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England and Wales Care Standards Tribunal
You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Joyce v National Care Standards Commission [2003] EWCST 190(NC) (6 January 2004)
URL: http://www.bailii.org/ew/cases/EWCST/2004/190(NC).html
Cite as: [2003] EWCST 190(NC)

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    Barbara Ellen Joyce
    v
    National Care Standards Commission
    [2003] 0190.NC
    Mr Laurence J Bennett (Chairman)
    Ms Bridget Graham
    Mr Michael Jobbins
    17/18/19/20th November 2003
    The Appeal
  1. Mrs Joyce appeals under Section 21 of the Care Standards Act 2000 (the Act) against the decision of the National Care Standards Commission (NCSC) to cancel her registration in respect of Ashley Intermediate Care Home (AICH), 2 Weld Road, Blundellsands, Crosby, Liverpool on the ground set out in Section 14(1)(c) of the Act; that the establishment has been carried on otherwise than in accordance with the relevant requirements.

  2. A Notice of Cancellation of Registration dated 30th May 2003 issued by NCSC states that the Appellant is in breach of Regulations 8(1)(a), 8(2)(a) and 8(2)(b) of the Care Home Regulations 2001 (the Regulations) (which are in error in the Notice stated to be dated 2002) in that she has failed to appoint an individual to manage the Care Home.

  3. The Notice specifies "The home has been without a registered manager since 25th January 2002. Since that time there have been three individuals acting in the capacity of manager of the home. None of these individuals have been approved as a fit person to manage the Home, nor have applications for registration been submitted in respect of them.

    4. "By letters dated 7th January 2003 and 15th January 2003 you were requested to provide details of any proposed manager. You failed to respond to those letters. On 7th February 2003 a further letter was sent, giving one month in which to provide the NCSC with an application and fee for a manager. On 14th April 2003 such an application was received. This application post-dated the Notice of Proposal to Cancel your registration."
  4. A Statement of Grounds of Appeal submitted on behalf of the Appellant sets out that "The Commission is wrong in fact and law alleging there has been a breach of CHR 8(1). There has throughout been an appointed manager since 1.4.02. Allegations before this date are not evidence of breach of the CHR. The allegation that there is non-compliance unless a manager is both suitable and registered is simply incorrect."

  5. Regarding Regulation 8(2) the Grounds of Appeal sets out that "It is accepted there was a failure to notify the Commission of the appointments – this was through lack of knowledge and was not deliberate (prior to the CSA there was no registration manager/matrons of nursing Homes). The CST is invited to note that no steps were taken by the Commission to notify this requirement until 7.1.03 (no particular point was made of it during the course of the annual inspection in October 2002)."

  6. The Grounds of Appeal continue "The discretionary factors in this case mean that the appeal should be allowed. The actual proved breaches of the CSR are not serious enough to justify cancellation. The Commission's evidence failed to attempt a balanced description of the options. It failed to deal with the future. It failed to assess the abilities and competence of the manager who had by then been appointed."

    7. Restricted Reporting Order
  7. On 16th September 2003, His Honour Judge David Pearl, President of the Tribunal made a Restricted Reporting Order "Prohibiting the publication (including by electronic means) in a written publication available to the public, or 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 user. In order to prevent identification, the Appellant will be designated by the initial 'A'. "

  8. At the commencement of the hearing on the application of Counsel for the Appellant, we made a Restricting Reporting Order in similar terms to that set out in 7, save as regards the identification of the Appellant by the letter 'A,' to continue in force until 28 days after the sending of the Tribunal's decision.

  9. We did not find continuing need for greater curtailment of the requirement for openness in these proceedings. We concluded that our Order gave suitable protection for service users.

    10. The Hearing
  10. At the hearing the Appellant was represented by Mr Roger McCarthy QC instructed by Messrs Cuff Roberts Solicitors, Liverpool. The Respondent was represented by Mr Peter Anderson of Counsel instructed by Messrs Hill Dickinson Solicitors, Liverpool.

    11. The Law
  11. (i) Section 14(1) of the Act provides that "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."

    12. (ii) Section 14(1)(3) defines relevant requirements as "(a) any requirements or conditions by or under this Part; and (b) the requirements of any other enactment which appear to the registration authority to be relevant."
    (iii) Section 11 of the Act imposes an obligation upon "Any person who carries on or manages an establishment or agency" to be registered and contains provision for summary conviction in default.
  12. (i) Paragraph 8(1)(a) of the Regulations states that "The registered provider shall appoint an individual to manage the care home where there is no registered manager in respect of the care home" and 8(1)(b)(iii) "the registered provider – is not, or does not intend to be in full-time day-to-day charge of the care home."

    13. (ii) Paragraph 8(2) of the Regulations provides that "Where the registered provider appoints a person to manage the care home he shall forthwith give notice to the Commission of – (a) the name of the person so appointed; and (b) the date on which the appointment is to take effect.
  13. (i) During the hearing Counsel for both parties requested that the Tribunal give their provisional view regarding the requirement upon the registered provider arising from paragraph 8(1) against the background that it was not contended that the Appellant, the registered provider, at any time intended herself to be in full-time day-to-day charge.

    14. (ii) We indicated that we held the provisional view that in such circumstances paragraph 8(1) could not be satisfied by a registered provider unless an individual who is a manager registered in compliance with Section 11 of the Act is appointed.
    (iii) This issue was aired in the parties' closing submissions.
    (iv) We confirm our provisional view:
  14. Section 21(3) of the Act states that "On an appeal against the decision of the Registration Authority the Tribunal may confirm the decision or direct that it shall not have effect." Section 21(5)(c) states that "The Tribunal shall also have power on an appeal against a decision or order – to direct that any such condition as it thinks fit shall have effect in respect of the establishment or agency."

