Tekman & Ors v Commission for Social Care Inspection, Court of Appeal - Establishments and Agencies, October 01, 2007, [2006] EWCST 988(EA)

Resolution Date:October 01, 2007
Issuing Organization:Establishments and Agencies
Actores:Tekman & Ors v Commission for Social Care Inspection
 
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Care Standards Tribunal 1Tekman & Ors v Commission for Social Care Inspection [2006] EWCST 988(EA) (01 October 2007)Chetin Mehmet TekmanSamuel Laud AshiteyGeorge Aryiku(Bridge House Care Homes Ltd)[Bridge House (Sutton)]-v-Commission for Social Care Inspection[2006] 0869.EA[2007] 0987.EA[2007] 0988.EA-Before-Mr A Wadling (Nominated Chairman)Ms J Cross Ms J FunnellDecisionHeard on 9 to 13 July and 30 July to 3 August 2007.RepresentationThe Appellants appeared in personFor the Respondent: Ms Sullivan of counselAppeal1. This is an appeal under Section 21 of The Care Standards Act 2000 (``the Act'') against a notice of decision of the Respondent dated 16th October 2006 made under section 14(1)(c) of the Act to adopt a notice of proposal of cancellation of registration under section 17(4)(a) of the Act.Preliminary Matters2. The registered provider of the Home is Bridge House Care Homes Limited. The Appellants are the sole Directors and shareholders of this private limited company.3. Bridge House is registered as a Care Home for adults with mental disorder (excluding learning disability and dementia). It was first registered in September 1998. The Home is registered initially to provide care to a maximum of eleven service users. At the date of the hearing there were eight persons in residence. Registration of the Home is currently subject to the condition that no new admissions may be made to the home until such time as there is a registered manager in post, and having regard to the size of the Care Home, the statement of purpose and the number of needs of service users, the Care Home is conducted so as to promote and make proper provision for the health and welfare of service users and to make proper provision for the care, and where appropriate, treatment, education and supervision of service users.Representation4. The Appellants were not represented at the hearing and so it was agreed that one of their number would act as advocate in questioning witnesses on those matters affecting them all so as to avoid unnecessary repetition of questioning. This role was assumed principally by Mr Tekman although both Mr Ashitey and Mr Aryiku, to a limited extent, did exercise their right to cross examine the Respondent's witnesses. 5. In order to assist the Appellants in the conduct of their case, counsel for the Respondent agreed to present her case and call her witnesses first so as to assist the Appellants in identifying the matters which they should address through oral and documentary evidence.The Hearing6. The hearing had a time estimate of one week. By the fifth day it became apparent that a further week was needed to complete the hearing of evidence. We therefore had to adjourn the hearing to the earliest available date, some two weeks later. This did however give the Appellants further opportunity to prepare their case and to give evidence.Appellants' case7. The Appellants' case is that the Home is run within the requirements of the regulatory regime as set out in their written response to the notice of proposal to cancel their registration dated 12 June 2007 (``the notice''). The Appellants' response to the notice and their case before us was to attack the competence and credibility of the CSCI Inspectors. ``(We) believe that CSCI reasons are not accurate and based on exaggerations, half truths and that Bridge House has made tremendous amount of progress in the past 12 months (1.005)``. This theme was further developed in the Appellants' written closing submissions. ``The Appellants' case is that the numbers of alleged breaches of regulations are inaccurate and exaggerated. The Inspectors have been concentrating on finding faults and ignoring the positive aspects. The home's improvements had been systematically played down and all efforts were concentrated on identifying new breaches of regulations. The inspectors were not consistent with each other about what was met, partially met or not met vis-à-vis the regulations. They gave misleading feedback and contributed to the creation of confusion and lack of understanding. They gave inaccurate and inappropriate advice that caused the Appellants to question their competence and motives.''Respondent's case8. The Respondent's case is that the Appellants have in the past, currently and in the future will continue to fail to comply with the Care Homes Regulations 2001 and the subsidiary National Minimum Standards. The Home has been and is being carried on otherwise than in accordance with the applicable Regulations and the Commission for Social Care Inspection (CSCI's) requirements, and registration should therefore be cancelled. The evidence in support of the Respondent's case is derived from alleged breaches of the regulations identified in the course of inspections and set out in the notice of proposal to cancel the Appellants' registration. Evidence9. Oral evidence on behalf of the Respondent was given by the following CSCI Inspectors; Mr Pennells (responsible for the inspection of Bridge House), Mr Williams, Mr Halliwell, and Mr Town, also Mr Edwards, a client contracts officer (Sutton). It was also intended to call Mr Kibble a care manager for Surrey and Mr Stapley, an Inspector; however both were unwell and certified as unfit to attend the hearing. We took their statements into account bearing in mind that no cross examination of their evidence had been possible.10. Mr Tekman and Mr Aryiku gave evidence for the Appellants.Burden and Standard of proof11. The burden of proof is on the Respondent to prove on the balance of probabilities that the decision to cancel the Appellants' registration was correct and remains so.Introduction12. The first of the inspections of Bridge House under the Care Homes Regulations 2001 took place on 11 and 12 February 2003. The report contained 91 requirements and five recommendations including the production of a Statement of Purpose and a Service User's Guide for Bridge House. This was made a requirement in order to obtain compliance with Regulations 4 and 5. Mr Pennells observed that as this was the first inspection under the new regulations, the number of requirements and regulations was expected to be high, but this number was significantly higher than for comparable homes during this first inspection cycle. (The number of requirements and recommendations made between 2003 and 2007 is set out at Schedule A.) He also had to encourage the Appellants to get a copy of the new standards which had been in force since April 2002.Breaches of the Care Homes Regulations 2001 relied on by the RespondentRegulations 4 and 5Statement of purpose4.