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

1

Tekman & Ors v Commission for Social Care Inspection [2006] EWCST 988(EA) (01 October 2007)

Chetin Mehmet Tekman

Samuel Laud Ashitey

George 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 Funnell

Decision

Heard on 9 to 13 July and 30 July to 3 August 2007.

Representation

The Appellants appeared in person

For the Respondent: Ms Sullivan of counsel

Appeal

  1. 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 Matters

  2. 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.

    Representation

  4. 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 Hearing

  6. 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' case

  7. 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 case

  8. 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.

    Evidence

  9. 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 proof

  11. 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.

    Introduction

  12. 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 Respondent

    Regulations 4 and 5

    Statement of purpose

  13. --(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 guide

  14. --(1) The registered person shall produce a written guide to the care home (in these

    Regulations 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.

  15. 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.

  16. 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 7

    Fitness of registered provider

  17. --(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...

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