Mr K and Mrs N Kowlessur v Suffolk County Council and Suffolk Health Authority

Decision 393 This decision may be freely reproduced and distributed. It should be drawn to the attention of the registration and inspection staff and legal advisors   MR K and MRS N KOWLESSUR Appellants   And     SUFFOLK COUNTY COUNCIL     And     SUFFOLK HEALTH AUTHORITY Respondents Tribunal sitting at Belstead House Conference Centre, Belstead, Ipswich on 13, 14, 15, 16 and 17 September 1999 and at Suffolk Health Authority, St Clements Hospital, Foxhall Road, Ipswich on 20, 21 and 22 October 1999. Before: Mr Ronald Coia (Chairman)   Mrs Susan Adams     Mr James Fisher   REPRESENTATION: Mr Roger McCarthy QC instructed by Mr Robert T Campbell, Donne, Mileham & Haddock, Solicitors, for the Appellants Mr Bruce Silvester of Counsel instructed by Mr Christopher Jackson, assistant County Solicitor, for the Respondents WITNESSES The following gave oral evidence:   For the Respondents:       Miss J Stevens     Mr N Cole         For the Appellants:       Mrs N Kowlessur     Ms S Jennings     Dr S Norton     Mrs A Paterson     Mr B Ramsamy     Mr J J Roberts     Mrs J Wright     Mrs P G Minifie         Written statements were received from:     Dr D W Foreman     Mr M G Spencer     Ms L Newberry DECISION The unanimous decision of the tribunal is that:

1. The decision of Suffolk Health Authority to cancel registration under Part II of the Act in respect of the home known as Cransford Hall is confirmed.

2. The decision of Suffolk County Council to cancel registration under Part I of the Act in respect of the home known as Cransford Hall shall not have effect. INTRODUCTION The appellants took over Cransford Hall in February 1997. It was at that time a dual registered nursing and residential care home. They were registered as the owners, and Mr A Richardson was the registered manager. Cransford Hall is rurally located near Saxmundum in the village of Cransford, Suffolk. It became a dual registered home in 1995. It is a building, comprising a basement, ground, first and second floors, with access between floors provided by a shaft lift and two staircases. The appellants applied for registration as the owners of Cransford Hall (the home) on 18 November 1996. At that time Cransford Hall was owned by a company called Regency Care Homes Ltd. So far as the registration authorities were concerned, their ownership had been problematic. The Joint Inspection Unit of Suffolk County Council Social Services (the JIU) had concerns regarding environmental facilities and staffing levels. The concerns about the staffing levels maintained at the home spanned the ownership of Regency Care Homes Ltd and the appellants. Following a long period of discussions, both verbal and written, and announced and unannounced inspections of the home by the JIO, Notices of Proposals to cancel their registration under both Parts I and II were issued on 10 December 1998 and 14 December 1998 respectively. The grounds for cancellation were that they were not fit persons to be concerned with the carrying on of a such a home, that for reasons connected with staffing the premises were not fit to be used as such a home, and (Part I only) that the way in which it was intended to carry on the home was not such as to provide services or facilities reasonably required. These proposals were subsequently accepted and adopted by both registration authorities by 9 April 1999. On 12 April 1999, the appellants gave up registration in respect of Part II, so that the home is only registered under Part I at the date of the commencement of this appeal hearing. PRELIMINARY MATTERS A large volume of documents was delivered late in this appeal, particularly on behalf of the appellants. Mr McCarthy's assurances that this was not the fault of the appellants is accepted. It did however mean that no evidence could be heard on the first of five days scheduled for hearing the appeal. Two preliminary matters were raised before the tribunal by Mr McCarthy:

1. It was proposed that the management of the Home would be transferred to Goldcare Facilities Management Ltd (GFM) under a management agreement which was in the process of being agreed, which would enable the future of the home to be secured by removing the appellants from the day to day management of it. The process had been going on since 15 July 1999 when GFM had lodged a registration application. Mr McCarthy suggested that the matter could be completed very quickly, and the delays which had occurred were not the fault of the appellants. He conceded that there was no compromise between the parties on this proposal, and he requested an eight week adjournment to enable the necessary police checks to be made (which had not yet been initiated, despite the application being lodged on 15 July 1999). Mr Silvester opposed the application. He described the application as having been made in a pedestrian way and as being woefully inadequate. A draft agreement had been requested on 26 July 1999, and had not been supplied (a faxed copy of the draft – not yet approved was obtained during the hearing). After considering the application, the tribunal refused to adjourn, and asked to hear the evidence.