--(1) The registered person shall compile in relation to the care home a written statement (in these Regulations referred to as ``the statement of purpose'') which shall consist of--(a) a statement of the aims and objectives of the care home;(b) a statement as to the facilities and services which are to be provided by the registered person for service users; and(c) a statement as to the matters listed in Schedule 1.(2) The registered person shall supply a copy of the statement of purpose to the Commission and shall make a copy of it available on request for inspection by every service user and any representative of a service user.(3) Nothing in regulation 16(1) or 23(1) shall require or authorise the registered person to contravene, or not to comply with--(a) any other provision of these Regulations; or(b) the conditions for the time being in force in relation to the registration of the registered person under Part II of the Act.Service user's guide5.--(1) The registered person shall produce a written guide to the care home (in theseRegulations referred to as ``the service user's guide'') which shall include--(a) a summary of the statement of purpose;(b) the terms and conditions in respect of accommodation to be provided for service users, including as to the amount and method of payment of fees;(c) a standard form of contract for the provision of services and facilities by the registered provider to service users;(d) the most recent inspection report;(e) a summary of the complaints procedure established under regulation 22;(f) the address and telephone number of the Commission.(2) The registered person shall supply a copy of the service user's guide to the Commission and each service user.(3) Where a local authority has made arrangements for the provision of accommodation, nursing or personal care to the service user at the care home, the registered person shall supply to the service user a copy of the agreement specifying the arrangements made.13. The first attempt to produce a Statement and guide (2.270) did not address any of the requirements set out in the Regulations and did not .distinguish between the different functions of the two documents. Mr Tekman's explanation was the absence of a manager and the Appellants had to come to terms with the new regulatory regime. 14. A further attempt, responding to immediate requirement notices, contained factual errors and did not include the required content, nor was it possible to distinguish between the purposes of the two documents. An acceptable version was finally produced three years later (3.946). The Appellants do not dispute these facts but say that the final version was in the hands of the Inspectors for at least six months before the Notice was issued.Regulation 7Fitness of registered provider7.--(1) A person shall not carry on a care home unless he is fit to do so.(2) A person is not fit to carry on a care home unless the person--(a) is an individual who carries on the care home--(i) otherwise than in partnership with others, and he satisfies the requirements set out in paragraph (3);(ii) in partnership with others, and he and each of his partners satisfies the requirements set out in paragraph (3);(b) is a partnership, and each of the partners satisfies the requirements set out in paragraph (3);(c) is an organisation and--(i) the organisation has given notice to the Commission of the name, address and position in the organisation of an individual (in these Regulations referred to as ``the responsible individual'') who is a director, manager, secretary or other officer of the organisation and is responsible for supervising the management of the care home; and(ii) that individual satisfies the requirements set out in paragraph (3).(3) The requirements are that--(a) he is of integrity and good character;15. The Respondent's case on the issue of integrity and good character is that ``a registered provider is responsible for the care of vulnerable adults and therefore needs to be someone the Commission can rely upon, to be open with them and disclose any matters of concern when they arise, particularly when there can be large gaps in time between inspections.'' The Appellants' are not people of integrity because of the way the Home has been run, their attitude towards the Inspectorate, failing to comply with deadlines etc. and a refusal to accept any criticism from the Commission. This approach is reflected in the Appellants' closing submissions. 16. On this issue of the integrity and good character of the Appellants, we have very serious concerns as to the purpose of the repeated verbal attacks on various members of the Inspectorate when carrying out their duties to ensure the well being of the service users of the care home. On the evidence before us, this attitude appears to have persisted over several years including Mr Tekman`s statement to an Inspector to the effect of ``I hope you have an accident''. Mr Tekman's explanation was that when hurrying back to Bridge House in response to the request of the Inspectors, he nearly had a road accident for which he blamed the Inspectors.17. In the Appellants' written submissions it is stated ``Mr Tekman has already expressed his sincere regrets (at the hearing). If this brings his integrity into question then he (Mr Tekman) is willing to give up any involvement with Bridge House''.18. If this was the only occasion it could perhaps be overlooked but this is coupled with other comments in the response to the Notice, such as ``We are under attack by an ill supervised rogue inspector'' (Mr Pennells); ``His recent reports on the home are good indicators of his bias and possibly racist position'' (1.005 and 1.115). (Mr Pennells has been responsible for the inspection of Bridge House since 2002). ``(We) believe that CSCI reasons are not accurate and based on exaggerations, half truths and that Bridge House has made tremendous amount of progress in the past 12 months'' (1.005).19. We also note the statement in paragraph 40 of the Appellants' closing submissions that on 6 December 2005 Mr Pennells and Mr Halliwell visited the Home to conduct an unannounced inspection. They tried to engage Mr Tekman on the subject of the progress of meeting requirements set by the Commission. In Mr Pennells' opinion, ``Mr Tekman was negative and obstructive in his responses'' (1.181). When asked if the Statement of Purpose had been created, two years after it had been made a requirement, he replied ``we've thrown it away with the rest of the rubbish''.20. On another occasion (1.206) Mr Stapely, an Inspector was present at Bridge House with Mr Pennells. He was inspecting staff records and discussing the lack of a training programme and staff records with Mr Ashitey who became very aggressive and behaved in a very threatening manner. In his statement he states that ``He accused me of being racist. Some ten minutes later he returned and apologised.'' Mr Ashity did not give evidence at the hearing.21. Mr Kibble is a care manager for Surrey County Council (1.214). In 2004 he became the care manager of DF, a resident of Bridge House. On 13 December he went to Bridge House for a meeting concerning his client being supported to move to premises for more independent living. The meeting was not at all constructive. ``Mr Aryiku actually became quite aggressive at one stage and began shouting.'' Nothing was put forward by the home to approve the position regarding DF moving to new accommodation. We find that such conduct as set out above is not consistent with being a person of integrity and good character.Regulation 8Appointment of manager8.