Care Standards Tribunal, 2006-09-20 (Karen Tongue v Commission for Social Care Inspection)
| Jurisdiction | United Kingdom |
| Registration Number | 2006/684/EA |
| Date | 20 September 2006 |
| Court | Care Standards Tribunal |
Published decisions of the CST
Karen Tongue
-v-
Commission for Social Care Inspection
[2006] 0684.EA
-Before-
Andrea Rivers (chairman)
John Hutchinson
Christopher Wakefield
Sitting at the Care Standards Tribunal, Pocock Street, London, on July 24th, 25th and 26th and on September 1st 2006
For the Appellant: Mr Martin Wigg of Sovereign Healthcare Development Ltd
For the Respondent: Mr Paul Spencer of Counsel instructed by
Anthony Collins, solicitors
DECISION
1. This was an appeal against the Respondent's decision to refuse the appellant's application to register as manager of St Martin's Care Home in Redditch. St Martin's is registered to provide care for up to twelve residents over the age of 65, including people who may have physical disabilities and/or dementia.
2. The decision appealed against was made on 8th March 2006 and the appellant's application to this tribunal is dated 4th April 2006.
The Evidence
3. We read and heard evidence from four of the respondent's employees: Alan Sholl, a regulation manager; Lynette Ranson, business relationship manager for their Worcester office, Nicholas Andrews a regulation inspector who had conducted inspections at St Martins and been present at both the appellant's fit person interviews; and Rachel McGorman, a regulatory inspector who had been present at her first fit person interview. The respondent also submitted statements from Michael Headley, managing director of Community Careline Services (CCS), Mrs Tongue's previous employer, and from Julie Ford, a manager who had worked there with Mrs Tongue. Mrs Ford also gave oral evidence at the hearing.
4. We heard and read evidence from Mrs Tongue, her employer, Mr Lawrence Custin, and Mrs Joan Pitt, the daughter of one of their residents. We also read a statement from Mrs Annie Chambers, a resident at St Martin's.
5. We were also provided with extensive documentation from both parties including inspection reports, letters, forms and certificates.
The Law
6. S11(1) of the Care Standards Act (CSA) 2000 imposes an obligation on the manager of a care home to register and states that it is an offence not to register.
S13 of the CSA provides that a registration authority shall grant an application for registration, provided they are satisfied that:
(a) the requirements of regulations under s22 and
(b) any other enactment which appears to the registration authority to be relevant are being, and will continue to be, complied with. If not, they must refuse it.
7. Regulation 9 of the Care Homes Regulations 2001, as provided for in s13(a) above, states that:
(1) A person shall not manage a care home unless he is fit to do so.
(2) A person is not fit to manage a care home unless -
(a) he is of integrity and good character
(b) having regard to the size of the care home, the statement of purpose and the number and needs of the service users -
(i) he has the qualifications, skills and experience necessary for managing the care home and
(ii) he is physically and mentally fit to manage the care home.
8. Guidance in appeals of this kind can be found in the case of Peter Jones v CSCI which initially came before the Care Standards Tribunal in December 2003. The tribunal's decision was appealed and came before Sullivan J, ([2004] EWHC 918(Admin)), who allowed the appeal and remitted the case for rehearing by another tribunal. There was a further appeal to the Court of Appeal, ([2004] EWCA Civ 1713) which upheld the decision of Sullivan J. The case was then reheard by the Care Standards Tribunal and in their decision (Peter Jones v CSCI [2005] 426.EA) they gave a summary of the guidance provided by the higher courts in the two appeal decisions.
9. In considering this case we have therefore applied the following principles, as formulated and summarised in the above cases:
1) It is for the applicant to prove that he or she is a fit person to manage a care home, since, as stated by Thomas LJ, "It is entirely in the public interest that they should do so. A manager of a care home occupies an important position of trust and must demonstrate that he is fit and proper to hold such a position."
2) Any doubts must be resolved against registration.