  15. We accept Mr McCarthy's submission that ours (and NCSC's decisions) must be consistent with the requirements of the Human Rights Act. In particular that Articles 6, 8 and Article 1 of the First Protocol of the European Convention on Human Rights should be taken into account. We agree that our decision must "fulfil the requirement of proportionality and necessity."

  16. The burden of proof lies upon the Respondent to show on a balance of probabilities that their decision to cancel registration is correct and proportionate in the circumstances. Mr McCarthy submitted that "the standard of proof is a high standard of probability because the consequences of cancellation are very serious."

    17. Admissions
  17. Mr McCarthy's written closing argument for Mrs Joyce contains at paragraph 18 "Therefore even though it is admitted that the managers have been managing without being registered, this is not a 14(1)(c) breach in relation to the provider's registration. This is a plain gap in the CSA. Even though it is probably unintentional, the CST cannot fill this gap by the exercise of discretion."

  18. However, in the light of our conclusions as to the requirement upon the registered provider arising from paragraph 8(1) we conclude that this is a breach of requirements falling within paragraph 14(1)(c) of the Act.

  19. The closing argument also repeats the admission set out in the grounds of appeal referred to in paragraph 5 above. It does so in these terms:

    20. "Has the NCSC proved a breach of S14.(1)(c) CSA?
    Yes. It is admitted that regulation CHR 8(2) of the Care Homes Regulations has been breached. The appellant has failed on 3 occasions to forthwith notify the NCSC of the identity of the appointed manager. The breaches are Mary O'Neill, Joanne Beasley, Rachel Ritson, Nicola Perrett.
    "Since it is agreed that there is no formal requirement as to how notification is to be given, it is accepted that the NCSC was notified of Beasley, Ritson and Perrett (but not forthwith)."
  20. Following our determination of the requirements for notification in the Regulations, we cannot accept this admission. As the Appellant was in breach of paragraph 8(1), paragraph 8(2) could not operate. Mr McCarthy's submissions at 13(iii) above although to demonstrate the reverse suggest the effect of our conclusion. Paragraph 8(2) was not breached as a manager within the terms of paragraph 8(1) had not been appointed.

  21. As "a failure to notify" and/or a failure to "forthwith notify" has been admitted, it would appear that there has been a breach of Section 14(1)(c) of the Act arising from the failure to observe the requirements set out in paragraphs 38 and 39 of the Regulations recited above. This was not addressed in the Notice of Cancellation issued by the NCSC or Mr Jefferson's decision of 30th May 2003. Mr Anderson did not make this point at the hearing. We do not consider that it is open to us to make a finding of such breach or to take the admitted failures into account save in the exercise of discretion consequent upon an established breach of requirements.

  22. We are not surprised that the parties may hold a different view of their obligations. The Regulations are not easy to follow and require considerable re-reading and referencing. In our view they are not well drafted or "user-friendly" and in many places obscure.

    23. The Facts
  23. Following a Representations Hearing after a Notice of Proposal to Cancel Registration was issued on 20th March 2002, Mr Alan Jefferson, Director-North West Region NCSC concluded that the grounds cited in the Notice are proved. In his decision dated 30th May 2003 he set out his reasons not to uphold the Appellant's representations and to give effect to the Notice of Proposal to cancel.

  24. In his decision Mr Jefferson recorded that "The evidence submitted by the NCSC identifies a number of matters that, it is argued, together suggest that the absence of a registered manager has had a detrimental impact on the day-to-day operation of the Home." He noted lack of progress in addressing concerns arising from the announced inspection on 30th October 2002 by the time of the unannounced inspection on 5th May 2003. Although he noted that Mrs Joyce mentioned delays by the NCSC in issuing reports, he referred to her responsibility "to take proactive measures to ensure NMS are met." He expressed concern that comments by and on behalf of Mrs Joyce suggested that "She and her staff lack the ability to produce an action plan without significant assistance from the NCSC. Had there been a suitable registered manager in post at the time it ought to have been possible to submit an acceptable and comprehensive action plan to the NCSC in a timely manner."

  25. Mr Jefferson "further noted that Mrs Joyce has failed to comply with the requirements of Regulation 26 of the Care Homes Regulations 2002 and has indicated that until it was pointed out to her she was not even aware of this statutory obligation placed on her as registered provider." He "Also noted that the role (if any) played by Mrs Higgins, the manager of Ashley Manor in the management of Ashley Intermediate Care Home is unclear and that Mrs Joyce has failed to properly give account of this to the NCSC. Accordingly, taking all these additional factors into account I accept that the absence of a registered manager for over 12 months has had a significantly detrimental effect on the operation of the Home and in Mrs Joyce's compliance with the statutory obligations of registration."

  26. During the period 1st April 2002 to the date of the hearing there have been four appointed managers of AICH.

  27. Mrs Beasley's current status was described by the parties in a joint statement: "Ms Joanne Beasley has applied for registration as manager of the Home (AICH). Her application has not yet been determined. Neither side can say whether it will be granted or refused." She applied on 14th April 2003. None of the other managers have applied for registration.

  28. Mrs Joyce is the Managing Director of the Ashley Care Group (ACG) which has around one hundred and twenty employees for its two Homes, AICH and Ashley Manor Nursing Home, which has seventy-five places. It holds an Investors in People Award and has dedicated staff training facilities in the grounds of Ashley Manor. The Homes were first registered in 1985. Ashley House closed in November 2001 and AICH opened in the premises in December 2001. All fifteen AICH places are contracted to South Sefton Primary Care Trust. Mrs Joyce stated that both the PCT and Local Authority are in discussions to expand their contracts for places in both Homes. AICH has satisfied PCT audits and contractual requirements.