--(1) The registered provider shall appoint an individual to manage the care home where--(a) there is no registered manager in respect of the care home; and(b) the registered provider--(i) is an organisation or partnership;(ii) is not a fit person to manage a care home; or(iii) is not, or does not intend to be, in full-time day to day charge of the care home.22. The last appointed manager left for reasons of ill health in 2001. According to Mr Tekman, It was hoped that she might recover and for two years nothing was done to recruit a replacement, temporary or permanent.23. In September 2003 it was proposed that Mr Tekman should become the manager but the application was not pursued. In 2004 enquiries were made with agencies without success. According to Mr Ashitey, none of the applicants had the necessary mental health experience.24. In their response to the Notice of proposal to cancel the registration, it is said (1.008) that; ``The primary reason for our inability to recruit a suitable manager was the constant attempt to undermine Bridge House by one particular inspector called David Pennells.''25. In November 2005 Mr Tekman was put forward as acting manager though he had no qualifications for the post. No further action was then taken.The post remains vacant.Regulation 10Registered person: general requirements10.--(1) The registered provider and the registered manager shall, having regard to the size of the care home, the statement of purpose, and the number and needs of the service users, carry on or manage the care home (as the case may be) with sufficient care, competence and skill.(2) If the registered provider is--(a) an individual, he shall undertake;(b) an organisation, it shall ensure that the responsible individual undertakes;(c) a partnership, it shall ensure that one of the partners undertakes, from time to time such training as is appropriate to ensure that he has the experience and skills necessary for carrying on the care home.26. The Respondent's submission is that Bridge House has not been carried on with sufficient care and skill and this has led to the high number of failures to comply with the Standards and Regulations. The Respondent therefore relies on the evidence of all the other breaches to show the breach; e.g. the failure of the Appellants to comply with the Requirement in 2003 for residents to have their own door keys. This was not complied with until 2006 although it was stated to be a concern in 2003.27. The Appellants' response is that the Respondent did not initiate the proposal to cancel until a time when the number of breaches ``was diminishing rapidly.''Regulation 12 (1)(a)(b), (2) (3) (4)Health and welfare of service users12.--(1)The registered person shall ensure that the care home is conducted so as--(a) to promote and make proper provision for the health and welfare of service users;(b) to make proper provision for the care and, where appropriate, treatment, education and supervision of service users.(2) The registered person shall so far as practicable enable service users to make decisions with respect to the care they are to receive and their health and welfare.(3) The registered person shall, for the purpose of providing care to service users, and making proper provision for their health and welfare, so far as practicable ascertain and take into account their wishes and feelings.(4) The registered person shall make suitable arrangements to ensure that the care home is conducted--(a) in a manner which respects the privacy and dignity of service users;(b) with due regard to the sex, religious persuasion, racial origin, and cultural and linguistic background and any disability of service users.28. In the initial reports of the Inspectors carrying out the Inspection in June 2006 a number of deficiencies were identified but some improvements had been made. There still remained outstanding problems with individual care plans addressing matters regarding death and dying (outstanding since 2003), the availability of policies to the service users and their being able to make decisions with respect to the care they are to receive and their health and welfare. It was not until June 2007 that the matter had been addressed with the service users by which time one of them had died. There was still insufficient involvement by the service users in policy development. In the case of the resident MH who has limited vision, she had no independent access to the current policies at all although Mr Tekman said that he was investigating putting her policy on a CD.29. In the 2007 Inspection, the Inspector was told by three service users that they had no previous involvement in the development of the policies and did not have copies of their care plans. There were no comments, views or wishes written down by residents on the care plans seen by the Inspectors.30. The Appellants' claim in their Closing Submissions that as consultation is with people with enduring mental health problems, this has meant that the desired level of consultation and involvement in this area has been minimal and can be improved upon. Reference is also made to the acting manager and staff members obtaining NVQ level 4 and 2 and that they will be in a better position to devote more time to achieving a better understanding and involvement by the service users of all the various policies and procedures. Regulation 13 (2) (3) (4)(a) (b) (c) and (6)Further requirements as to health and welfare(2) The registered person shall make arrangements for the recording, handling, safekeeping, safe administration and disposal of medicines received into the care home.(3) The registered person shall make suitable arrangements to prevent infection, toxic conditions and the spread of infection at the care home.(4) The registered person shall ensure that--(a) all parts of the home to which service users have access are so far as reasonablypracticable free from hazards to their safety;(b) any activities in which service users participate are so far as reasonably practicable free from avoidable risks; and(c) unnecessary risks to the health or safety of service users are identified and so far as possible eliminated,(6) The registered person shall make arrangements, by training staff or by other measures, to prevent service users being harmed or suffering abuse or being placed at risk of harm or abuse.Regulation 13(2)31. This regulation deals with arrangements for recording, handling safekeeping and administration of medicine.32. Four requirements concerning the health and welfare of the service users were set at the Inspection on 11 February 2003;(1) the practice of secondary dispensing must cease from the time of the Inspection and a monitored dosage system (MDS) must be introduced at the earliest opportunity (12 February 2003 was agreed).