Eleanor Azzopardi v London Borough of Havering

Mrs Eleanor Azzopardi Appellant And London Borough of Havering Respondent Decision of Tribunal sitting at the Council Chamber, Romford Town Hall, on Wednesday, Thursday and Friday, March 16th, 17th and 18th 1988. BeforeMargaret Rutherford – Chairman G Banner Esq J Regan Esq Appeal against the decision of the Respondent to cancel the registration of the Appellant in respect of the premises, "The Orchard", 28 Hall Lane, Upminster, Essex, pursuant to sections 9, 10 and 12 of the Act. Representation: For the Appellant -Mrs Hendy of Counsel, instructed by Mullis & Peake, Solicitors. For the Respondent -Geoffrey Stephenson Esq of Counsel, instructed by London Borough of Havering’s Controller of Administrative and Legal Services. Decision It is the unanimous decision of the Tribunal that the Appellants appeal be dismissed and that the cancellation of the registration of the Appellant be confirmed. Brief Background History On 16th July 1985 the Orchard was registered as a residential home to accommodate nine residents. The Appellant, who lived on the premises with her husband and children, personally managed the home. After registration and during 1986, in the course of visits and an annual inspection, local authority officers became concerned about a number of matters which they brought to the Appellant’s attention. In particular they were concerned about the lack of formal records in respect of staff employed. Meetings were arranged between the Appellant and the officers in order that help could be given to rectify the situation. When certain records were supplied by the Appellant to the officers they were found to be inaccurate. There was also concern that the Appellant might be exceeding the number of residents for whom she was registered. Rosters were found to be inaccurate. A general lack of good management practice was apparent. Concern continued to be felt. Letters were exchanged. Visits continued, one of which occurred when the Appellant was away on holiday. Inadequate staffing of the home and inaccurate records caused anxiety. For example, on some of the rosters one member of staff who was shown to be down for duty had, in fact, terminated her employment. In another case the ages of the two young care assistants were shown as being some two and a half years older than they really were. A notice to cancel the Appellants registration was served on 15th August 1986. The Registered Homes Sub Committee met on 11th/12th September and again on 15th September. The Appellant was represented by Counsel. It was resolved that the Committee was satisfied that the Appellant had failed to comply with the requirements of the Act. However, having regard to all the circumstances they decided that it would be inopportune at that time to cancel the Appellants registration. They deferred the matter for a period of three months to provide an opportunity for the Appellant to comply with the requirements of the Act and Regulations. In particular there were specified recommendations in the Proposal of Cancellation that would have to be met, such as the employment of a Manager of the home. It was also decided that a full report on the matter be submitted after three months. The Appellant was warned about the urgent procedure under Section

11. On 5th December 1986 the Sub-Committee considered the matter again. They noted that improvements had been made in the running of the home. A manager had been appointed and a personnel consultant employed. Comprehensive records were being maintained. It was felt that there had been a significant improvement. It was resolved that no further action be taken with regards to cancellation of the Appellants registration. In December 1986 the Appellant considered increasing the number of her residents to sixteen and the authority was asked to visit. In March 1987, whilst returning from a holiday in the West Indies, the Appellant was arrested at Heathrow and charged with being knowingly concerned in the fraudulent evasion of a prohibition on importation of a controlled drug. On 24th September 1987, after having been found guilty by a unanimous jury at Reading Crown Court, she was sentenced to eighteen months imprisonment, twelve months of which were suspended. Mrs Haslett who had been appointed as the Manager of the home on 27th January 1987, left on 12th October 1987. Notice of a proposal to cancel was once again served on the Appellant (1st October). The Committee met on 1st October and again on 19th October 1987. Local authority officers continued to visit the home weekly. The Committee recommended that the Appellants registration be cancelled on the grounds that she was not considered to be a fit person to be concerned in carrying on a residential home. They relied on the criminal conviction as demonstrating a lack of the high standard of judgement and integrity required of a registered proprietor, an inability to assume executive control and responsibility for the running of the home, due to her then imprisonment, and a failure to exercise a satisfactory level of management. Notice of cancellation was served on 29th October 1987. The Respondents Case The Appellants conviction is the pivotal point of the local authority’s case. It should be seen not in isolation, however, but in the context of the previous history of the home. The crime with which the Appellant was charged, tried and unanimously found guilty, is a very serious one. It was said that she had brought into the country, hidden inside fruit and concealed within hollowed out portions of a table, 6½ kilos of cannabis. She had pleaded not guilty but the jury was satisfied beyond reasonable doubt that her evidence was untrue and that she was guilty. She did not appeal against either her conviction or sentence. The quality of honesty and integrity in a registered home propriety is of crucial importance, for such a person is in a position of trust. The Appellant was in charge of the welfare of persons who, because of their mental or physical frailty, were unable properly to take care of themselves. Such persons were particularly vulnerable and because of this a very high standard of integrity was required of the person who had their care. The Appellant fell short of this standard by reason of the conviction and by reason of the earlier deficiencies in the home. Officers rely on what they perceive from the records. Proprietors are under a statutory duty to maintain accurate records to show how the home is being run. Local authority officers cannot always ensure that a home will continue to run properly. At best they can make spot checks to see that all is in order. However, when such checks are carried out it is essential that the officers have confidence in the records on which they rely to show the true position. For example, rosters will show how many people are on duty at a particular time, records will show whether staff is of the quality needed to provide care. It is a practical approach, not merely a moralistic one. At the time of the first threatened cancellation, the inaccuracy of the Appellants records was never described as dishonest. In the light of the subsequent conviction, however, a more jaundiced view might be taken of them. The Respondent called Mr F Smith, Head of Residential and Daycare in the Social Services Department, Mrs Kathleen Jones, Homes Officer, and Mrs Marion Haslett, a care-assistant at the Orchard for a short period (although no longer employed there). The Appellants Case Before her conviction the Appellant was of impeccable and unblemished character. She had never abused the trust placed in her by the local authority when she was a registered child minder, when she was asked to become foster mother to a very difficult adolescent, or when she took over the care of elderly people. There was never any allegation of abuse or dishonesty made against her. Apart from the conviction, all that can be said was that for a couple of days during the Appellant’s holiday there was insufficient staff and that her record keeping was poor. As to the first, the Appellant had made contingency plans, but regrettably these broke down. As to the second she tried to remedy the situation by employing both a manager and a consultant. Even when she was in prison she had made careful plans to fill the managers vacancy once it had arisen. There was no lack of executive control. The Sub-Committee had decided not to cancel her registration in September 1986. They were very responsible people who were presumably satisfied that this was not necessary. Not one word of criticism had ever been made about the care of the residents. As to the Appellants conviction, it did not indicate any likelihood that she would take advantage of the residents in her care. To allow her to continue to run the home would not adversely affect them. The conviction does not diminish the very high standards of integrity required in a registered homes proprietor. The Appellant gave evidence and also called Mr Paul Mansfield, an Independent Social Worker, Mrs Elizabeth Newmeir, deputy manager of the Orchard, and Mrs Sheila Fayers, a personnel consultant. Reasons for the decision After most careful through the Tribunal unanimously found that the Appellant is not a fit person to be in charge of a residential care home. There are two reasons for our decision, the first being the most important:

1. the fact of the conviction itself and

2. some of the irregularities described at length during the hearing in our view go beyond carelessness or inadvertence. The Conviction Itself In trying to decide whether a conviction for a serious offence should raise a presumption that a proprietor was unfit per se, the Tribunal asked itself several questions. Was it significant that the Appellant was charged with a drug smuggling offence rather than, say, causing death by reckless driving? Was it significant that it was punished by a custodial, rather than a non-custodial sentence? Is it necessary to establish a connection between the crime and its possible effect on the welfare of the residents? Was the evidence adduced by the Appellant sufficient to rebut the presumption? It is significant that the Appellant was found guilty of a drug smuggling offence rather than of a more trivial, or less culpable crime. It is a very serious crime involving both prohibited drugs and the act of smuggling. It is an offence of dishonesty. It is significant that it carries a custodial sentence, and it is particularly significant that the Appellant, with no previous convictions, was nonetheless given a custodial sentence, only part of which was suspended. It is not necessary to establish a connection between the crime and the possible adverse effect it might have on the care and well-being of the residents. There may be such a connection. For example if an Appellant were found guilty of a social security fraud or of a crime of violence, then it could be argued that these convictions might reflect on the care of residents who might be at risk of being defrauded or subjected to violence. However, such a connection is not, in the Tribunal’s view, necessary. It is the fact of the Appellant’s conviction that places her honesty and integrity in serious doubt. We are not saying that vulnerable residents have been adversely effected by that conviction. We are saying that very high standards of integrity and honesty are expected of a proprietor and that by her conviction, "on clear evidence", the Appellant has fallen short of them. We were not persuaded by the Appellant’s evidence that the presumption, that the conviction made her unfit, was rebutted. Irregularities in the Records We accept that in a labour-intensive activity such as running a residential care home, it is only natural to expect imperfect records from time to time. However meticulously rostas are drawn up, there will have to be amendments made to cover unexpected absences and emergencies that may arise. However, there are certain aspects of some of the records in this case which we feel uneasy about. Collectively they amount to some serious inaccuracies which establish to our satisfaction that there has been a disregard for the truth. In particular, we are satisfied that the Appellant knew the ages of the twins as stated was inaccurate, and new that their experience was considerably less than that indicated on the particular record. We are also satisfied on the balance of probabilities that Mrs Haslett had not promised to stand in for duty during the Appellant’s holiday period and that the Appellant knew this. Conclusion There is no statutory definition of a "fit" or "unfit" person. It is probably much easier to recognise the quality of fitness than to attempt to define it. However, the words "trust", "integrity", "uprightness", "honourable", and "truthful", spring to mind. A fit person is one who can be trusted, in whom one has confidence, who acts according to high principles. It follows that a person will be unfit if he or she is untrustworthy or dishonest. The Act requires that a proprietor of a care home be such a fit person, since the elderly people in their care are often frail and vulnerable and the person in control of them is in a powerful position to exploit their frailty. It is imperative that residents’ well-being must be assured and that they must be protected from harm. It is a high standard that the law requires, and we are satisfied that for the reasons given, the Appellant fell below this standard. MARGARET RUTHERFORD – CHAIRMAN G BANNER ESQ J REGAN ESQ