Tynn Care Services Ltd v Care Quality Commission [2009] UKFTT 249 (HESC) (09 October 2009)<BR>Schedule 1 cases: Establishments and Agencies<BR>Cancellation of registration (proprietor/manager)

Tynn Care Services Limited
Appellants
and

Care Quality Commission
Respondent
[2009] 1495.EA

Before:	Mrs Meleri Tudur
Mr David Cook
Mrs Helen Hyland

Decision

Heard in Yate, at the North Avon Magistrates Court, Kennedy Way on the 16 – 18 September 2009.
The Appellant was represented by Mr Francis Gichamba, the sole director of the company, assisted by Ms J Williams.
The Respondent was represented by Ms Kate Brunner of Counsel, instructed by Bevan Britton, Solicitors.

Appeal
1.	The Appellant appeals against the Decision to refuse registration to Tynn Care Services Ltd to provide a domiciliary care agency issued by the Respondent’s predecessor body, the Commission for Social Care Inspection (CSCI) on the 11 February 2009.

2.	On the 1 April 2009, CSCI’s functions and responsibilities were transferred to the Respondent, as the registration authority.

3.	On the 9 April 2009, the Appellant submitted an appeal against the decision to the First-Tier Tribunal - Care Standards.

The Law
4.	Where an application to register is made under section 12 of the Care Standards Act 2000 (CSA), in respect of an establishment or agency, the registration authority must be satisfied that the requirements of any regulations and other relevant enactments are being and will continue to be complied with in relation to the establishment or agency.  If so satisfied, section 13(2) provides that the application must be granted.  If not, the application must be refused.

5.	Under section 13(3), the application may be granted unconditionally or subject to such condition as the registration authority thinks fit.

6.	Section 21 of the CSA provides that an appeal against a decision of the registration authority shall lie to the Tribunal.

7.	On appeal, the burden of proof is on the Appellant to prove that it should be granted registration under section 13 CSA.

8.	In this case, it was the Respondent’s case that the Appellant did not fulfil the criteria for registration at the time of the application and continued not to fulfil the statutory criteria at the time of the hearing. 

Facts
9.	The Appellant is a limited company, whose sole director is Mr Francis Gichamba, a registered social worker.  The Appellant submitted an application for registration as a domiciliary care agency to CSCI which was received on the 22 February 2008.  The application named Mr Gichamba as the registered manager and responsible individual.
10.	Part II of the CSA provides the requirement to register and the arrangements for granting or refusal of registration.  Up to the 31 March 2009, the registration authority was CSCI, which ceased to exist on that date and whose functions and responsibilities were transferred to the Respondent from the 1 April 2009.

11.	Ms H Taylor, then a CSCI registration inspector, conducted an interview with Mr Gichamba on the 18 April 2008 and conducted a site visit to the Appellant’s office premises on the 29 April 2008.  Following these two events, the Appellant was notified that he was unlikely to be approved as the registered manager.

12.	On the 1 May 2008, Ms Taylor wrote to the Appellant offering three possible courses of action, because it was unlikely that the application to register would succeed with Mr Gichamba as the intended manager: the letter confirmed that the premises were fit for purpose; that the agency policies and procedures were generally fit for purpose and the statement of purpose was appropriate to the agency, but that Mr Gichamba did not have the necessary skills and experience to operate and manage the agency.  She confirmed her discussion with Mr Gichamba on the 29 April 2008, that there were three options available to him at that stage: he could appoint and put forward a suitably experienced manager to ensure the systems, processes and procedures of the agency were implemented; he could withdraw the application and reapply at a later date or the current application could be processed.

13.	Mr Gichamba replied indicating that he wished to proceed by appointing a manager.  By letter dated 21 May 2008, he was informed that the application would need to be submitted by the 14 July at the latest.  Mr Gichamba requested an extension of time for the appointment but this was refused.

14.	On the 16 July 2008, CSCI received an application from Mr Amritpal Gupta to be the registered manager of the agency.  The application was considered and Mr Gupta interviewed on the 19 August 2008. The assessment concluded that he was not fit to manage the agency.  A notice of proposal to refuse registration was issued, and Mr Gupta did not make any representations against it.