  29. Mrs Joyce stated her aim to ensure the Homes are "A pleasant environment for service users to give them a nice life with a high standard of care." She employs permanent decorating staff to maintain environmental standards and an administrative staff of seven. She endeavours to ensure "a culture of assistance." This includes the practice of arranging for managers to be accompanied and supported in dealings with third parties, including NCSC inspectors and other visiting professionals, by experienced members of staff, particularly administrative staff or Mrs Debra Higgins, who is the registered manager of Ashley Manor and has supernumerary commitments to AICH, currently for six hours each week.

  30. Mrs Joyce emphasised that she has not run a Home during her eighteen years without an appointed manager. She considers the manager is "The most important in the Home, if the appointment is correct, everything falls into place." Manager appointees were given a probationary period, "to let them bed in." This may not be formal and was flexible but she, group management and the appointee understood that this was the case.

  31. The Homes are close to Mrs Joyce's residence. She stated that when not away, she visits both almost daily and actively participates in their administration. She notes matters that require attention, although she has not until recently compiled and forwarded formal reports.

  32. Mrs Joyce said that staff tend to stay with the Group to the benefit of the Homes as it is preferable to recruit from within. She explained that some advertisements for staff which appeared after the post had been filled were placed before that was the case. Mrs Beasley had been with them for some time and was appointed manager of the Care Home before the registration requirements. She was notified as manager on the original transfer form. She left because of family commitments. Mrs O'Neil who followed was known to Mrs Joyce as a "capable" registered manager of a local Care Home with Nursing that had recently closed. She left because the nature of intermediate Care with high turnover did not suit her. Later evidence was given that between January 2002 and May 2003 there were one hundred and eighty-seven residents.

  33. Mrs Joyce has known Mrs Ritson for some time although she had not worked with the Group during a long period prior to her appointment. Because of that knowledge it was not considered necessary to hold a formal interview. Mrs Joyce considers that both she and Mrs Perrett who she holds in high regard were "hounded out" of the manager's post having been "nobbled" by Mrs Garrity, the Inspecting Officer for AICH. She is pleased Mrs Beasley is now able to accept the position and her application for registration is being considered. She mentioned the strong demand for intermediate Care beds stating that hospitals are "jammed".

  34. Mrs Joyce said that "She didn't mind inspections, but wanted them to be fair." She considers that Mrs Garrity was neither fair nor helpful. She was particularly concerned about the effect of Mrs Garrity's visits on Mrs Higgins, the manager of Ashley Manor who had been with the Group for many years and is an extremely important member of staff. An incident on 29th May 2003 when Mrs Higgins' husband telephoned her about his wife's contact with Mrs Garrity was the final straw. She felt she was losing staff because of Mrs Garrity and could not allow any more to leave. She rang Mrs Carragher, the Locality Manager at the NCSC's Crosby Office who was at the time on holiday to make a formal complaint. Although she feels that someone more distant from Mrs Garrity than Mrs Carragher could better investigate the complaint, she accepts that Mrs Carragher is a fair-minded person.

  35. Mrs Joyce and her colleagues have looked at inspection reports available on the NCSC website of first and second year inspections of various Care Homes conducted by Mrs Garrity since 1st April 2002. She stated that the results of her research show that there was a long delay in submitting the reports quoting cases of between nine and twenty-three weeks. Requirements identified in the reports of first inspections range from sixteen (AICH) to thirty-three and in second inspections two (AICH) to thirty. AICH did well in a comparison of grades.

  36. Mrs Joyce said she had overlooked a letter of 7th January 2003 sent to her by Mrs Garrity regarding the need for appointment of a registered manager, but when she received the letter of 7th February 2003 which pointed out the power of the Registration Authority to cancel her own registration and mentioned the letter of 7th January 2003, she searched and found it. She said she was "horrified" she had overlooked it. She did not have in mind that an offence under Section 11 of the Care Standards Act might have occurred and did not recall that it was mentioned during an inspection.

  37. Mrs Barbara Murphy, the registered provider Mrs Joyce's daughter and a Director of ACG Limited has been involved in the Care Home Group since 1986. In 1998 she became a senior administrator, working with the home managers and assisting in administrative tasks including correspondence; she reports to Mrs Joyce. She stated that she accompanies staff during each inspection or visit by an interested party.

  38. Mrs Murphy is involved in staff recruitment and described the current market as difficult; remuneration elsewhere in the industry is such that few staff are interested in manager's positions; requirements are rigorous and include two year's experience, and soon an NVQ qualification. Good managers are thin on the ground. Two advertisements placed in a variety of local media produced very little response. The post currently attracts £26,000 p.a.

  39. Mrs Murphy confirmed the Group's policy that a potential manager of AICH should be given the opportunity to familiarise themselves with the post and its requirements before applying for registration.

  40. Mrs Murphy referred to Mrs Garrity. She considers that she is a strong personality and presents as aggressive, patronising and overbearing; her contact was hallmarked by rapid questioning and talking over answers. She was present with Mrs Ritson during most of Mrs Garrity's inspection on 31st October 2002. She said that after an inspection on 24th January Mrs Perrett, then "acting manager" contacted her in distress. The reason given for the inspection related to the availability of hot water at the Home.

  41. Mrs Murphy set out in her statement Group Policy for investigation of complaints. "In the statements of Pat Carragher, Julie Garrity, Lorraine Farrar and Trish Thomas, reference is made to a number of complaints which were referred to us about Ashley ICH up until February 2003 totalling, in all, four. Comment is made in these Witness Statements about the fact that the Manager for the time being of Ashley ICH appears not to have investigated these complaints. This is correct up to a point and is because, as a matter of policy, we have laid down that the investigation of a complaint at either Ashley Manor or Ashley ICH must be one by the management team, including at least one director. The investigation process does, of course, include the Manager of Ashley ICH, who is part of the management team for that purpose and who plays a part in the process and the conclusion."