2. Mr McCarthy then pointed out that Part II registration was surrendered on 12 April 1999 by agreement, with an increase of Part I residents being allowed in return on 15 April 1999. He submitted that as a result of these actions there was no longer anything before the tribunal in respect of the former Part II registration, and that the tribunal could not entertain the Part II registration. Although there was no statutory basis, the proper course was to hear the Part I registration only, and the decision of the registration authorities in respect of Part II would remain suspended. In response, Mr Silvester opposed the application and said that once an appeal is brought, the decision to cancel registration shall not take effect until determined or abandoned. The decision of the registration authorities cannot be suspended. The tribunal ruled that they were asked not to determine the appeal with regard to Part II registration because that registration was surrendered to the registration authorities on 12 April 1999. Section 15 Registered Homes Act 1984 provides that in respect of a decision of a registration authority, the tribunal may confirm the decision or direct that it shall have not have the effect. There is no statutory authority to suspend a decision, and we do not have jurisdiction to make an order incorporating the terms of any agreement between the Respondents and the Appellants. In the face of the registration authorities wishing to continue to call evidence in respect both Parts I and II, we proposed to hear the evidence and arguments in respect of both. FINDINGS OF FACT The appellants acquired Cransford Hall in February 1997 and were issued with a certificate of registration by Suffolk Social Services on 26 February 1997. The certificate was for dual registration as a nursing home and as a residential home. Cransford Hall was already a dual registered home when it was aquired, although all the evidence points to it being in a run down state at that time. The home is a very substantial historic building, which clearly was never designed to be used as a dual registered home. Because of the condition it was in the appellants entered into a pre-registration agreement with the JIU to – upgrade the home facilities – undertake staff training within the first 6 months – attend to the issue of odour management within one month – provide adequate sluice facilities The JIU also issued a staffing notice on 21 January 1997, which provided that the minimum numbers of staff to be provided were one nurse and six carers during the day and one nurse and three carers at night. This staffing notice, which was later to be a source of much contention, was accepted by Mrs Kowlessur in writing on 11 February 1997 in terms "I am in agreement with this staffing notice…I will endeavour to ensure that the staffing notice issued on 21 January 1997 will be implemented fully within six months from the date of change of ownership". These staffing levels were based on between 36 and 40 patients and residents being in the home. We do not accept the evidence of Mrs Kowlessur that she was unaware of this requirement, her own written evidence contradicts what she now says. We do accept that when she spoke to Mr Richardson, who was the registered nurse manager when they acquired the home and who carried on in that post until 13 June 1997, that he told her that the home had been managed under the previous owners with less staff than was required under the staffing notice. The staffing levels which Mr Richardson apparently operated were one nurse on each shift and five carers during the day and three or even two carers at night. Mrs Kowlessur has maintained throughout the hearing that staffing at the levels suggested by Mr Richardson were always adequate to provide the level of care necessary, and that the undertaking which she gave to implement the staffing notice fully within six months was deliberately broken by her. Prior to their involvement with Cransford Hall the appellants had had extensive experience, as home owners, as the owners of Broadacres, another dual registered home in Suffolk where they had 38 residents and 18 patients. They had owned Broadacres for 10 years. Mrs Kowlessur is a Registered Nurse, First Level, and Mr Kowlessur is a Registered Nurse, Second Level, in psychiatry. Despite this background and experience, they took over the home without a clear understanding of what was required of them under the staffing notice, apparently accepting bland assurances from Mr Richardson, who was about to become their employee, that the contents of the notice did not matter. They did not appear to know which of their clients were patients and which were residents, and that remained the case for some months. They were beginning to spread their resources extremely thinly, now involved in the ownership and management of two substantial homes. They were about to embark on a major investment programme to upgrade the rather dilapidated facilities at Cransford Hall, and they were to have to rely on the ability and integrity of their appointed manager Mr Richardson. A pattern was established almost immediately of unannounced inspection visits by the JIU. The first on 24 March 1997 was of a routine nature, but thereafter they were almost always the result of complaints to the registration authority, often anonymous. It was a feature of these visits, especially during 1997, that the complaints on which the inspection was based were unsubstantiated, but there were other aspects of the home which really needed urgent improvement. The appellants were however pressing on with their four year development plan for the home, and were clearly committing major resources to the improvement of the facilities and environment for their patients and residents. Although the JIU were