(2) Medication profiles showing the history of medication prescribed over time to each service user must be held for each service user and clearly kept up to date ( completion by 30 April 2003 was agreed).(3) A policy and procedure with regard to medication at the Home must be written for the Home and reflect the new procedure for MDS administration as well as documenting the entire medication process, including the need to have a returns book (completion by 1 April 2003 was agreed).(4) All staff must be retrained in medication management procedures following the new system. Records of staff medication training and full confirmation of their resulting competence must be held at the Home (completion by 30 May 2003 was agreed);Requirement (2) was complied with by September 2003.Requirement (1) was complied with by June 2006Requirement (4) was not pursued.Requirement (3) date not known.Regulation 13(3)33. A requirement set in the initial inspection was for a clear infection policy including a hand washing procedure. This remained outstanding until February 2007. Testing water for legionella took place in a less than satisfactory basis and it was not until June 2006 was the matter dealt with.Training Regulation 13(4) 34. A requirement was set in the February 2003 report that the staff be trained in first aid. The requirement was met in April 2004 when five staff had been trained.35. By the inspection in June 2006, the necessary documentation was still deficient in various respects including inaccurate records of service users' presence at fire drills and related matters.Regulation 13(6)36. Policies on whistle blowing were required in February 2003 and completed and accepted in 2006. Also required was the information necessary to contact the Commission. This requirement remained outstanding from April 2004 to December 2005.37. In April 2004 a requirement was made that the home provides an in-house adult protection policy. There was a Sutton policy at the home but in December 2005 Mr Tekman was unable to produce such a document. Regulation 14 (1) (2)Assessment of service users14.--(1) The registered person shall not provide accommodation to a service user at the care home unless, so far as it shall have been practicable to do so--(a) needs of the service user have been assessed by a suitably qualified or suitably trained person;(b) the registered person has obtained a copy of the assessment;(c) there has been appropriate consultation regarding the assessment with the service user or a representative of the service user;(d) the registered person has confirmed in writing to the service user that having regard to the assessment the care home is suitable for the purpose of meeting the service user's needs in respect of his health and welfare.(2) The registered person shall ensure that the assessment of the service user's needs is--(a) kept under review; and(b) revised at any time when it is necessary to do so having regard to any change of circumstances.38. The first part of this regulation deals with assessment of a new admission which at Bridge House has not taken place since 2005. (The second part is dealt with under the heading of Regulation 15.)Regulation 15 (1) (2)(a)(c)(d)Service user's plan15.--(1) Unless it is impracticable to carry out such consultation, the registered person shall, after consultation with the service user, or a representative of his, prepare a written plan (``the service user's plan'') as to how the service user's needs in respect of his health and welfare are to be met.(2) The registered person shall--(a) make the service user's plan available to the service user;(b) keep the service user's plan under review;(c) where appropriate and, unless it is impracticable to carry out such consultation, after consultation with the service user or a representative of his, revise the service user's plan; and(d) notify the service user of any such revision.39. In the course of the hearing the tribunal was provided with copies of the new form of documents constituting the service user's plan for four of the residents, BWH, RN, RI and MH.40. Each service user has needs and risk assessment, a Support Plan and some individual care and activity plans. 41. The format of the needs and risk assessment and the Support Plan are generally good. The Respondent's concern is that the content in each case is not so. The problems are present in all 4 sets of documents. The case of R I is used as an example;42. They are incomplete; in the risk assessment there is no indication how to deal with all the risks assessed in section 5 of the support plan, and no useful information in relation to the risk factors identified in the needs assessment. The questions in the needs and risk assessment - e g about budgeting, are not answered, and contact with his cousin noted in the CPA review is not noted in the needs and risk assessment or anywhere in the support plan. His list of daily activities does not include his hobby of fishing.43. Neither the needs and risk assessment nor the support plan have been signed by R or a representative.44. Similar comments can be made about all the individual care plans.45. The summary of assessed needs is identical for RI and MH and so is the ``Summary of Identified Needs for RN and BWH.46. Further incorrect information was found in BWH's needs and risk assessment which states that ``she has not expressed a desire to visit places of worship''. Prior to this document being created, BWH had told an inspector that she did in fact wish to attend church and this information was passed to Mr Tekman before the needs assessment was in her file. Mr Tekman stated that previous church going had brought on psychotic episodes. There was no risk assessment in the file identifying such a risk.47. An additional error found was that a service user had one name as next of kin on his file and another on a wall chart recording such information. There was no phone number in either case to contact that person.48. None of the care plans were truly individualised or personalised. No allowance was made in the plans for progress towards goals or for goals to be modified.49. None of the service plans were signed by the service user or any person on his or her behalf. There appears to have been no attempt to obtain any suitable person in the event of no family member being available.Regulation 16(1) and (2)(b)(c)(e)(f)(i)(k)(l)(m)(n)Facilities and services16.--(1) Subject to regulation 4(3), the registered person shall provide facilities and services to service users in accordance with the statement required by regulation 4(1)(b) in respect of the care home.