  42. Mrs Murphy referred to complaints which were investigated by NCSC and upheld in a decision letter dated 4th March 2003 these include:

    43. An appeal was made by Mrs Joyce by letter dated 7th April 2003 but rejected by Mrs Garrity in a letter dated 14th April 2003.Some complaints on this and other occasions were found not substantiated by NCSC.

  43. Mrs Beverley Cannon an administrator with AGH Limited confirmed it was Group policy to support managers during inspections, not least to avoid misrepresentation of staff comments and because of the lack of consistency in NCSC's response. She referred to inaccuracies in their correspondence and explained reluctance to complain about NCSC personnel, particularly Mrs Garrity, because at the time it was uncertain how complaints would be handled.

  44. Mrs Cannon confirmed she was present at the Home on 24th January 2003. She noticed staff were in attendance in the lounge except for the few minutes when elsewhere on duties. She particularly recalled a Care assistant removing a tray and returning with water, juice and clean glasses.

  45. Ms Joanne Day, a senior nurse at Ashley Manor recounted an incident during an inspection when she was present with Mrs Pat Smith whilst Mrs Garrity reviewed her Care plans which she stated were "bob-on." Later in front of colleagues Mrs Garrity criticised Mrs Smith in a way that she felt was unfair and excessively humiliating. Mrs Garrity did not explain why she changed her mind and left Mrs Smith to "question her own ability as a nurse; she could not get a word in edgeways." Ms Day heard references to events at a Home where Mrs Smith previously worked.

  46. Mrs Higgins is the former Matron and current registered manager of Ashley Manor Care Home which originally provided intermediate places, now moved to Ashley House and incorporated in AICH. She is a registered general nurse who joined the Ashley Organisation in 1990; became Deputy Matron of Ashley Manor in 1996 and Matron in 1998. She has worked alongside Mrs Joyce and her two daughters throughout that time. She stated that she is not the manager of two Homes, although she assists in AICH as a supernumerary for six hours each week. She emphasised that the new Care Standards Act and Regulations have resulted in a substantial increase in the amount of paperwork and administration necessary. Both Homes have assistance from the Group administrative staff including the three Directors and Mrs Cannon.

  47. Mrs Higgins explained that the manager of AICH has a very busy schedule; there are three doctors' rounds each week and multi-disciplinary meetings regarding service users. The manager undertakes staff rotas, staff interviews and arrangements for staff to attend training. Mrs Higgins' help includes investigation of complaints. Her understanding of National Minimum Standards (NMS) is that there is no obligation on the manager alone to investigate a complaint and often another view is an advantage.

  48. Mrs Higgins recounted her direct experience of Mrs Garrity in her role as Inspecting Officer of Ashley Manor. She described her conduct as "appalling." After Mrs Garrity's visit on 29th May 2003 she telephoned the NCSC and requested information about its complaint procedure. She was very upset and on returning Home did not follow prearranged social plans with the result that her husband telephoned to offer her resignation. She said that she felt that she could no longer move forward and that there was no point in complaining about Mrs Garrity.

  49. Mrs Higgins said that on one occasion, an unannounced visit at Ashley Manor at 9.00am, when she asked Mrs Garrity why she was there, she answered "because I can." She said that the majority of the Matron's Forum, which she helped to create, had similar views of Mrs Garrity which they expressed at their meeting in June 2003.

  50. Mrs Higgins stated that the Homes comply with the NMS and the Group purchased Isoplan software accepted by others in the sphere to ensure documentation is in order. She confirmed she was present to support the manager during inspections of AICH including occasions when an unannounced inspection took place. She also assisted with paperwork and other appropriate tasks including response to inspections and preparation of action plans. Such work might be shared equally with the manager to assist her in accordance with the Group's policy of assistance.

  51. Mrs Higgins stated she was aware that there were still outstanding issues identified by the October 2002 inspection at the time of the April 2003 inspection; the report had only been received some three weeks before. Her experience indicated that this was not unusual; she has known reports to be outstanding for six months. The Commission had only recently commenced operations and the Group had yet to become aware of what could be expected. She spoke positively of the conduct of the recent inspection of AICH by Ms Trish Thomas. No recommendation, requirement or comment had been made regarding administrative or management arrangements or procedures.

  52. Mrs Perrett was acting manager of AICH from November 2002 until 7th March 2003. She stated that the title "Acting Manager" was used as she had not yet registered; it was intended that after a familiarisation period she should apply. Application forms were in fact requested from the Commission. She confirmed that she understood the requirements of a registered manager and was taking time to ensure that it was what she wanted. She described her previous management experience as lead nurse/deputy manager of the thirty-three bed EMI Unit at Ashley Manor under the overall management of Mrs Higgins. She said she was made aware of what needed to be done at AICH and described her duties as including interviewing staff, staff training arrangements and investigating complaints. She met with the local PCT at their offices to discuss the operation of the Home and was aware of weekly multi-disciplinary meetings regarding individual patients. Although she was not given a written job description she knew the requirements from her previous position.

  53. Mrs Perrett was present at AICH on Friday, 24th January 2003 when Mrs Garrity and Mrs Lorraine Farrar attended to investigate an anonymous complaint. She recalled problems with one of the hot water boilers. This was reported and repairs arranged. She did not believe that residents were unable to have a bath. Following the visit during which she considered she was put under "enormous pressure" which had a considerable effect upon her to the point that she became extremely upset, she began to question whether she should continue as manager at the risk of repetition.

  54. Mrs Perrett stated that without exception, Mrs Garrity presented in a negative and unsupporting way. She emphasised the depth of her responsibilities and her lack of experience to undertake them. She described Mrs Garrity's techniques and demeanour in terms similar to that of Mrs Day. Although she filed a statement of complaint with the Group, this was not submitted until later. In March 2003 she left to resume her former position at Ashley Manor.

