[2011] UKFTT 547 (HESC)

Case no. [2010] 1804.PVA 1805 PC

BEFORE THE FIRST TIER TRIBUNAL
(HEALTH EDUCATION AND SOCIAL CARE CHAMBER)

B E T W E E N:

SK
Applicant
-AND-

SECRETARY OF STATE FOR HEALTH 
Respondent
______________________________________________________________

DECISION

______________________________________________________________

Attendances:

For the appellant: 		Ms C Price (Counsel)

For the SOS:			Ms Patry-Hoskins (Counsel)

Before:

Tony Askham		Tribunal Judge
Jeff Cohen			Specialist member
Margaret Diamond		Specialist member

Hearing Dates: 13th -17th and the 20-24th June

Appeal

SK appeals under Section 86 of the Care Standards Act 2000 against the Respondents’ Decision dated 29th April 2010 to confirm her inclusion on the Protection of Vulnerable Adults (POVA) List and the Protection of Children Act (POCA) List.

The background to this appeal

1.	In the course of the proceedings the parties had agreed a factual background, which we set out and the legal framework relating to it. We agreed with the parties’ legal framework and made our decision based on it. To ensure that service users can not be identified we have called the users by initials namely RH, AM, VG, BW, JH, KK, BJ, PG, and MF.  We refer to the appellant through out as SK and the Respondent as SOS.
Factual background

2.	SK took over as the registered provider for a care home known as Turnbull House in December 2005. It is common ground that although she had previously worked as a community support worker for the mental health charity MIND, she had never managed a care home or held a managerial position in one.

3.	Between March 2006 and 28 April 2008, a number of complaints were made about SK to the relevant regulating authority (then CSCI). A number of inspections took place during this period:

(a)	9 March 2006 (inspection in response to a complaint on 1 March 2006)

(b)	21 July 2006 (key inspection)

(c)	22 March 2007 (key inspection)

(d)	3 May 2007 (formal meeting rather than inspection)

(e)	24 August and 3 September 2007 (key inspection)

(f)	2 April 2008 (pharmacy inspection)

(g)	3 and 9 April 2008 (key inspection).

4.	In April 2008, the police also became involved and took witness statements from a number of members of staff.

5.	On 28 April 2008, CSCI made an application to a magistrate for an emergency cancellation of the provider’s registration, under section 20 of the Care Standards Act 2000. This was granted and the residents were moved the following day.

6.	Parklands Care Limited (‘Parklands’) appealed against the cancellation. However, CSCI withdrew its resistance to Parklands’ appeal after SK agreed to accept a stipulation contained in a letter from CSCI’s solicitors, dated 11 September 2008, namely: 
“[SK] will not be involved in the operation, management, ownership or control of Turnbull House, whether directly or indirectly, and will not visit or attend Turnbull House for any purpose or in any capacity whatsoever.”

7.	In the meantime, on 10 June 2008, Jane Rumble of CSCI made a referral to the PoVA team (acting on behalf of Secretary of State for Health). SK was provisionally listed by way of letter dated 28 May 2009, and the listing was confirmed on 29 April 2010.

Legal Framework

8.	As this is an appeal brought under section 86, section 86(3) of the Care Standards Act 2000 provides that an appeal shall be allowed if the Tribunal are not satisfied of either of the following, namely:
a.	that the individual is guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult; and
b.	that the individual is unsuitable to work with vulnerable adults.

Burden and Standard of Proof

9.	The burden of proof in establishing misconduct lies with the Secretary of State for Health (‘the SSH’). However, if misconduct is proven, then the burden switches and it is for the Applicant to prove that she is suitable to work with vulnerable adults, see Smith v Secretary of State for Health [2007] EWCST 1174 PVA.
 
10.	The standard of proof is the civil standard, namely the balance of probabilities.

Information which can be taken into account

11.	In deciding the statutory questions set out above, the Tribunal is entitled to take into account all material and evidence presented to them in the course of the appeal, see Sini Joyce v SSH [2006] 813 PVA. 

Misconduct 

12.	In Angela Mairs [2004] 269 PC, a case dealing primarily with an appeal against a PoCA listing, the Tribunal set out a number of principles of what constitutes “misconduct”, including [para 109]:

(1) “Misconduct is not defined in the [PoCA 1999] nor is the term qualified by any adjective such as ‘serious’ or ‘gross’.” 