(2) The registered person shall having regard to the size of the care home and the number and needs of service users--(b) provide telephone facilities which are suitable for the needs of service users, and make arrangements to enable service users to use such facilities in private;(c) provide in rooms occupied by service users adequate furniture, bedding and other furnishings, including curtains and floor coverings, and equipment suitable to the needs of service users and screens where necessary;(e) arrange for the regular laundering of linen and clothing;(f) so far as it is practicable to do so, provide adequate facilities for service users to wash, dry and iron their own clothes if they so wish and, for that purpose, to make arrangements for their clothes to be sorted and kept separately;(j) after consultation with the environmental health authority, make suitable arrangements for maintaining satisfactory standards of hygiene in the care home;(k) keep the care home free from offensive odours and make suitable arrangements for the disposal of general and clinical waste;(l) provide a place where the money and valuables of service users may be deposited for safe keeping, and make arrangements for service users to acknowledge in writing the return to them of any money or valuables so deposited;(m) consult service users about their social interests, and make arrangements to enable them to engage in local, social and community activities and to visit, or maintain contact or communicate with, their families and friends;(n) consult service users about the programme of activities arranged by or on behalf of the care home, and provide facilities for recreation including, having regard to the needs of service users, activities in relation to recreation, fitness and training.50. The Respondent's case is that the facilities and services are not being provided and this is reflected in the inadequacies of content in the service user plans.51. The June 2007 inspection report under the heading of Regulation 16 records that;``Inspection of the files revealed that Bridge House staff had drawn up an individual activity plan for each of the residents whose files were inspected. These plans were linked with the care plans that were also seen on the files but both were scant in their detail and certainly did not evidence that information and encouragement was being given to residents to enable them to develop their social, emotional, communication and living skills.Staff interviewed said that they used the individual activity plans in order to assist the residents who they work together with as their key workers, but little evidence arose from either the file review or the staff interviews that this requirement or these needs of the residents is being met. These plans were linked with the care plans that were also seen on the files but both were scant''.52. The Appellants' case is that the residents are well integrated into the community. They use the local facilities and seven of them have contact with family and friends by visits or phone and letter. A group trip has been organised about once a month for the past 12 months.Regulation 17 (1)(a)(b)(2)(3)(a)(b)Records17.--(1) The registered person shall--(a) maintain in respect of each service user a record which includes the information, documents and other records specified in Schedule 3 relating to the service user;(b) ensure that the record referred to in sub-paragraph (a) is kept securely in the care home.(2) The registered person shall maintain in the care home the records specified in Schedule 4.(3) The registered person shall ensure that the records referred to in paragraphs (1) and (2) (a) are kept up to date; and(b) are at all times available for inspection in the care home by any person authorised by the Commission to enter and inspect the care home.53. Two matters concerning the service users are relied on as evidencing breaches of this regulation.54. Five of the service users receive money from their local authority via the Respondents and more money than should have been was paid to them. In February 2003 the only requirement for transactions of this kind was that records should be kept. The Inspection Report of April 2004 included a requirement that thorough records be kept and an external auditing arrangement be put in place for these transactions. By January 2006 this arrangement was still un-audited and correspondence led to a meeting with Mr Kibble in January 2006 to explain why Mr Tekman should stop the practice, which he agreed to do. The implementation of an auditing procedure was shown to have been put into effect in April 2007.55. The second matter was that service users' documentation was not being kept in accordance with Standard 10. Personal information of the service users was not kept as per the requirement made in February 2005. This was considered to be met in the June 2007 report.56. Schedule 4 Para 7 of the Care Homes Regulations 2001 requires there to be a copy of the duty roster of persons at the care home, and a record of whether the roster was actually worked. 57. The staffing requirement made in 2003 was for two staff to be on duty during the day and one at night (a manager and one staff member would be sufficient over short term periods). This continued to be the required staffing level thereafter.58. The Inspectorate was concerned to be able to check whether the staffing levels were being complied with. One of the difficulties was that the Appellants apparently did not consider it necessary for them to record the fact if they did a night shift as they were the employers. Nor was it possible to make any assessment of how much time they spent in the Home overall as the most recent entry in the director's visit book was 17 February 2005.59. In January 2004 no rota was seen and a requirement made for its production. It was produced in April but was unavailable in the following December. Subsequent rotas show a deficiency in the number of staff on a number of occasions.60. The Appellants response is that errors (in recording) have occurred due to human failings.Regulation 18 (1)(a)(c)(i)(ii)(iii)(2)(4)Staffing18.--(1) The registered person shall, having regard to the size of the care home, the statement of purpose and the number and needs of service users--(a) ensure that at all times suitably qualified, competent and experienced persons are working at the care home in such numbers as are appropriate for the health and welfare of service users;(c) ensure that the persons employed by the registered person to work at the care home receive--(i) training appropriate to the work they are to perform [including structured induction training] and(ii) suitable assistance, including time off, for the purpose of obtaining further qualifications appropriate to such work.(2) The registered person shall ensure that (a) persons working at the care home are appropriately supervised; and(b) for the duration of a new worker's induction training-(i) a member of staff who is appropriately qualified and experienced, is appointed to supervise the new worker;(ii) as far as is practicable, the staff member is on duty at the same time as the new worker; and(iii) the new worker does not escort any service user away from the care home premises unless accompanied by the staff member.