  55. Mrs Carragher, Locality Manager at the NCSC's Crosby Office gave details of the advance notification given to Homes of the registered manager requirements and details of correspondence to Ashley Care Group containing reminders. She referred to the report following the inspection in October 2002, which also drew attention to this requirement. She acknowledged that Mrs Joyce requested the report, as originally it had not been received. It was resubmitted. The report identified sixteen statutory requirements, all of which should have been the subject of an Action Plan. This was received in February 2003; corrective Action Forms showed Mrs Higgins was to action the requirements. An inspection in March 2003 revealed that not all the October 2002 matters had been addressed.

  56. Mrs Carragher acknowledged that Homes can experience difficulties in recruitment, retention and training of staff and that some providers require managers to complete a probationary period before offering permanent appointment. She mentioned difficulties in processing applications for registration not least because of delays caused by the Criminal Records Bureau, delays of eleven months have previously occurred. She stated that the Office had developed a policy of allowing three months grace for appointment to manager's position and aim to process applications for registration also within three months.

  57. Mrs Carragher stated her view that the decision taken to cancel registration was correct and appropriate in the circumstances. Throughout the period there had not been notification of any manager nor save after the proposed notice of cancellation was served has an individual applied for registration. She said that a useful purpose of cancellation of registration would be to protect vulnerable people and provide a message for others.

  58. Mrs Carragher supervises a team of inspectors including Mrs Julie Garrity, the inspector allocated to AICH. Following receipt of the complaint from the Ashley Care Group, she instituted an investigation in accordance with NCSC procedures. She did not consider it necessary to remove Mrs Garrity from her role as the inspector for the Home as she is a capable member of the Team.

  59. Mrs Garrity, AICH's Inspecting Officer until May 2003 carried out several inspections at the Home; 30th October 2002 was the only announced inspection during which she found sixteen non-compliances with statutory requirements. The Action Request Forms ultimately provided in response were completed by Mrs Higgins. In April 2003 the Forms were put into Action Plan format. Mrs Higgins investigated and reported on a complaint referred to Mrs Joyce about AICH on 18th November 2002.

  60. Mrs Garrity advised that unannounced visits generally arose from complaints received about the Home. On one occasion a PACE interview might have been necessary, she considered it appropriate to act in this way. She acknowledged that this procedure could seem unfair but is a procedure followed by the Office. There is a requirement to make at least one announced and one unannounced visit each year.

  61. Mrs Garrity stated that Mrs Perrett was undecided about the post at the time of her discussion during the unannounced visit on 24th January 2003. She told her that Mrs Higgins made all the decisions regarding overall management of the Home. Mrs Garrity asked her whether she had given thought to applying to becoming registered manager and discussed the manager's role. Although constantly interrupted because of her duties, she and Mrs Farrar, who accompanied her, waited to continue.

  62. Mrs Garrity reported that an unannounced inspection in March 2003 identified nineteen statutory requirements including eleven identified in October 2002. She concluded that Mrs Perrett, still then Acting Manager had not seen the report; she did not play an active part in the inspection, having contacted Mrs Higgins when she arrived.

  63. Mrs Garrity does not accept that her conduct during visits was aggressive, intimidating or bullying or that she might have been the cause of Mrs Ritson or Mrs Perrett's resignation. She does not consider there is any difference in the way she and her colleagues, whom she has accompanied, conduct inspections. She does not accept that the majority of the Matrons' Forum might have cause to object. She confirmed that she is subject of an investigation regarding her conduct during inspections at AICH.

  64. Mrs Farrar, an Inspecting Officer at the NCSC Crosby Office stated that she continues to conduct inspections with Ms Garrity. She is aware of the complaints investigation and is concerned about the outcome as she is "a valued colleague." She commented upon an unannounced inspection on 24th January 2003 in which she accompanied Mrs Garrity. They arrived at around 3.30pm which in her experience was generally a good time; tea is usually around 4.30 or 5.00pm. There is no particularly good or less busy time for visits. The visit included conversations with Mrs Perrett, which extended over a period of about two hours. Mrs Perrett had duties which required her to leave the office and then resume. Topics included general management issues; she noted some eight to ten questions. Mrs Garrity asked questions regarding Mrs Perrett's experience of intermediate care and raised issues regarding Mrs Higgins' role in the management structure of the Home. The hot water supply was also discussed, leading to the issue by Mrs Garrity of a written request relating to the boiler. Although thanked for their help, moving from the original matter about which they had attended, to discussions relating to management may have been perceived as negative. Throughout the visit, Mrs Perrett appeared calm and helpful. Mrs Farrar refutes that she has acted in an unprofessional and disrespectful manner in dealings with Mrs Perrett.

  65. Mrs Trish Thomas is now AICH's Inspector and has carried out recent inspections. On 21st May 2003 she made an unannounced visit which resulted in one statutory requirement and two recommendations. A 10th July 2003 visit showed some requirements were being addressed but produced two new statutory requirements. The most recent visit in November 2003 led to one requirement and some outstanding recommendations relating to basic hygiene training for staff, delayed because of the theft of a training video. She acknowledged that a replacement has been ordered and is content with that explanation. She stated that she has guided staff in the preparation of Action Plans.

    66. Submissions
  66. Mr Anderson highlighted the Commission's contention that a lack of a registered manager has contributed to inefficiencies and non-compliance with requirements. Warnings had been given over a long period. In practice, management has been undertaken by Mrs Higgins, who is the registered manager of another Care Home, Ashley Manor. The Regulations prohibit a person being the registered manager of two Homes.