15.	On the 20 November 2008, a notice of proposal to refuse registration was issued to the Appellant. The grounds for the refusal were the following breaches of the Domiciliary Care Agencies Regulations 2002 (“the Regulations”):- 
(a)	Regulation 10 – Registered Person
(b)	Regulation 16 – Staff Handbook
(c)	Regulation 15 – Staffing
(d)	Regulation 14 – Arrangements for the provision of personal care
(e)	Regulation 13 – Conduct of agency
(f)	Regulation 23 – Financial Position
(g)	Regulation 9 – Fitness of manager

16.	At the date of the hearing, the Respondent was relying on breaches of Regulations 8 – duty to appoint manager, 10, 13, 23, 14, 16 and 15.
	 
Evidence at the hearing.
17.	Applications were made on the first day of the hearing by both Ms Brunner and Mr Gichamba.  The Appellants had submitted further documents in respect of the appeal on the 10 September 2009 and Ms Brunner applied to have them excluded on the basis that they were not presented in accordance with the case management directions of HHJ Pearl.  A second application was made to include documents brought to the attention of a member of the staff on the night before the hearing that indicated that the Appellant’s website was active and showing inaccurate or misleading information or otherwise indicated that the agency was carrying on business without registration.  Mr Gichamba opposed the second application.

18.	Mr Gichamba made an application for further documentary evidence in the form of two letters which he believed would assist the tribunal in understanding his position in respect of a manager. Ms Brunner opposed the application.

19.	The Tribunal refused the application in respect of some of the documents submitted on the 10 September 2009 but allowed time for the parties to put the relevant copies of the documents into the tribunal bundle and to remove those which were no longer necessary.  The application in respect of the copy of the website was allowed, as was Mr Gichamba’s application.

20.	Ms H Taylor gave oral evidence on behalf of the Respondent confirming the contents of her statement dated 26 August 2009.  She described her concerns about the suitability of Mr Gichamba as a registered manager following the interview she conducted on the 18 April 2008, and those arising from the subsequent inspection of the premises and documents.  She confirmed her view that Mr Gichamba did not exhibit understanding of the safeguarding vulnerable adults procedures and did not have management experience or training.  She explained that she had discussed with Mr Gichamba her concerns about his lack of management experience and lack of experience in the delivery of personal care and particularly, lack of knowledge about policies and procedures, the delivery of care and maintaining client safety.  

21.	Mrs Taylor gave evidence at the hearing about her continuing concerns about the agency’s ability to deliver care and the further concerns about the quality of the documents submitted in the course of the appeal, several of which she did not consider to comply with the regulatory requirements.

22.	Ms J Burvill gave oral evidence at the hearing, confirming the contents of her statement dated 20 August 2009.  She enlarged on her concerns about the ability of the agency to deliver the care described, particularly as it was now proposing to appoint both a manager and a care co-ordinator but without any clear provision for that within the business plan submitted in support of the registration application.  She expressed her concern that Mr Gichamba had not demonstrated an understanding of the Domiciliary Care Agency Regulations and the need for a manager or the requirement that a manager must be in place in order for the agency to be registered.  She underlined the fact that despite his having written to the Tribunal in March 2009 confirming that he had not yet appointed a manager, at the date of the hearing four months later, he was still without a manager.

23.	Mrs Burvill drew attention to the wide range of service user groups that the agency proposed to support. She expressed concerns about the lack of experience and inability to demonstrate an understanding of the needs of all the different client groups and the Appellant’s lack of financial viability.  She expressed her concerns about the absence of detailed guidance in the staff handbook, particularly in respect of the protection of vulnerable adults, underlining the difficulties for members of staff  who are not supervised and who work independently and in isolation, when they don’t have clear guidance and procedures in the staff handbook.  She gave detailed evidence about the particular concerns about the conduct of the agency in the light of inconsistencies between policies within the handbook, including medication policies.    She confirmed that in her view, Ms L Marsh would be a suitable care co-ordinator but that the documentary evidence did not support her role within the organisation.  She confirmed her particular concern that she was not at all confident that the Appellant could recognise poor performance and delivery in a domiciliary care context, referring to the training documents prepared in the context of a care home setting, which requires a different approach.