(4) The registered person shall make arrangements for providing persons who work at the care home with appropriate information about any code of practice published under section 62 of the Act.61. No staff job descriptions have been seen by the Inspectors since 2003. Requirements to produce evidence of skills and training in mental health specific issues and evidence of NVQ training should have been provided to the Commission. There are limited supervision records of staff training but not what took place or the dates on which it happened.62. It was recommended in the February 2003 report that 50% of the staff should achieve NVQ2; this was only complied with in June 2007. There is no training budget but Mr Tekman`s evidence was that staff had never been refused the money to train. He also claimed to have a training plan. Training plans were produced to the tribunal, the Respondent's response was that ``the format is good, again the content is not''. They were training profiles but there was no information as to when training took place or whether further training was required.Regulation 19Fitness of workers19.--(1) The registered person shall not employ a person to work at the care home unless--(a) the person is fit to work at the care home;(b) subject to paragraph (6), (8) and (9) he has obtained in respect of that person the information and documents specified in paragraphs 1 to 9 of Schedule 2;(ii) except when paragraph (7) applies, paragraph 7 of that Schedule;(iii) where paragraph (7) applies, paragraph 8 of that Schedule; and(c) he is satisfied on reasonable grounds as to the authenticity of the references referred to in paragraph 5 of Schedule 2 in respect of that person.(5) For the purposes of paragraphs (1) and (4), a person is not fit to work at a care home unless--(d) full and satisfactory information is available in relation to him in respect of the following matters--(i) each of the matters specified in paragraphs 1 to 9 of Schedule 2;(ii) except where paragraph (7) applies, each of the matters specified in paragraph 7 of that Schedule;(iii) where paragraph (7) applies, each of the matters specified in paragraph 8 of that Schedule.(6) Paragraphs (1)(b) and (5)(d), in so far as they relate to paragraph 7 of Schedule 2, shall not apply until 1st April 2003 in respect of a person who immediately before 1st April 2002 is employed to work at the care home.(7) This paragraph applies where any certificate or information on any matters referred to in paragraph 7 of Schedule 2 is not available to an individual because any provision of the Police Act 1997 has not been brought into force.(9) Where the conditions set out in paragraph (10) are satisfied, the registered person may permit a person (the new worker) to start work at a care home notwithstanding that paragraphs (1) (b) and 5(d) have not been complied with in so far as they relate to paragraph 7 of Schedule 2.(10) The conditions are-(a) a criminal record certificate has been applied for in respect of the new worker pursuant to section 113 or, if applicable, section 115 of the 1997 Act; and(b) full and satisfactory information in respect of the new worker has been obtained in relation to paragraph 7 of Schedule 2 in so far as it relates, where applicable, to sections 113(3A) or 115(6A) of the 1997 Act;. And sections 113(3C) (a) and (b) or 115 (6B)(a) and (b) of that Act.63. CRB/PoVA checks were not carried out in a timely way by Mr Aryiku who was the person responsible for making the necessary applications. In 2004 the deadline was the 29th of February and applications for only 4 staff had been submitted by 30th April. Further requests for checks were submitted in August/September 2004. No PoVA or enhanced applications were made and some of the applications were in the wrong coloured ink and so they were returned. It must be the case that Mr Aryiku took on the task without any knowledge of the procedure or he was badly advised. His suggestion in evidence that he would ask the unchecked staff to give an undertaking that they had no convictions displays a certain naivety.64. By the date of the Notice all the staff had been subject to the necessary checks.Regulation 20Restrictions on acting for service user20.--(1) Subject to paragraph (2), the registered person shall not pay money belonging to any service user into a bank account unless--(a) the account is in the name of the service user, or any of the service users, to which the money belongs; and(b) the account is not used by the registered person in connection with the carrying on or management of the care home.Matters arising under this heading are dealt with under regulation 17Regulation 22 (1) (2) (5) and (6)Complaints22.--(1) The registered person shall establish a procedure (``the complaints procedure'') for considering complaints made to the registered person by a service user or person acting on the service user's behalf.(2) The complaints procedure shall be appropriate to the needs of service users.(5) The registered person shall supply a written copy of the complaints procedure to every service user and to any person acting on behalf of a service user if that person so requests.(6) Where a written copy of the complaints procedure is to be supplied in accordance with paragraph (5) to a person who is blind or whose vision is impaired, the registered person shall so far as it is practicable to do so supply, in addition to the written copy, a copy of the complaints procedure in a form which is suitable for that person.65. Following an announced Inspection on 11 and 12.02.2003, a requirement was made that the Home's complaints procedures to be amalgamated into one document from February 2003 to December 2005 and records of all complaints to be recorded in the complaints record book. This was finally complied with by June 2006. Regulation 23 (2)Fitness of premises23. (2) The registered person shall having regard to the number and needs of the service users ensure that -(b) the premises of the to be used as the care home are of sound construction and kept in a good state of repair externally and internally;(c) equipment provided at the care home for use by service users or persons who work in the care home is maintained in good working order;(d) all parts of the care home are kept clean and reasonably decorated(e) adequate private and communal accommodation is provided for service users;(h) the communal space provided for service users is suitable for the provision of social, cultural and religious activities appropriate to the circumstances of service users;(i) suitable facilities are provided for service users to meet visitors in communal accommodation, and in private accommodation which is separate from the service user's own private rooms;(j) there are provided at appropriate places in the premises sufficient numbers of lavatories, and of wash-basins, baths and showers fitted with a hot and cold water supply;(n) suitable adaptations are made, and such support and such support, equipment and facilities, including passenger lifts, as may be required are provided, for service users who are old, infirm or physically disabled;(o) external