    67. In closing submissions Mr Anderson addressed the matter of discretion (his numbering and bundle references):-
    1) "The question is whether discretion should be exercised to cancel the registration.
    2) It is submitted that the following factors justify the cancellation in the exercise of discretion.
    3) The number of unregistered managers (4).
    4) The number of periods when an unregistered manager was in place (6).
    5) The length of the period to first application for registration (over 1 year).
    6) It is accepted that the length of each individual period is a factor for the Appellant as most of the periods were under 3 months. However the local policy of 3 months grace is not a rule of law, and the overall conduct needs to be looked at. A home cannot repeatedly avail itself of the period of grace as otherwise registration could be avoided for prolonged periods.
    7) Clear warnings, p159, 178, 179, 329.
    8) Much of the actual management was carried out by Ms Higgins, p147, 150, 216, 225, 176, 148.
    9) There have been some complaints, p338-345 and p348-352. No-one was bothered about getting hold of the inspection report. Ms Perrett acted as manager without even knowing there were statutory requirements outstanding. However R does not have to prove that the registration should be cancelled on quality grounds alone.
    10) The allegations against Ms Garrity are not probative:
    a) If true, Ms Ritson was bullied on 30/10/02 and was replaced on 25/11/02 by Ms Perrett who was bullied on 24/1/03 and replaced on 7/3/03. The bullying only explains a failure to register 30/10/02 to 25/11/02 and 24/1/03 to 7/3/03, i.e. about 10 weeks in total.
    b) If matters of substance occurred why no complaint was made until cancellation was underway.
    c) There is no evidence from Ms Ritson confirming that she left because of Ms Garrity.
    d) The allegations against Ms Garrity by Ms Perrett do not disclose objective misconduct. It was proper for Ms Garrity to ask about experience, and the weight of the responsibility. Tone of voice and body language cannot justify the lack of application to register.
    11) Overall the requirement for a home to be carried on with a registered manager is an important statutory requirement. A is in substantial breach.
    12) As an alternative to cancellation the tribunal can impose any condition it thinks fit. A possible condition would be a time limit for a registered manager to be put in place."
  67. Mr McCarthy's closing submissions included (his numbering and bundle references):-

  68. The registered person is entitled to keep their registration unless:

    69. (1) One or more grounds under section 14(1)(c) is proved.
    And
    (2) It is proved that in all the circumstances cancellation is appropriate.
    As the cast outline asserted the burden of proving 1 and 2 is on the NCSC.
  69. The standard of proof is a high standard of probability because the consequences of cancellation are very serious.

  70. The losers if the registration is cancelled are the present and future service users at the home, the Local Community and placing agencies who need beds in this specialist home, the staff and the appellant.

  71. The NCSC must prove that cancellation is appropriate at the time of the hearing. This is because the CST's role is to "re-make" the NCSC decision in the light of all the present information (the appeal is a re-hearing).

  72. A different emphasis should be given to past (as opposed to continuing) breaches of Section 14(1)(c) CSA.

  73. The core purpose of both the CSA and its predecessor the RHA was the protection of the welfare of service users (see the Parliamentary debates, White Paper and Lyons v East Sussex County Council 1987). It therefore follows that the core purpose of the cancellation decision must be to allow registration to continue unless the present or future service users welfare demands otherwise.

  74. The CSA cancellation process relates only to the home in question. Any decision does not impact on other homes. The NCSC is given no statutory permission to base a cancellation decision on the need to deter others. The CST is likewise given no role in making decisions which are intended to set an example.

  75. There is a process in the criminal law by which courts may impose deterrent sentences need to deter others. However, this process has no part in civil law nor in the process of CST appeals.

  76. The cancellation process is not a form of punishment. It is a mean of protecting service users and cancellation is a remedy of last resort.

  77. The decision on cancellation cannot be based on a wish to set a precedent (this is not a test case, tribunals cannot lawfully set precedents and the president made it clear on 18.9.03 that Mrs Joyce's appeal must not be prejudiced by the NCSC's wish to set a precedent.)

  78. Both the NCSC and the CST are public authorities within the meaning of Section 6(1) of the Human Rights Act. This means that their decisions must comply with Articles 6, 8 and Article 1 of the First Protocol. Their decisions must fulfil the requirement of proportionality and necessity

  79. To cancel to set an example would be a grossly disproportionate response to a proved breach. It would also be unlawful.

  80. The 21.12.01 letter was not sent to AICH. Nothing was done by the NCSC to emphasise the need for managerial registration. The 30.10.02 inspection report was not sent until after Mrs Joyce's phone call of 12.02.03.

  81. No enquiries were carried out by the NCSC to find out what the problem was. Despite the visits to the home in January, February and March 2003 Mrs Joyce was not asked for an explanation.

  82. Prior to the service of the notice of proposal of 20.03.03 Mrs Joyce had difficulties in retaining a manager (see the chronology entries for 00.05.02, 30.7.02, 1.9.02, 20.11.02, 25.11.02, 10.03.03.

  83. None of these difficulties were her fault. She took all appropriate steps to secure a manager. Two of the managers (RR and NP) were lost because of the inspector's behaviour (see resignations 20.11.02 and 10.3.03). JB decided to put her family first. M O'N decided to move to another job.

  84. The conclusions to be drawn from the inspections: -

    85. (1) The inspection of 30.10.02 does not on the NCSC evidence (or on the case which has been put) provide a case for cancellation.
    (2) The same is true for the inspection of 5.3.03.
    (3) The action plans ultimately received were appropriate.
    (4) As Mrs Joyce indicates in her second statement at 5:2.5-7.56 AICH did better than other homes selected at random.
    (5) The most recent inspection (10.7.03) produced a favourable report and BJ is happy with its performance. This report was after J Beasley had been working as manager for several months.
  85. The home is running well and meeting the service users needs. It is providing a good service. It meets with the approval of the PCT which audits the home. The CST is invited to accept NP's detailed evidence about the weekly involvement of the multi disciplinary team which monitors what is going on with all the service users. This is far and away the best demonstration of the quality of service provided by the home.