24.	Mr Mark Dunford, Regional Registration Manager gave evidence to confirm the content of his statement dated 26 August 2009.  He described the registration process and the referral of the written representations for consideration by a fresh pair of eyes when a Notice of Proposal to refuse is issued.  He provided an overview of the concerns around Mr Gichamba’s application for registration, stating that whilst it was possible for the company to be run and the agency managed by a single person as manager and provider, that person must be able to demonstrate the required skills, knowledge, experience and competence.  Mr Dunford described the prospect as an “arduous undertaking” for one individual and suggested that to do both is very demanding.  He stressed the need for sound and tight processes and systems to be in place to assist in terms of staff governance.  He confirmed that he had not previously seen a domiciliary care agency that was proposing to offer services to such a wide range of service users and noted that agencies usually set out to specialise in the delivery of services to a particular client group.  

25.	Ms Marsh gave evidence on behalf of the Appellant and confirmed that she had worked in the care industry since 1971, in a variety of settings.  Her last post was as a care co-ordinator for a Domiciliary Service in Weston where she was responsible for a team of 25 to 30 care staff ensuring delivery of good quality care.  She confirmed that she had been responsible for assisting Mr Gichamba in the preparation of the updated paperwork submitted in the course of the appeal.  She had been employed by him on a part time basis to assist until the issue of the registration was resolved and if the appeal succeeded then she would assist in the delivery of care to service users and possibly take up a full time post as care co-ordinator as the volume of work increased.  In the early stages, it was anticipated that she would undertake all of the initial assessments to ascertain the needs of service users.  

26.	Ms Marsh confirmed that the staff handbook had been in existence before she joined the company and that she had not been asked to produce another.    She confirmed that she would have a training role within the company and that she had held such a position previously.  She had devised the induction training sheet, and explained in oral evidence that it was misleading in that it appeared to be a day’s training when in fact it should be over three days.  She did not consider that the training document she had identified as part of the induction programme, placed in a residential home setting to be inappropriate for the training of domiciliary staff.  On cross examination, she accepted the criticism made of the induction training programme and agreed about the importance of a robust care plan and confirmed that the company did not appear to have such a plan.  She confirmed the view that there was a clash in the confidentiality policy leading to the policy being unclear but it was her view that there was nothing identified that could not be put right.

27.	Mr Gichamba gave evidence about his background and experience in care since 1997, when he started training.  He described the experience he had gained in work placements working with learning disabled adults and assisting elderly service users.  He qualified as a social worker in 2003 and then worked on a part time basis in Bedford until he moved to Bristol.  He confirmed in oral evidence that he did not now consider that he had the right experience to be a registered manager himself but was of the view that he would learn very quickly if he was given the opportunity to work alongside an experienced and competent manager.  He explained that his proposal was that he would advertise for a manager as soon as his registration was granted, indicating that it was his belief that he would not be allowed to do so unless the company was registered.  He confirmed that he had not sought any legal or expert advice regarding the process of registration or appeal on the basis that such advice would be very expensive.  He had been under the impression that he and Ms Marsh had made a good team putting together the paperwork for the company, but that in the light of the Respondent’s evidence about the defects in the paperwork, he was no longer happy with the paperwork and considered that it would be necessary to redo the business plan, the medication policy and the cashflow and undertake a review of every other document proposed for use.  He acknowledged that some of the paperwork does not comply with the relevant legislation even at the date of the hearing.

28.	Mr Gichamba confirmed that the company was not currently offering care but had employed staff on a part time basis to try to ensure a successful registration.  He indicated that if required by the tribunal, then the company would employ a registered manager.  He confirmed that at the time of the hearing, the company did not have a registered manager and would be advertising for a manager if the application to register was successful.

29.	Mr Gichamba explained that the name of another company had appeared in one of his documents because of a typing error on his part.  He stated that he had been seeking to compare his own document with that of another company and that he had inadvertently included that company’s name in his own document.  He acknowledged that some of his documents would need to be rewritten in the light of the issues brought to his attention by the Respondents. 