frequent visitors to investigate the complaints, there was still a good working relationship between the JIU and the appellants. It is accepted that most, if not all, the complaints were eminating from disaffected staff who had left the appellants employment, and may have been malicious. Mr Richardson was not a satisfactory manager. Because of events which have no direct bearing on this appeal, he was suspended from duty by the appellants, and he then resigned as manager of the home on 13 June 1997. As a short term expedient Mrs Kowlessur became the manager of the home, having previously spent most of her time at Broadacres. She was not satisfied about the issues of clinical care, management and training of her staff, and she set about changing practices. This caused resentment and resistance among her staff, especially her senior nursing staff, and resulted in staff leaving and more anonymous complaints to the JIU. The increasing number of unannounced inspections was putting increasing pressure on the remaining staff, who were in any event under pressure as the home was being run at less that the required or sensible staffing levels. In addition to the requirements of the JIU (which are always a minimum rather than a maximum requirement), the client group served by the home has always been a demanding one because of the high dependency rates of the patients/residents, and the physical size and environment of Cransford Hall, has meant that the demands on staff will always be very high and would point to a need for more than the bare minimum in many circumstances. Mrs Kowlessur's insistence that the home was never understaffed, and that patient care did not suffer as a result, is not accepted during this period. Mrs Kowlessur had taken over the day to day management of the home on 1 July 1997. A Mr Ellis was appointed deputy manager, and attempts were being made to recruit a new manager. Mr Ellis was the only applicant. The JIU were not happy with him as a candidate, and the appellants appear to have accepted that decision. In August 1997 there were a number of applicants for the post, including Mrs Whybrow. She was eventually offered the post of deputy manager as a means of assessing her performance under pressure over an extended period. By now the home and its staff were coming under increasing stress as a result of the continuing complaints investigations that the JIU were obliged to make. It was not unreasonable for the appellants to want to choose their manager with care, particularly as none of the applicants were outstanding. Mrs Kowlessur was also finding it easier to devote more time to the home as she had appointed a new manager, Mr Buswell, to Broadacres. In September and November 1997, the registrations in respect of Cransford Hall were altered, increasing resident numbers from 24 to 30, and decreasing patient numbers from 24 to 18, but no more than 40 to be accommodated at any time. A complaint investigation on 11 February 1998 revealed concerns to the JIU about staffing levels, staff training in fire safety, odour management in bedrooms and an incident of sickness and diarrhoea involving 16 residents which had not been appropriately reported. On 12 February 1998, the appellants informed the JIU that they were buying a small residential home in Surrey called The Beeches. On 17 February 1998, Mr Cole from the JIU wrote a supportive and appreciative letter to Mrs Kowlessur. A further complaint investigation on 17 March 1998 also identified low staffing levels and early waking of residents from 5.45am. Following that inspection and report, a sea change occurred. The JIU were clearly becoming increasing frustrated and dissatisfied with the lack of progress on a number of issues, particularly staffing levels and odour management, and new issues which were of obvious concern to them were appearing, particularly the early morning rising of patients for the staff's convenience. The appellants were of the view that they were being unfairly picked on, and they had reached the conclusion (although they had not publicly expressed it at that time) that they were not going to be treated fairly in Suffolk, and they were going to move to their new, smaller dual registered home in Surrey to be nearer their family and to avoid the complications of what was happening at Cransford Hall. This was not a realistic course of action. They did not have a manager in place at Cransford Hall, Mrs Kowlessur was to be the registered proprietor and person in charge of The Beeches. They proceeded to try and appoint a new manager at the home, and carried out interviews on 20 March 1998, but made no appointment. On 15 April 1998 Mrs Kowlessur was registered as manager of The Beeches (under a condition that she was not to manager any other home), and Mr Kowlessur was designated as responsible for the day to day management at Cransford Hall. Mr Kowlessur has been present at every session that this tribunal has sat. It is acknowledged that he has neither the qualifications nor experience of Mrs Kowlessur. He has not given evidence, and it is clear that his role in the partnership is principally that of an administrator. From what we have heard, his main involvement at the home has been to attend once every two weeks to run the payroll, although he clearly has attended more often on occasions. It has not however been asserted that he has ever exerted any nursing or clinical management, as this is clearly not his area of activity. Eventually, on 12 May 1998, the appellants informed the JIU that Mrs Whybrow had been appointed manager of the home, and it would be expected (particularly bearing in mind the background in the case) that registration of Mrs Whybrow would be a very high priority indeed. The JIU sent the application form to the home on 18 May 1998. Suffice