  86. The continued registration will be a great benefit to the service users, the PCT and the local community.

  87. ACG is on the evidence, a very competent organisation. It is well organised and fully staffed. Those who have given evidence have an impressive range of competence. Any queries about the ACG "team approach" are answered by the fact that it has stood the test of time. It has a good track record.

  88. The team approach has been in operation for many years. It is evident from the evidence that during the unsettled period between October 2002 and April 2003 the continued support offered to the managers of AICH was of commendable assertiveness. For example DH's explanation of the complaints procedure show that it is helpful to have a person involved who did not work at AICH. ACG has always had a team who opposed to inspections. There is nothing wrong in this, it is consistent with CSA framework and is of particular use in dealing with unannounced inspections.

  89. Appropriate plans have been made for the future management of AICH. If JB is not registered then there are 2 appropriate alternative candidates (one of whom has already been working as a CSA registered manager) – see the evidence of BM.

  90. Cancellation of registration is an extreme and draconian outcome. Concluding remarks on this outcome (and Miss Carragher's suggested reason as to why cancellation is appropriate) will be made at the same time as comments on Mrs Joyce and her evidence.

    91. Mr McCarthy submitted that any condition on registration should be "Clear, workable and just with a period of time identified."
    Tribunal's conclusions with reasons
  91. It is common ground that there has not been a registered manager at AICH at least until the date of hearing. That is a clear breach of requirements; see our findings at paragraphs 13, 18 and 20. There are consequences as set out in paragraph 21.

    92. Why did this situation arise?
  92. We have some doubt whether Mrs Joyce was conscious of the need for registration of a manager, she stated this was overlooked. We accept that the October 2002 report which specified this requirement did not arrive at the Group until February 2003. We are satisfied that when brought to her attention efforts were made to ask Mrs Perrett and Mrs Beasley to register.

  93. Mrs Joyce stated that staff appointed to the Manager's position should be allowed to bed-in. We accept from her evidence and that of the staff witnesses, for this reason she operated a probationary or acclimatisation period for the time it might take for the individual to decide whether the job was suitable for them. This was informal and might be described as "elastic." We accept whether formal or informal both new managers and employer understood that initially the post would be on a trial basis and registration was not expected until the manager was to be permanent. Mrs O'Neil and Mrs Ritson did not continue in post to that point.

    94. Were steps taken to find a registered manager?
  94. We are satisfied from the evidence given by Group staff that Mrs Joyce made reasonable efforts to recruit, advertise, appoint, supervise and support staff during their induction or probationary period, whether or not formal. We conclude from her priorities in appointment that she took care to choose individuals who she knew and thus whose capabilities were known.

  95. We conclude from the evidence of Mrs Joyce and her staff that the Group is actively and closely managed by senior staff and it is standard practice for Directors including Mrs Joyce to present in both Homes. We conclude that senior staff as a matter of practice and course ensured that AICH manager appointees were not left unassisted when familiarising and coping with management requirements.

    96. Was Mrs Higgins the Manager of AICH?
  96. Much was made of Mrs Higgins' involvement in both Homes. We accept the explanation that she has contracted supernumerary employment at AICH. The hours are precise, six hours. She is clearly a valued and senior member of the Care Group and has experience as the registered manager of Ashley Manor. We accept that it is to the benefit of service users that her additional resource and experience is brought to bear in assisting the management of AICH. We do not find as fact that she was running AICH. We accept hers and other staff's evidence that her assistance to managers both contracted on a formal supernumerary basis and informal, was a manifestation of the Group's corporate culture or teamwork. Another individual appointed to manage AICH was at the relevant times in post and paid as manager.

  97. We were not made aware by NCSC of any restriction that would prevent Mrs Higgins involvement to the extent that it occurred. This does not appear in NMS. A requirement to exclude her input to AICH would be unfounded and in our view against the interests of service users and the sharing and maintenance of good management practices within the Group. Correspondence on headed notepaper that includes the names of both Homes in the Group signed by Mrs Higgins as Matron is not determinative of management of AICH but could lead to confusion and this practice should cease.

    98. Why did managers leave?
  98. It is unfortunate that appointees to the manager's post have not remained. Reasons were given by Mrs Joyce and her witnesses. We accept that Mrs Beasley and Mrs O'Neil left for personal reasons and observe this supports the appropriateness of a probationary period.

  99. Much evidence was given by Mrs Joyce and her witnesses about Mrs Garrity's inspections of the Home and contact with management and administrative staff. There was consistency in their description of her attitude. An impression was given of an overbearing, intimidating and demanding individual who took a pedantic and rigorous view of her position. Reference was made to her repeated unannounced inspections and a lack of support and guidance from her. We note from Mrs Carragher and Mrs Farrar that she has the support of her colleagues who considered her a valuable member of the team.

  100. We have no comment on Mrs Garrity's strict right to carry out her designated role in a robust manner. We must reach a conclusion on the effect of her conduct on others. We conclude from the weight of evidence that incidents disturbing to staff took place and contributed to poor morale at AICH and within the Group. This was evident from the response to questions during the hearing by members of staff, particularly Mrs Higgins, who despite her seniority, long service and key role in the Group considered resignation. It may be that Mrs Garrity's actions were misinterpreted and taken out of proportion by staff but we accept it likely that they were so concerned that they became unwilling to stay in a position of responsibility where they would have exposure to continuing contact with her. Evidence indicates this affected their understanding of the manager's role.

  101. We find on a balance of probabilities that Mrs Garrity's conduct, especially as she was the representative of the local NCSC office and an example of how it carried out its duties, was an important factor in the lack of continuity of management at the Home, particularly affecting the retention of Mrs Ritson and Mrs Perrett.

  102. Following 73 and 76, we conclude that the appointees were at the time likely to be capable of becoming successful registered managers and there was no intention to avoid registration of a manager for AICH.