grounds which are suitable for, and safe for use by service users are provided and appropriately maintained;(p) ventilation, heating and lighting suitable for service users is provided in all parts of the care home which are used by service users.66. On 13 March 1998 Mr Williams made an unannounced visit to Bridge House. He noted a number of matters including that the hot water and hot surfaces were not being effectively managed, the water was excessively hot as was the temperature of the radiators. A number of requirements were made to rectify the situation. Mr Williams's next visit to Bridge House was on 23 June 2006 to monitor progress of outstanding requirements. The environment was still quite poor and radiators were left uncovered or unprotected and therefore posed a scald or burn risk. Mr Williams took a series of photos during this and subsequent inspections which were put into evidence. The photos taken on 23 June showed unprotected radiators in the bedrooms and the ground floor toilet, the women's shower with a broken curtain rail, and no shower curtain in place, (the water temperature of the shower was 47 degrees). The male shower had a shabby curtain and an unprotected radiator that was at 48.7 degrees. The bath water was too hot at 58 degrees and the tiling was in poor condition.67. On another visit on 21 February 2007 a second series of photos were taken. On this occasion they showed the poor condition of the men's shower tray and a tile missing and the poor condition of the bath side panel and the door frame. 68. The final series was taken on 25 June 2007. These included a toilet on the ground floor for the use of staff, residents and visitors that was in a very poor condition and not hygienic. The toilet pan appears to be encrusted with black marks. The first floor male bathroom was in a poor state of repair and required redecoration.69. All the radiators were now fitted with covers as required but the design was such as to make it impossible to adjust the temperature of individual radiators. Temperature adjustments could only be made by the central floor thermostats or the thermostat on the boiler. The Inspectors commented that ``Once again the home has dealt with a requirement but in an incomplete manner and not in a fully effective way.''70. During the inspection of 25 June 2007 the Inspectors made inquiries as to the arrangements for dealing with maintenance and repair matters. The maintenance book was not seen by the Inspectors at this inspection but in February the same year, the book inspected had only three items recorded in it. The inspection disclosed eleven separate items that required action. None of these items required very much to remedy the deficiencies e g lights not working, a missing sink plug. Mr Tekman said in evidence that he had carried out a number of works within the Home including the installation of water pumps. He also said he had decided to advertise for somebody to do maintenance work on the Home.A table of maintenance issues is set out at Annexe B.Regulation 23(4)Fitness of premises23 (4) Subject to paragraph (4A) the registered person shall after consultation with the fire authority--(a) take adequate precautions against the risk of fire, including the provision of suitable fire equipment;(b) provide adequate means of escape;(c) make adequate arrangements--(i) for detecting, containing and extinguishing fires;(ii) for giving warnings of fires;(iii) for the evacuation, in the event of fire, of all persons in the care home and safe placement of service users;(iv) for the maintenance of all fire equipment; and(v) for reviewing fire precautions, and testing fire equipment, at suitable intervals;(d) make arrangements for persons working at the care home to receive suitable training in fire prevention; and(e) to ensure, by means of fire drills and practices at suitable intervals, that the persons working at the care home and, so far as practicable, service users, are aware of the procedure to be followed in case of fire, including the procedure for saving life.71. In January 2004 an inspection of Bridge House was carried out by an officer of the London Fire & Emergency Planning Authority. The findings of the inspection were that Bridge House contravened the requirements of the applicable regulations and specified steps were required to be taken; carry out fire risk assessments, carry out maintenance of emergency lighting, staff fire safety training, additional protection to the room accessed by a single staircase and all fire doors be fitted with self closers. These requirements had not been complied with by March 2004 and the Inspectorate was notified by the LFEPA.72. In January 2005, the LFEPA issued a further notice requiring that a series of tests be carried out and that fully self closing doors be fitted by a specified date and that if not done, then formal enforcement action will be considered. The necessary action was finally taken but only after a considerable time during which the necessary protection from the risk of fire and its consequences was not in place.Regulation 24(1) (3)Quality of services24.--(1) The registered person shall establish and maintain a system for evaluating the quality of the services provided at the care home.(2) At the request of the Commission, the registered person shall supply to it a report, based upon the system referred to in paragraph (1).(3) The report referred to in paragraph (2) shall be supplied to the Commission within one month of the receipt by the care home of the request referred to in that paragraph , and in the form and manner required by the Commission.73. The system put in place for evaluating the quality of the services provided was by the use of questionnaires. The forms produced for the residents and others varied in quality. Mr Halliwell's evidence was that the form at 4.1288 ``is dated and useful but that it would have been better to use a consistent format.'' Regulation 25Financial position25.--(1) The registered provider shall carry on the care home in such manner as is likely to ensure that the care home will be financially viable for the purpose of achieving the aims and objectives set out in the statement of purpose.(2) The registered person shall, if the Commission so requests, provide the Commission with such information and documents as it may require for the purpose of considering the financial viability of the care home, including--(a) the annual accounts of the care home certified by an accountant;(3) The registered person shall--(a) ensure that adequate accounts are maintained in respect of the care home and kept up to date;(b) ensure that the accounts give details of the running costs of the care home, including rent, payments under a mortgage and expenditure on food, heating and salaries and wages of staff; and(c) supply a copy of the accounts to the Commission at its request.74. The requirement to provide the audited accounts of the company by 5.8.05 was set on 30.4.05. The accounts were not provided until 25.6.07 when they were produced on request at an Inspection. The Appellants' state that the accounts are always available (1.111) but offer no explanation as to why the requirement was not complied with for two years. It is self evident that the Inspectorate should be kept informed of the financial position of the company. The Appellants assertion that the ``Lead Inspector is being rather pedantic and disingenuous'' does them no credit.Regulation 26Visits by registered provider26.