to say, it was not until 14 August 1998 that a properly completed application form was in the hands of the JIU, in contrast to Mrs Kowlessur's application to Surrey SS in respect of The Beeches where the whole process was apparently completed in two months. A 'fit person' interview for Mrs Whybrow was arranged for 1 September 1998, which she cancelled, and that interview did not take place until 9 October 1998 to accommodate the appellants' holiday arrangements. By that time the JIU had identified an unfavourable reference which caused them to consider that Mrs Whybrow might not be a fit person, but which was not communicated to the appellants or Mrs Whybrow. The arrangement which the appellants then made was to retain Mrs Whybrow as deputy manager, and to appoint Mr Ramsamy as a nursing consultant on 27 November 1998. This arrangement inevitably caused confusion. It was no longer clear who was actually managing the home, and having heard Mr Ramsamy try to explain his role, our view is that his appointment was fundamentally designed, at best to compensate for the fact that no proper manager was in situ at the home, or at worst to conceal that fact. Indeed, on 3 December 1998 the appellants were writing to the JIU maintaining that Mrs Whybrow was the appointed manager. Following those events, the JIU issued notices of proposal to refuse registration of Mrs Whybrow and to cancel the registration of the appellants on 10 December 1998. Mrs Jennings then applied for registration on 8 January 1999. Her application proceeded in the normal way and she has been the nursing manager of the home since then. She has had to cope with great adversity. The home was essentially unstable by the time she arrived, although it clearly has retained a core staff of nurses and carers who are completely devoted to their charges and their care and wellbeing. Not surprisingly, the appellants surrendered their Part II registration on 12 April 1998, and the home has been run as a residential home under Part I since then. The tribunal have visited the home (at the invitation of the appellants) and were impressed by the atmosphere, and the contentment of those being cared for there. Mrs Jennings impressed us. The size of the home's client group is steadily diminishing, and she is clearly constrained in what she can achieve. To the appellants' credit, some capital has continued, although it must be very difficult for them because of their obvious financial difficulties with the home. THE LAW The burden of proof on an appeal rests on the registration authority seeking to cancel registration. The standard of proof is that the authority must satisfy the tribunal of the truth of their allegations on the balance of probabilities. The degree of probability will depend on the gravity of the issue which the tribunal is called upon to decide. Section 10 of the Registered Homes Act 1984 provides:     "the registration authority may cancel the registration of a person in respect of a residential care home –   (a) on any ground which would entitle them to refuse an application for his registration in respect of it".   Section 9 sets out the matters relating to the refusal of registration. It provides:   "The registration authority may refuse to register an applicant for registration in respect of a residential care home if they are satisfied – (a) that he or any other person concerned or intended to be concerned in carrying on the home is not a fit person to be concerned in carrying on a residential care home;   (b) that 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 so used, or   (c) that the way in which it is intended to carry on the home is such as to provide services or facilities reasonably required".   Section 12 et sec provide the procedure for cancellation. The registration authority has to give the registered person notice of a proposal to cancel the registration, setting out the reasons for the proposal. Under section 13 the registered person must be given the opportunity to make representations to the registration authority, and it s/he says that s/he wants to make oral representations they must be given an opportunity to appear before a committee or sub-committee of the authority for that purpose. Having considered the representations, and if necessary having heard the oral representations, under section 14, the registration authority may decide not to adopt the proposal, or may decide to adopt it. If they decide to adopt it, they must serve notice of the decision on the registered person. That notice must tell the registered person of his/her right to appeal under the succeeding section. He decision to cancel registration takes effect, if there is no appeal, 28 days after the receipt by the registered person of the notice of intention to adopt the proposal. If there is an appeal, the decision does not take effect until the appeal is determined or abandoned. Section 15 provides appeals. Section 15(1) provides:   "An appeal against –     (a) a decision of a registration authority     shall lie to a Registered Homes Tribunal" Section 15(4) provides: "On an appeal against a decision of a registration authority the tribunal may confirm the decision or direct that it shall not have effect". Section 15(5) also gives the tribunal power to vary conditions or to direct that further conditions or such conditions as it thinks fit shall be applied. Section 34 contains similar provisions which relate to registered nursing homes under Part II of the Act. REASONS FOR DECISION The essence of the registration authorities reasons for cancellation of registration are: • The vacuum in management at Cransford Hall • Chronic staff shortages • Problems relating to the welfare of it residents The respondents then identified five areas where they argued that specific problems arose:

1. Lack of Management We find that there was an effective vacuum in management from 13 June 1997 (when Mr Richardson left) until Mrs Jennings was appointed manager on 17 March 1988. During that period, Mrs Whybrow was nominally manager for part of the time, but it is common ground that she was not satisfactory, and most of the problems identified hereafter were to arise during the period she was either manager or deputy manager. Mrs Kowlessur was to provide management cover for some time of this period, but from 15 April 1998 she was the registered manager of The Beeches in Surrey, and was not providing any meaningful management after that date to Cransford Hall.

2. Staff Levels The staffing notice produced by the respondents cannot be relied on to judge the staffing levels at the home. The respondents were wrong in attempting to apply a staffing notice to a dual registered home. It can only apply to a nursing home, and there is no basis for it to be applied to a entirely different types of home. The position with residential care homes is that staffing levels are to be agreed between the home owner and the registration authority. That process was not formally adopted in this case either, although Mrs Kowlessur did accept the staffing levels specified in the defective staffing notice. The requirements for adequate staffing are contained within the regulations. In the case of residential care homes, Regulation 10 of the Residential Care Homes Regulations 1984 provides that: "the person registered shall having regard to the size of the home and the number, age, sex and condition of the residents –   (a) employ by day and, where necessary, by night suitably qualified and competent staff in numbers which are adequate for the well being of the residents." Similarly, for nursing homes, Regulation 12 (1) of the Nursing Homes and Mental Nursing Homes Regulations 1984 provides that: "The person registered shall, having regard to the size of the home and the number, age, sex and condition of the patients therein –   (a) provide adequate professional, technical, ancillary and other staff". Our unanimous view, based on the expert knowledge and experience of the members of the tribunal, is that the levels contained in the erroneous staffing notice were the absolute minimum required to provide adequate care to a highly dependent group of patients and residents, in a building which, because of its size and age, itself created difficulties in providing adequate care. Mrs Kowlessur specifically agreed to the contents of that notice and stated that she would endeavour to ensure that the staffing levels would be implemented within six months. She conceded in her evidence to us that she deliberately broke that promise. She subsequently, more often than not, produced staff rotas which were below the agreed, or an adequate, staffing level. Analysis of the staff rotas shows that frequently the home was understaffed (on the basis of the staff rota – actual staff was often even less because of illness, domestic emergencies etc), and we consider that that was to the detriment of the patients and residents.

