Walsh & Anor v Commission for Social Care Inspection, Court of Appeal, February 16, 2009,  UKFTT 18 (HESC)
|Resolution Date:||February 16, 2009|
|Actores:||Walsh & Anor v Commission for Social Care Inspection|
 UKFTT 18 (HESC)
Walsh & Anor v Commission for Social Care Inspection  UKFTT 18 (HESC) (16 February 2009)
Schedule 1 cases: Establishments and Agencies - Cancellation of registration (proprietor/manager)
In the Health Education and Social Care Chamber
Decision of the First Tier Tribunal Care Standards
Jeremy Walsh and Sally Anne Roberts
Commission for Social Care Inspection
Mrs Meleri Tudur (Chairman)
Mr James Churchill
Mrs Helen Hyland
Sitting at the Magistrates Court, Cirencester between 26 and 30 January 2009.
The Appellants were represented by Mr Peter Barrie of Counsel, instructed by Rickerbys, Solicitors, Cheltenham.
The Respondents were represented by Ms Kate Brunner of Counsel, instructed by Anthony Collins Solicitors LLP, Birmingham.
The Tribunal heard oral evidence from:-
For the Respondents:
Mr D Jones
Mrs J Patrick
Mr B Brown
Ms S Goldsworthy
Mr D Francis
For the Appellant:
Mr P Jackson
Mrs J Vials,
Mrs M G Tiley
Mr H H Ghalamkari
Mrs L McNee
Ms L Nkomonde
Mrs S Roberts
The Tribunal also considered a substantial amount of written material presented by the parties.
1. The Law
1.1 Section 14 of The Care Standards Act 2000 provides that:
``(1) The registration authority may at any time cancel the registration of a person in respect of an establishment or agency -
(c) On the ground that the establishment or agency is being or has at any time been carried on otherwise than in accordance with the relevant requirements;
(d) On any ground specified by regulations.
(3) In this section ``relevant requirements'' means:-
(a) any requirements or conditions imposed by or under this Part; and
(b) any requirements of any other enactment which appear to the registration authority to be relevant''
1.2 Section 22 of the Care Standards Act 2000 provides that:
``(1) Regulations may impose in relation to establishments and agencies any requirements which the appropriate Minister thinks fit for the purposes of this Part and may in particular make any provision such as is mentioned in subsection (2), (7) or (8).''
1.3 The Care Homes Regulations 2001 (``the Regulations'') came into force on the 1 April 2002 and extend to England only. They apply to care homes that are not specifically excluded from the provisions of the Regulations.
2. Preliminary Matters
2.1 On the 28 May 2008, the Deputy President of the Tribunal made a Restricted Reporting Order under Regulation 18(1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 prohibiting the publication (including by electronic means) in a written publication available to the public or in the inclusion in a relevant programme for reception in England and Wales of any matter likely to lead members of the public to identify any service users. At the conclusion of the hearing, the Tribunal confirmed that the Restricted Reporting Order should remain in force until further order, pursuant to Rule 14 (1)(b) of The Tribunal Procedure (First-Tier Tribunal) (Health Education and Social Care Chamber) Rules 2008 which came into effect on the 3 November 2008, replacing the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002.
2.2 Applications were made at the hearing for submission of late evidence. Ms Brunner applied for leave to introduce a new witness, namely Mr David Francis, Business Relationship Manager for CSCI, who was responsible for the final decision to pursue cancellation of the Appellants' registration. Mr Barrie opposed the application, but accepted that in the light of queries he had Mr Francis's evidence was likely to be relevant to the appeal. The Tribunal concluded that in the light of issues raised by Mr Barrie at the start of the hearing, and in order for the Tribunal to consider when making its decision, the best available evidence, it was appropriate that the application should be allowed.
2.3 Mr Barrie made an application in respect of a document compiled by Mrs Roberts from inspection reports by CSCI across the group of homes falling into Blanchworth Care Homes Limited group. Mrs Roberts is one of the Directors of Blanchworth Care Homes Limited and the company has 15 homes, owned by various combinations of individuals within the company, but falling under the umbrella of the group and administered centrally from the head office at The Cider Mill, Blanchworth. The Tribunal refused to allow the document to be put to Mr Francis in cross examination when he had not had an opportunity to read it, but agreed that it could be introduced by Mrs Roberts in her evidence, once it had been disclosed to the Respondents.