3) The requirements of Regulation 9 are mandatory and must be satisfied before registration is granted.
4) The first question that must be asked is: is the applicant of integrity and good character? If not then he or she is not fit to manage a care home. If the answer is yes, then the second question is whether he or she has the necessary qualifications, skills and experience. If the answer is yes, then the third question is whether he or she is physically and mentally fit to manage the care home.
Burden and standard of Proof
10. It follows from the above that the burden of proof is on the appellant. The standard of proof is balance of probability.
National Minimum Standards
11. In addition to the provisions of the CSA and the regulations imposed under s22 of that act we also took into account the relevant provisions of the National Minimum Standards for Care Homes for Older People, February 2006, published under s23(1) of the CSA. The introduction to these standards states that "compliance with national minimum standards is not itself enforceable, but compliance with regulations is enforceable, subject to national standards being taken into account."
Factual Background
12. According to her registration application form Karen Tongue began working as care manager at St Martin's in March or April 2004 (both dates appear in different parts of the form). In response to a request from her and pursuant to the requirements of s11(1) CSA, a registration application pack was sent to her by the respondent on March 4th 2004.
13. St Martin's was inspected on 29th April 2004, shortly after she had taken up the post. Nicholas Andrews was the lead inspector and the report of the inspection listed 23 statutory requirements based on regulations which had to be complied with within a specified timescale, and 21 recommendations, based on the NMS.
14. Mrs Tongue says she completed the registration application form and delivered it to the respondent, but they say they did not receive it and on October 28th they sent her a further pack, together with a reminder that she needed to register. She completed this form and dated it 20th December. There was an inspection on 12th January 2005 and the inspection report records that Mrs Tongue submitted the application for registration on that day.
15. There were some omissions in the registration application and on January 31st the respondent returned it to Mrs Tongue asking her to rectify them. They set a deadline of March 18th for resubmission of the form and reminded her that it was an offence for her to manage the home without being registered. Her amended application was received by them on 24th March 2005, although it was still dated 20th December 2005.
16. On 26th May Mrs Tongue attended a fit person interview. The interviewers were Nicholas Andrews and Rachel McGorman. After that interview, in a letter dated 30th June they wrote to her asking for additional information, which had not been available at the time of the interview. They still did not have a medical reference, a second character reference or a CRB check for her.
17. The next inspection was on June 13th and 14th and this time the report set out a list of 40 requirements and 23 recommendations.
18. The Respondent had written to Dr Ford, Mrs Tongue's GP on 11th April 2005 and again on 18th May, requesting a medical reference. On 30th May they received a letter from him, dated 25th May, the day before the fit person interview, saying he had been unable to contact Mrs Tongue and returning the Respondent's two letters. However, on 9th August 2005 Dr Ford wrote again to the Respondent to say that he was now able to report that she was in excellent health.
19. There had been a delay in obtaining a second reference for Mrs Tongue. On her form she had given the name of Julie Ford, a senior colleague at CCS, but when the respondent had contacted her she had asked them to refer the enquiry to Michael Headley, the managing director of CCS. They had difficulty contacting him but eventually, on 25th October 2005, a letter was received from Sue Aylmer, a director and company secretary at CCS. In it she said that Mrs Tongue had left their employment in February 2004. Whilst working at CCS she had told the writer, as well as a number of other members of staff, that she had a brain tumour and because of this they had not questioned her many absences from work. They had also received sick notes from her relating to an angina attack in December 2003. She had given in her notice and left their employment the following February and they had thought that this had been because she was ill and had been surprised to learn that she had gone straight to a new job.
20. In December the respondent received a satisfactory CRB check for Mrs Tongue, dated 2nd December 2005.
21. On 12th December there was a second fit person interview. The interviewers were Nicholas Andrews and Yvonne South. Mr Andrews' notes of the interview record that in response to questions about her health she told them she still suffered from a back injury due to a car accident in November 2002. She said she had spent two weeks in hospital with a stress related heart attack. She said she had had a scan because she had been...
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