housed a needy resident elsewhere in order to comply with occupancy levels and had failed to support him in applying to the Benefit Agency. As a result CD was left with a debt in excess of £9000, whilst she wrongly received the money for his care. He believed these allegations to be true and that it was necessary to take pre-emptive action to protect the residents. She has flagrantly disregarded local authority standards. She finds it hard to turn needy people away and this puts her in breach of the regulations. Although he commended attempts at Care in the Community, he expected registered home owners to resist pleas for accommodation from other members of the Social Services Department if a breach of the regulations might be caused. He accepted that the inspection reports were generally favourable until Mr Howells took over, and that they got better again when another inspector visited. He accepted that lack of staff training was not enough on its own to justify the Notice of Intention to Cancel. He had kept no notes or records of his discussion with his deputy that led to the issue of the Notice. SEAN HINCH (Statement read) Mr Hinch was the Social Worker for DM a former resident at the home who moved to other accommodation with a care plan including community support from the home such as meals and laundry. He discovered that DM had been returning to stay at the home for 2 nights a week, which was not a part of the care plan. No funding had been sought for this. DM wanted to live at the home permanently, and after he ran away from another residential home he was formally admitted to the home. This placement shortly broke down. DM had also had problems with the Benefits Agency who told Mr Hinch that it was DM's responsibility to notify them of any change of accommodation and not the responsibility of the Appellant. ROWENA DUNHAM -VANCE The Appellant explained that there were today 12 residents in the home, the oldest being 82 and the others under

65. 4 had been there since 1992. Her policy was to encourage the independence of her residents, and one had qualified enough to work in the kitchen and help with shopping. Although there had in 1993 been one night when an emergency admission at the request of a local doctor had breached the occupancy levels, until 1997 there had been no other breach. She accepted that she had at the request of a Community psychiatric nurse admitted a homeless schizophrenic couple who were still resident today. She had at the time permitted space for only one person. She sought the advice of the inspector Mr Geeves who told her to apply to be registered for

13. It took some time for her request to be considered but the Principal Inspector in consultation with Mr Howells eventually turned it down on the grounds that the available room was too small for two people. Mr Howells instructed her to arrange a planned discharge of a resident to keep within her occupancy levels. So she prepared CD for the move to suitable accommodation in the bedsitting house, still providing him with meals, laundry and day care at the home. CD was always moving between this and the home. She felt quite entitled to continue to receive the same money for him since he was still receiving virtually full care facilities. She had told the Inspectorate that he had moved out, and accepted that she had told the Benefit Agency Fraud Investigator on 27 March 1999 that CD was using a room at both premises. She did not agree that occupancy levels had been exceeded on numerous occasions, but only on some nights. She accepted that the current brochure for the home, printed some years ago, contained a misleading reference to having a team of psychiatric nurses, whereas there was now only one such nurse. She accepted that she had used the term "nurses" in her Benefit Agency interview when she should have said, "care staff". She regarded her son as suitable as a sleep-in worker since he was never left on his own, nor was he in a supervisory capacity. She had a training programme for staff but not everything was recorded on their cards. Mental health training was due later this month. She considered that Mr Howells had greatly exaggerated the defects present at the home, but agreed that her over-occupancy had put her in breach of the regulations. PAUL OSTICK, SUSAN DOVER, MARY HOULTON &ROSEMARY GRICE (Statements read) These statements by employees at the home testified to the good care given by the Appellant to residents at the home, and to the unfairness of Mr Howells' report. CONCLUSIONS After considering the evidence both written and oral the Tribunal was left in no doubt that although the Appellant had made some serious errors of judgement in allowing her occupancy level to be exceeded on occasions, which she admitted, there were no proper grounds on which she could be regarded as unfit, nor that the premises were not fit to be used as a home, nor that there were grounds for believing that the provision of services or facilities in the future would be other than of a standard reasonably required. The Appellant came across as essentially truthful and trustworthy, trying to do her best both for her permanent residents and for others in the community. In contrast we found the evidence of the Respondents, particularly that of Mr Howells to be full of exaggerations, sweeping statements and equivocation, and displaying a surprising determination to have the home closed, when the overwhelming evidence was of a well-run home doing its best to care for a vulnerable group of residents with a variety of mental health problems. The Benefit Agency investigation into CD appears to have triggered a panic reaction by the Respondents, who have brought before us a series of exaggerated allegations against the Appellant, largely unsubstantiated. Those, which have been proved in no way show that the Appellant is unfit, though they illustrate the difficulties and dangers inherent in the community care policies adopted by the Appellant. The Respondents claim to have the best interests of these vulnerable residents at heart, but do not appear to give proper weight to the disruptive effect on them of closing a home where they have lived a long time. Sections 9 & 10 of the Registered Homes Act 1984 give the registration authority discretion to refuse or cancel registration, not an obligation. In the case of an existing home that discretion to cancel should only be exercised after compelling evidence is obtained that the residents are suffering or likely to suffer some significant harm or risk of harm from the continued existence of the home, and that such harm is greater than what they would be likely to face if the home were closed. Such compelling evidence is absent in this case. Where the registration authority has concerns about an existing home it should work with the proprietor in maintaining and developing the appropriate regime rather than issuing a Notice of Intention to cancel. In this case the Tribunal is disturbed that so grave a decision as issuing the Notice of Intention, with its implications for residents' accommodation, staff employment and loss of business, was apparently effectively based on one person's views, that of an Inspector who had only been involved for some 20 months out of this home's 6 year existence, of whose reports only one in July 1998 reveals potentially significant criticisms. Neither the Head of Unit nor the Principal Inspector had visited the home or had any relevant discussion with the registered proprietor before the decision was made. As there have been two or three other inspectors significantly involved we are surprised that we did not hear evidence that their views were sought, and their reports examined carefully as part of the decision making process. The Head of the Unit told us he considered only one or two reports but he had no conversations with the inspectors. The Principal Inspector was not called to give evidence as to her part in the decision making process. This is all the more perplexing, given that virtually all the other inspectors' reports are substantially positive. What we have heard in this case raises concerns about the effectiveness of the decision making process of the Respondents in this area. Mr Kennett Brown Mr Ward Mr Watts