(2)	 “In principle, a single act of negligence could constitute misconduct (per Webster J in R v. Pharmaceutical Society of Great Britain ex p. Sokoh (1986) The Times, 4 December) but in most cases the misconduct will be an incident forming part of a course of erroneous or incorrect behaviour undertaken by a person who knew or ought to have known that what he or she was doing was contrary either to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling”.
(3)	“In the context of a profession, for there to be a finding of misconduct there must be a falling short, whether by omission or commission, of the standard of conduct expected from members of that profession (Doughty v. General Dental Council [1987] 3 All E.R. 843)”.

(4)	“It is not helpful to attempt to further refine ‘misconduct’ by reference to any adjective having moral overtones. The word ‘misconduct’ does not necessarily connote moral censure. An individual can be ‘guilty of misconduct’ without being, for example, dishonest or disgraceful.”

13.	Section 92(4) of the Care Standards Act 2000 provides that misconduct in relation to a vulnerable adult for the purposes of the POVA list satisfies equally the requirement of misconduct in relation to a child.
Suitability

14.	Unsuitability is to be judged by the Tribunal as at the date of the hearing. In assessing suitability, the Tribunal is entitled to take into account (a) the nature of the misconduct found; and (b) other admitted, undisputed or proved past conduct of the Applicant, whether good or bad, Angela Mairs v SSH [2004] 269.PC at 111. 

15.	In the Mairs case, the Tribunal held that a consideration of suitability may involve the Tribunal considering various factors, including the number of incidents, the gravity of the misconduct, the time which has elapsed since the misconduct, the timing and degree of recognition by the appellant of the misconduct, steps taken by the Appellant to minimise the possibility of recurrence and extenuating circumstances.

16.	Although (as set out above) misconduct in relation to a vulnerable adult equally satisfies the requirement of misconduct in relation to a child, the same is not true of suitability. Unsuitability to work with vulnerable adults has to be considered separately from unsuitability to work with a child, AP v SSE [2006] 0742.PC/0743/PVA.

The SOS allegations of misconduct as against the Appellant
17.	In the course of the proceedings the SOS was ordered to particularise the allegations of misconduct. Those allegations of misconduct are as follows:
a.	Shouting at service users on numerous occasions between January 2006 and April 2008.

i.	Around 22 December 2007, shouting at VG excessively and threatening to prevent her showering following insult to Olena Tchakut

b.	SK shouted at members of staff on numerous occasions between January 2006 and April 2008, the Applicant.

i.	SK hurled a cloth at a staff member and screamed at her to clean up a spillage / grabbed her wrist and screamed regarding toast
ii.	SK made derogatory comments to an ex-staff member’s new employer
iii.	Generally. SK smeared ketchup / rearranged kitchen cupboards to check on cleaning

c.	The Applicant regularly restricted the service users’ access to food or drink to an extent that was inappropriate and / or left them hungry.

i.	SK threatened staff member with PoVA listing for putting too much butter on toast.
ii.	SK counted juice cartons, which prevented carers giving them freely to SUs.
iii.	Staff member would give a service user a sandwich during the night as he was hungry and had to keep it secret as she would have been sacked.
iv.	JH said that SK did not allow him snacks and put him on a diet
v.	Tyburn day centre staff reported that service users were hungry

d.	The Applicant engaged in inappropriate contact with service users: kissing one on the cheeks and lips, giving him cuddles and ‘spooning’ on the service user’s bed.  She also encouraged staff to be physically affectionate with the service users.

i.	SK kissed AM on 29 April 2008
ii.	SK was seen kissing and hugging RH and AM. Also lying on bed with RH. 
iii.	Staff objected to SK encouraging too much physical affection

(The SOS accepted during the hearing that it was not alleged that SK had kissed a user on the lips or had in any way behaved in a sexually improper way).

e.	The Applicant was rough in her handling of the service users: for example, pushing BJ in the kitchen, roughly handling AM when applying cream, threatening RH with a mop handle and saying that if he behaved badly again she would hit him with it.
i.	Push October 2007, SK pushed BJ in the kitchen
ii.	Cream. SK applied cream with bare hands roughly to AM’s bottom. SK did as above, then administered medication without washing hands.
iii.	Mop. On 2 October 2007, Sheree Brockie, Angela Pennant and Rehana Muzamal witnessed SK threatening RH with a mop, following RH pushing Angela Pennant due to his coat and shoes being brought downstairs

f.	The Applicant actively discouraged or prevented staff from recording incidents that had occurred at the home, or restricted the detail that was to be included by staff.  For example: the Applicant refused to allow any record to be made of a report from the Police that one of the service users had been caught “flashing” at a nearby school; that one service user had informed her key worker that she sometimes gave £5 to another service user because he was her friend; or that a service user had thrown a plate.