2.4 Further written evidence, omitted from the bundle, but referred to within other documents was inserted, namely three medication administration records (MAR) (referred to in the Notice of Proposal but not included in the Tribunal bundle).
2.5 Mr Barrie requested the inclusion of two emails from two of the service users' GPs, obtained during the hearing in response to the enquiries made by the Appellants in respect of the correct administration of medication. Ms Brunner objected to the application, on the basis that the Appellants' instructions to the authors had not been disclosed. The Tribunal allowed the application indicating that it would give to the evidence such weight as it considered appropriate.
2.6 At the start of the hearing, it was submitted on behalf of the Appellants that they had never sought to contest the alleged breaches, but were opposing the cancellation on the basis that the incidents set out in the Notice of Proposal were not sufficiently serious to warrant closure of the home. At the Tribunal's request, the Appellants completed the Scott Schedule, indicating that all eight breaches of the Regulations alleged in 2005 were admitted; all five breaches identified in February 2006 were admitted, but it was submitted that the storage of prescription medicine had been dealt with by the Action Plan; three May 2006 allegations were admitted but one was submitted to have been dealt with in the Action Plan; all six allegations made in May 2007 were admitted, although it was submitted that it was the deployment of staff rather than their number that was in issue; 12 of 14 allegations made following the 12-14 November 2007 inspection were admitted. It was submitted that one of the remaining two allegations was denied because the home had been following the appropriate guidance at the time and the second related to the same issue of staff deployment (rather than numbers) as in May 2007; 11 of 12 allegations made following the pharmacist inspection of the 21 November 2007 were admitted, and it was submitted that service users being asleep in the dining room was not a failing; two alleged breaches of regulations in January 2008 were admitted; 12 alleged breaches in May 2008 were admitted and 11 of 12 alleged breaches in December 2008 were also admitted with a factual dispute on the remaining one, with reference to the actual time of administration of medication. In response to the latter, Ms Brunner confirmed that there was a half hour difference between the two times recorded by the Pharmacy Inspector and the document produced subsequent to the inspection by the Appellants, but that the principle of late administration of medicine remained even if the fact of the actual timing was incorrect.
3.1 Gloucester Care Centre was first registered under the Registered Homes Act 1984, on the 29 January 1999, with Mrs Sally Anne Manby Roberts named as the Registered Provider. In 2002, the home was re-registered with Mrs Roberts and Mr Jeremy Walsh (``the Appellants'') as partners and identified as the Registered Provider. Mr Walsh has not taken any active part in the day to day running of the home and Mrs Roberts was identified on the certificate as the Responsible Individual.
3.2 Ms Ntokozo Lorraine Nkomonde has been the Registered Manager at the home since January 2007, and had been the Acting Manager since July 2006.
3.3 The home is a registered care home providing nursing care for 40 persons over the age of 65. 28 beds are registered for persons with dementia and 12 for persons with sensory impairment (SI). The certificate includes conditions for three additional named service users under the category of SI under the age of 65 and an additional named service user under the category of dementia under the age of 65 years.
3.4 The home was first rated as a ``poor'' service in February 2006, and although it received an ``adequate'' rating following an inspection in June 2006, has attained ``poor'' ratings since then. The official rating was suspended following the confirmation of the Cancellation Notice in February 2008.
3.5 Following an inspection in November 2007, CSCI made a referral to Gloucestershire County Council under the safeguarding and protection of vulnerable adults procedure and consideration was given to the making of an immediate application to the magistrates for closure of the home under Section 20 of the Care Standards Act 2000.
3.6 On the 19 November 2007, Mrs Roberts gave an undertaking to CSCI that she would not admit any further persons into the home until 4 December 2007; that she would co-operate fully with Gloucestershire County Council and the Primary Care Trust to ensure the safety and wellbeing of people currently living at the home and ensure that the immediate requirements made in respect of the home on the 13 November 2007 were fully addressed.
3.7 At the date of the hearing, there were 27 service users: 8 SI and 19 dementia.
4. The Cancellation Decision
4.1 The Notice of Proposal to cancel Mr Walsh and Mrs Roberts's registration relied on the grounds set out in Section 14(1)(c) of the Care Standards Act 2000, that the home is being or...
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