    103. Has the lack of a registered manager had a detrimental effect upon the running of AICH and the service provided to users?
  103. We have taken into account that the period under consideration is the initial period during which the Act Regulations and NMS have imposed requirements and norms. New routines and procedures have necessarily had to be established and good practice developed by all concerned.

  104. For that reason we are not able to sustain criticism of AICH's Action Plan drawn after the delayed report was received. We note the Home took steps to utilise industry standard software which they felt was appropriate. We did not find in evidence given by NCSC's witness's any record of prior guidance or alternative suggestions for acceptable formats.

  105. Issues arising from inspections such as shortage of hot water, availability of drinks in lounge, repair of bath hoist and formal records of registered providers visits, were in the context and overall complexity of the home, in our view, insufficient even when taken together, to warrant significant doubts about the overall operation of the Home or suitability and competence of staff. We accept that management and administrative staff took their obligations seriously; this is evident from the support given to each other, their reaction to events at the time and the current state of the Home reported by Mrs Thomas. We were impressed by the consistency of the evidence from those connected with the Home regarding its strong ethos of staff support and the caring attitude displayed by senior management. This we find has been effective in facilitating a quick response to situations and requirements once brought to their attention. In that these issues arose from staff error or inattention, we do not consider this a result of the lack of a registered manager but more likely a consequence of staff changes and upheaval.

  106. Following 82 it has not been necessary for us to conclude whether the result of the investigations into each individual complaint were correct in that even if established, taken together, we conclude they do not indicate a significant lack of proficiency. Our knowledge and experience is that such matters, although regrettable, inevitably arise during the day to day operation of a very busy Care Home.

  107. It is appropriate that we consider the position after the date of the NCSC decision; AICH continues in operation. We place particular importance upon the evidence of Mrs Trish Thomas that after her unannounced inspection in May 2003 she found one requirement, July 2003 two requirements and following a very recent inspection there was one outstanding requirement and some recommendations. She accepted the explanation for a delay in staff training.

  108. We conclude that the lack of a registered manager has not significantly or materially affected service users and find no persuasive support for the concerns taken into account by Mr Jefferson in refusing to exercise discretion and concluding that lack of registered manager has had a significant detrimental effect on the operation of the Home.

    109. Should Mrs Joyce's registration continue?
  109. Following 85, we conclude that there are grounds to exercise discretion and allow Mrs Joyce's registration to continue. For the reasons set out below, closure would have disproportionate effect upon the public, health agencies, social care agencies, the users currently at the Home, potential future users, owners and staff.

  110. Although not determinative, we accept that the public interest lies in ensuring that there are sufficient appropriately operated intermediate Care facilities in any particular locality. The evidence shows that the Home is well used, is monitored by its contractor the local PCT and discussions about expanding its contract are taking place. We conclude that it fulfils an important and necessary role within its area. It is in our view appropriate that the public have the benefit of its services unless there are significant reasons which impact on users for not doing so. The evidence does not support that conclusion and we have decided otherwise.

  111. We cannot approve a continuing breach of Regulations or requirements. Whilst we have found it appropriate to exercise discretion and refuse to follow the Commission in cancelling registration, we cannot ignore the failures in compliance. The law is clear and does not provide flexibility in the requirement for employment of a registered manager. This is severe and may not reflect everyday reality, staff leave for a variety of reasons, sometimes without warning. NCSC appears to have responded by development of informal policy, an "extra statutory concession." It may be that future amendments to legislation may formalise and clarify procedures and steps that should be taken.

  112. At all times the Group has appointed a person to be manager. Mrs Joyce has demonstrated her acceptance that AICH requires a registered manager and has taken positive steps towards compliance. At the time of the hearing, a manager, Mrs Beasley has applied for registration. These factors are important in the exercise of our discretion. We consider it appropriate that the continuation of Mrs Joyce's registration is conditional upon the appointment of a registered manager. We do so cogniscent of the fact that there is already a statutory requirement for a registered manager. We conclude that such condition should reinforce the statutory requirement and be as Mr McCarthy submits, clear, workable and just with a period of time identified. Mrs Beasley's application for registration has yet to be determined; it may or may not be successful. NCSC or their successor agency will no doubt take a view if in future the registered manager leaves. This will be pertinent to many other Homes.

  113. We note the evidence given particularly by Mrs Carragher that NCSC takes the pragmatic view that a three month period of grace for recruitment of a manager and three month target for processing registration is, in the light of experience, acceptable. She gave reasons why processing applications might take longer. We have also had regard to Mrs Murphy's evidence about the local job market. We conclude that a six month period, the extreme of the two steps required, is the maximum reasonable time it should take for a Manager to be appointed and registered.

  114. Whilst we note from the evidence, particularly that of Mrs Carragher that a period of grace is given, we are not satisfied that this is formal NCSC policy or that it can restrict the operation of the Act. Nevertheless, we take into account that there appears to have developed what can be considered a reasonable period for compliance during which no action will be taken. We accept that in appropriate circumstances this discretion is reasonable. We emphasise that this should not be considered a modification of statutory requirements and should not be applied in circumstances where cumulative periods of grace would contrive to defeat the proper operation of the Act and fulfilment of its requirements. It should not endorse lack of a manager or appointment of a manager who on appointment would immediately have committed a criminal offence.

  115. Having reached our conclusions on the questions posed above from the evidence presented, taking into account steps taken by Mrs Joyce to comply with the requirements upon her, it is our unanimous conclusion that her registration should continue conditional upon a registered manager being in post at AICH within six months of the issue of our decision.

    116. Order
    Mrs Joyce's registration as Registered Provider of AICH shall continue subject to a condition that a registered manager is in post within six months of the issue of this decision.
    L J Bennett (Chairman)
    B Graham
    M Jobbins
    Date: 6 January 2004

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