i.	Manager was not allowed to manage – couldn’t sign off reports about SUs without SK’s approval.
ii.	SU throwing a plate was not recorded.
iii.	SU not allowed to record preference for steak.
iv.	The mop incident was written up by SK, so didn’t mention mop.
v.	Staff member was discouraged from recording swelling in an SU’s foot, and told to write something had fallen on it.
vi.	 Staff member was sacked for reporting concerns to CSCI.
vii.	SK was unhappy about Angela Grant recording concerns about SK in supervisions.
viii.	Poor complaint handling noted by CSCI.
ix.	Complaints book for period of SK’s involvement has few entries compared to number of entries prior to SK’s involvement (and doesn’t reflect all Reg. 37 notices).

g.	The Applicant changed documents or added to them later to improve the records.

i.	SK changed records following death of SU even though not present at time.
ii.	General allegations that SK changed financial and other records.
iii.	Sheree Brockie claimed to CSCI that SK removed VG’s records from the home for altering after her death 
iv.	SK removed records following a death
v.	“Comment cards had been re-written” SUs categorically told they were not to raise concerns with CSCI inspectors.
vi.	SK ordered an SU to change a quality assurance sheet 
vii.	KK suffered a fall on 7 March 2008. Discrepancies between what was written by staff in daily notes and what SK recorded later in required documentation to cover delay in obtaining treatment for him
viii.	SK removed written report of complaint of SU about another SU banging on his door.

h.	The Applicant failed to encourage or promote independence of the service users and on the contrary she infantilised them.  For example, she regularly fed one of the service users even though he could feed himself (and did when she was not there) she bought clothes for the service users (from their own money) and did not involve them in the purchase decision. She referred to herself as “Mummy”. She would treat the service users as a mother might treat small children and was heard to say: “you are naughty” “I will smack you”, or “I will hit you with this if you don’t” to VG and RH.

i.	Clothes: General allegation re buying clothes and passing to SUs. SK said to SU “Mummy has bought you this sweater”
ii.	Lack of independence. SK restricted SUs’ use of own finances and imposed her choices on them.
iii.	 Infantilising: SK said that JH loved her and called her Mummy

i.	The Applicant demonstrated an obsessive concern with minimising expenditure to the detriment of the environment and service users at Turnbull House.  For example: the home was often cold, particularly in winter and the Applicant removed the dials on the radiators so that service users could not increase the heat output in their rooms; the Applicant would prop open fire doors to let in daylight so that lights did not need to be switched on; the Applicant taped over some light switches so that they could not be switched on; she tried to make staff serve food to the service users which was past its sell-by date; she shouted at a member of staff about the amount of jam being put on a service user’s sandwich.

i.	Fire door / lights: SK propped open the fire door to reduce electricity use and taped certain light switches down to prevent their use. 
ii.	Coldness: SK restricted the heating to save money.
iii.	Broken kitchen window was unsafe and cold.
iv.	Pauline Barnes complained to CSCI re SK wanting to take Service Users to her own home as TH was so cold.
v.	JH said SK took knobs off radiators.
vi.	SK removed dials from radiators to prevent proper heating.
vii.	Food: SK gave SUs “minimal fresh food” and staff were instructed to give SUs “out of date food”.
viii.	Cupboards were always bare, lunch boxes half empty.
ix.	Quality and choice of food was “very poor”.
x.	Staff refused to give SU an out of date pork pie. SK ate it herself, claiming safe to use.
xi.	SK removed packaging to conceal out of date food. 
xii.	Rationing food: SK said a staff member was breaching SUs’ human rights by giving them a choice of food.
xiii.	SK told a staff member certain residents were on a diet.
xiv.	Angela Grant said “not much food in the house” considering amount paid by SUs

j.	Failing to properly handle the service users’ finances: for example the Applicant bought herself a coat, changed her mind about wanting it, gave it to BJ and charged BJ for it; asking BJ to pay for a wardrobe brought into her room when the Applicant should have paid for this herself; she attempted to persuade AM to use his own money to buy some nice furniture for his room because his room was at the front of the home and any visitors might then be impressed by the furnishings.