3. Staff Training We have heard evidence that staff training records were lost in mysterious circumstances, and that, in particular, issues of odour management and dealing with challenging behaviour in patients with dementia, were more of a problem than they need have been because of a lack of appropriate training. We accept that training was not given as high a priority as it might have been but on balance we are not satisfied that this ground is made out.

4. Welfare and dignity of patients and residents We are satisfied that the welfare and dignity of the patients and residents was not properly taken into account, as evidenced by the early morning rising of residents to suit the convenience of staff, the use of commodes in other residents' rooms on the ground floor, and a failure to tackle effectively the problem (which certainly originated from the period of the previous owners of the home) of urine odour management in some of the residents rooms.

5. Hygiene We are also satisfied that hygiene was a problem. It was unclear from the evidence what the home's policies were over handling soiled bedlinen, and whether the policy was the same or different for other soiled clothing. For a significant period the home did not have a washing machine with sluicing facility. That was not of itself fatal (although the appellants had undertaken to obtain such a machine), but there was clear confusion as to what practices were to be followed. As a result of these shortcomings there was a clear risk of infection to the residents for a significant period, and we are satisfied that the ground is made out. The above findings clearly demonstrates that at 10 December 1998 there were sufficient grounds to justify the registration authorities in proposing to cancel the appellants' registration in respect of both Parts I and II. The subsequent surrender of the Part II registration on 12 April 1999 does not change that. The argument that there is no useful purpose served in considering whether the appellants or the home are fit as a nursing home, and that it would be sensible for the appeal in respect of Part II to succeed, does not persuade us. Section 34 (4) of the Registered Homes Act 1984 provides that: "On an appeal against a decision of the Secretary of State the tribunal may confirm the decision or direct that it shall not have effect". We are satisfied that in December 1998, for the reasons shown above, the appellants were not fit to run a nursing home, and their appeal fails in respect of the cancellation of their Part II registration. The situation with regard to Part I registration is very different, as Cransford Hall has continued to operate as a residential care home since notice of cancellation. During (and to a certain extent before that period) a number of significant changes have taken place:

1. Numbers of residents have reduced from a figure near 40 to the present level of

22. At that level of occupancy, current staffing levels are adequate.

2. Some of the most dependent residents have moved, either transferred to more suitable accommodation, or because they have died.

3. Mrs Jennings has been appointed manager, and has remained in post, and the effects of that have been beneficial.

4. The appellants have continued to upgrade and improve the fabric of the home

5. Care issues identified by the respondents (early morning routine, toiletting, odour management, shaving male residents and cleanliness) have all been addressed, and new care plans have been prepared. In general, a much more professional approach has been adopted. In addition to the above, the tribunal have heard evidence from a number of members of staff at the home, and also from the General Practitioner who visits the home, and from the son of one of the residents. The tribunal have also visited Cransford Hall. Our very clear impression is that the residents are content and well looked after in their home, and that there would have to very strong and persuasive reasons to to justify cancellation and uprooting them from where they are comfortable and secure to somewhere they do not know, among people they do not know. That clearly cannot be the only, or even the main consideration, for the tribunal, but it goes to the gravity of the issue to be decided. In view of the findings above the tribunal are satisfied that the respondents decision to cancel registration in December 1998 was correct. The tribunal cannot however ignore the changes that have taken place. It is a very finely balanced judgement, but taking everything into account, their effect is to cause us now not to be satisfied on the balance of probabilities that there should be cancellation of the appellant's registration. Our unanimous and firmly held view is that Part I registration should continue on the basis that current resident/staff ratios are maintained at the present level, and that any increase in numbers of residents should be accompanied by a corresponding increase in staff numbers, by agreement with the respondents. Consideration should also be given to the dependency of the residents admitted. It is the tribunal's view that night care staff should not be expected to leave the main building to undertake non core duties (such as laundry) at present staffing levels. MR R COIA MRS S ADAMS MR J FISHER