--(1) Where the registered provider is an individual, but not in day to day charge of the care home, he shall visit the care home in accordance with this regulation.(2) Where the registered provider is an organisation or partnership, the care home shall be visited in accordance with this regulation by--(a) the responsible individual or one of the partners, as the case may be;(b) another of the directors or other persons responsible for the management of the organisation or partnership; or(c) an employee of the organisation or the partnership who is not directly concerned with the conduct of the care home.(3) Visits under paragraph (1) or (2) shall take place at least once a month and shall be unannounced.(4) The person carrying out the visit shall--(a) interview, with their consent and in private, such of the service users and their representatives and persons working at the care home as appears necessary in order to form an opinion of the standard of care provided in the care home;(b) inspect the premises of the care home, its record of events and records of any complaints; and(c) prepare a written report on the conduct of the care home.(5) The registered provider shall supply a copy of the report required to be made under paragraph (4)(c) to--(a) the Commission;(b) the registered manager; and(c) in the case of a visit under paragraph (2)--(i) where the registered provider is an organisation, to each of the directors or other persons responsible for the management of the organisation; and(ii) where the registered provider is a partnership, to each of the partners.75. The visits in this case were undertaken by Mr Aryiku who gave evidence on this topic. He acknowledged the possible conflict of interest but said that the Appellants had decided not to appoint an independent person to carry out this function. Although there was a requirement for the reports to be provided to CSCI from September 2003, the Appellants asserted that the regulation did not apply in their case as they visited the home daily. Reports have been provided since January 2007 and we reviewed them during the hearing. Their content is limited and of little value. 76. In their closing submissions the Appellants, under the heading of Regulation 26, acknowledge a possible conflict of interest and that ``a solution may be to engage the services of an unconnected individual to undertake the monthly visits and make the appropriate reports.'' No good reason is given why this solution was not put into effect in 2003.Regulation 37Notification of death, illness and other events37.--(1) The registered person shall give notice to the Commission without delay of the occurrence of--(a) the death of any service user, including the circumstances of his death;(b) the outbreak in the care home of any infectious disease which in the opinion of any registered medical practitioner attending persons in the care home is sufficiently serious to be so notified;(c) any serious injury to a service user;(d) serious illness of a service user at a care home at which nursing is not provided;(e) any event in the care home which adversely affects the well-being or safety of any service user;(f) any theft, burglary or accident in the care home;(g) any allegation of misconduct by the registered person or any person who works at the care home.(2) Any notification made in accordance with this regulation which is given orally shall be confirmed in writing.77. The Respondent has in the course of inspections identified a number of failures to report incidents and these have been recorded in the Inspection reports, examples being the sexual harassment of one service user by another (2.633), a fractured ankle (2.629) and a drunken service user (3.687).78. The Appellants only identify one matter which concerned the resident DF which it is said was reported and recorded in the incident book. Mr Tekman in evidence accepted that other matters may not have been recorded because it would have been assumed that one of the other two Appellants' would have recorded the event. In their response to the proposal to cancel their registration it is stated that ``We believe Bridge House complied with this regulation which refers to events and incidents `in the Care Home'. All such events and incidents if and when they occur are or will be reported to the Commission.''79. No explanation is given as to why the above matters identified were apparently not recorded.Additional evidence80. In addition to the oral and documentary evidence put before us, on 20 July 2007 we received statements from six persons put forward as character witnesses in support of the Appellants' appeal. All had professional involvement with Bridge House to a varying degree. We invited the Appellants to call these individuals to give live evidence as their statements indicated that they appeared to be able to give evidence as to some of the issues in this appeal. This was not done as we were told they were unavailable to attend. We took their statements into account bearing in mind that no cross examination was possible.Findings81. In reaching our findings we have given separate consideration to the conduct of each Appellant. However, it is clear from the evidence that Bridge House was a joint enterprise and managed jointly by the three Appellants. There has been no suggestion that any one of the three has any greater or lesser responsibility than the others for the management of the Home.82. We find the Appellants to have been in breach of each of the regulations set out above. The responsibility for the breaches lies with the Appellants and their persistent failures to comply with the regulations and to ignore and reject the assistance and advice offered and provided to them by the Inspectorate. The effect of this attitude is to adversely affect the quality of the care provided to the residents of Bridge House over a period of years.Accordingly, our unanimous decision is to confirm the decision of the Commission for Social Care Inspection to cancel the registration ofMr George AryikuMr Samuel Laud Ashiteyand Mr Chetin Mehmet Tekman: APPEAL DISMISSEDMr A Wadling(Nominated Chairman)Ms J Funnell Ms J Cross3 October 2007Annex ATABLE AOUTSTANDING REQUIREMENTS14 of the 19 outstanding requirements on 25.6.2007 were outstanding from the Inspection of 12.2.2003TABLE BMAINTENANCE ISSUES(See attached Annex B)Care Standards Tribunal35 Annex BBRIDGE HOUSE TABLE OF MAINTENANCE ISSUESPlease note that the when the date completed says ``by'' a date, that is the is the earliest inspection report in which the requirement has been completed

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