30.	No explanation could be offered for the omissions of the salaries of a manager and a care co-ordinator from the business plan.  Mr Gichamba acknowledged on cross-examination that the cashflow projections were inaccurate and that there was a need for a greater injection of cash into the business than he had originally envisaged.  He confirmed that he had not yet looked in to the possibility of borrowing money to support the company in the early stages.

31.	Finally, when invited by Ms Brunner to consider the case summary presented for the Respondents, Mr Gichamba confirmed that the company was in breach of Regulation 8 in that it did not have a registered manager in post either at the time of making the application or at the date of hearing; he confirmed that he, personally, did not have the relevant knowledge and skill to be the responsible individual pursuant to Regulation 10(1); he further agreed that at the time of the hearing, he did not have sufficient training to satisfy the requirements of Regulation 10(2).  In relation to Regulation 13, Mr Gichamba confirmed that he didn’t think he could conduct the agency appropriately and was not in a position financially to appoint a manger without sufficient funds.  He accepted that the company was in breach of Regulation 14(6)(b) in relation to the administration of medication policy  and that some of the staff handbook still requires reviewing to comply with Regulation 16.

32.	Only in relation to Regulation 15 did Mr Gichamba disagree with the Respondent’s case, suggesting that there was no inconsistency in the proposed number of staff, and that the number employed would depend on the nature of the registration granted to him.

33.	Finally, Mr Gichamba requested the Tribunal to place a condition on his registration allowing him more time to put the appropriate paperwork and procedures in place so that he would comply with the regulations.  

34.	The Tribunal also had copies of correspondence passing between the parties and each other and the Tribunal, including a letter from Mr Gichamba dated 10 March 2009 addressed to the Tribunal and confirming that he did not have an appointed registered manager for the agency. 

Tribunal’s conclusions
35. The Tribunal had before it a substantial bundle of documents that included the documents prepared by the Appellant in support of the application for registration and the appeal.
	
36.	We considered the evidence presented by the Appellant in support of his appeal.  Mr Gichamba’s acceptance, both in correspondence in March 2009, when he confirmed in writing to the tribunal that he did not have a registered manager and in oral evidence to the Tribunal, when he confirmed that he could agree to at least seven breaches of the Regulations were in themselves sufficient to justify our conclusion that the regulatory requirements for initial registration were not and are not met in this case, but in our view, it also confirms the existence of a situation that is far from acceptable in terms of starting the process of offering services to vulnerable people within their own homes.
37.	We were struck by Mr Gichamba’s lack of insight into the importance of compliance with the statutory requirements and his failure to grasp that he needed to take positive action in order to put right those issues identified by the Respondents, both in the Notice of Proposal to refuse registration and in their final decision to refuse registration.  Despite the time offered to him to put things right, in the course of the appeal Mr Gichamba did not take that opportunity, any more than he took the opportunity to find an appropriate manager when he was given additional time to do so in the summer of 2008.

38.	We were concerned about his failure to seek appropriate advice and guidance before embarking on the project  and again when he made an appeal to the tribunal.  If he was seriously hoping to establish a successful business venture, then such advice and guidance should have been his starting point, given his lack of experience in care delivery.

39.	We accepted the evidence of Mrs Taylor and Ms Burvill about the specific breaches of the regulations, even where it was challenged by Mr Gichamba.  We preferred their evidence because both are experienced registration inspectors and their evidence was clear, logical and consistent.

40.	Given Mr Gichamba’s admissions in respect of the breaches, we do not propose to detail the findings individually in respect of each individual breach.

41.	We have concluded that the appeal must fail:  the Respondents have shown that the concerns that they had were real and substantial, and even on the Appellant’s own admissions he is still, at the end of the appeal hearing in breach of at least seven of the statutory requirements as set out in the Domiciliary Care Agency Regulations 2002.

42.	We considered Mr Gichamba’s request for a condition to be placed on his registration that he should only commence delivery of services when a registered manager has been appointed.  This was not a valid condition to place on the registration, forming, as it does, one of the statutory requirements.

Order
Appeal dismissed.

Dated the 9th day of October 2009

Meleri Tudur, Tribunal Judge
David Cook
Helen Hyland