i.	BJ clothes: SK bought herself a coat, changed her mind and made BJ pay for it.
ii.	SK would buy an SU a jumper even if they didn’t ask for or need one.  SK said to SU “Mummy has bought you this sweater”. 
iii.	AM Furniture: SK attempted to get AM to buy nice furniture 
iv.	Wardrobe: SK bought a 2nd hand wardrobe and made an SU pay £80 for it. SK chose a wardrobe and made BJ pay for it, when the home was meant to be furnished. SK took an SU’s money to pay for a wardrobe against her will and without recording it. SK Would use SUs’ money for furniture rather than activities.
v.	Finances generally: general concerns about finances . JH said SK had taken some of his money

k.	Being very controlling and bullying to service users: e.g. incident involving VG’s orthopaedic shoes being threatened to be thrown away, BJ having to eat facing a wall, shouting at KK to “eat, eat, eat” his meal, threatening a service user, in front of others, that he would have to have a potty in his room rather than be allowed to use the bathroom, threatening a service user who was declining to assist a member of staff with filling the dishwasher at the end of a meal, that if he didn’t help, she would withhold his food; threatening service users with eviction if they did not comply or behave. 

i.	Shoes: VG expressed concerns to psychiatrist. SK shouted at Rehana Muzamal, said disclosures of unhappiness outside home not allowed. Then SK shouted at VG and threatened to throw her shoes away. VG was upset and cried, pleading with SK. 
ii.	SK threatened SUs with eviction, told SU that he would need a potty, in front of other SUs, threatened to withhold food for not assisting with dishwasher.
iii.	SK pointed in KK’s face and forced him to eat.

l.	Threatening staff with dismissal if they made a complaint to CSCI.  Informing staff not to be open with CSCI Inspectors.

i.	When SK became aware of anonymous CSCI complaint, she called a staff meeting and said she would sack the complainant.
ii.	SK would send one vocal SU to the pub to avoid meeting inspectors.
iii.	SK briefed a staff member on what to say to the CSCI inspector.
iv.	SK criticised Pauline Barnes for going to CSCI rather than to SK. 
v.	SK said she knew people at CSCI and would know if staff complained to them.
vi.	SK sacked a staff member (who was subsequently successful at Employment Tribunal) for threatening to complain to CSCI.

m.	Over-medicating SUs. Over-medicating MF and instructing a member of staff to increase the dose of medication in respect of a service user notwithstanding that the day before the doctor had refused to increase the dose, stating that the extra medication would not have a beneficial effect on the patient. Inaccurate care plans produced.
i.	SK gave extra medication to keep SUs quiet. SK attempted to influence Dr to increase medication. He refused, but SK insisted on staff giving an extra dose anyway. 
ii.	In late 2007 SK forced MF to take an extra diazepam, even though he knew he had taken enough. He eventually accepted.
iii.	SK had own stock of tablets to overmedicate MF.
iv.	SK instructed staff to administer one SU’s medication to another.
v.	SK gave MF JH’s diazepam “to keep him quiet”.
vi.	CSCI made a number of requirements about poor medication practice after 31/01/08
vii.	AM’s medication was increased in February 2008.
viii.	AM’s health records were inaccurate
ix.	BW’s care plan inaccurate

n.	Failing to respond appropriately upon being informed that a member of staff had taken a photograph of AM in the shower, for example by making a Regulation 37 notification or PoVA referral.

i.	M was witnessed taking a photo of AM in the shower. When this was brought to SK’s attention, she saw the photo on his mobile phone. He cried. She asked him to delete it. (This allegation was withdrawn in the course of the hearing)
 
o.	Failing to perform adequate CRB or PoVA checks for staff, or to provide an adequate induction prior to their contact with service users.
i.	Inappropriate staff on duty when an SU died. Not CRB checked, panicked and called relative at another care home for help.
ii.	CSCI report identified need for robust recruitment checks
iii.	Olena Tchakuk and Ulla Yuryeva were employed without CRB checks or training. On duty together when VG died. One called her mother for help, failed to perform CPR. Needed to be told to call ambulance. 
iv.	Rehana Muzamal was asked to work before CRB check received.

18.	The Respondent submitted that each and any of these incidents amount to misconduct and that, by reason of their number and seriousness Mrs Kaur is unsuitable to work with vulnerable adults and children.

The evidence:

Evidence 13th June (the evidence from CSCI)

Donna Ahern

19.	On the first day we heard part of the evidence of Ms Donna Ahern, who is a Regulation Inspector for the Commission for Social Care Inspection (CSCI). Ms Ahern was the lead inspector for the home since the 1.4.2006. Parklands Ltd became the registered owner of the home on 5.12.05 and SK was the Responsible individual and for most of the relevant period the manager.   The home provided personal care for 12 people who have learning difficulties. The majority of the residents were also elderly. When Parklands took over the home it rating with CSCI was "poor". Many of the users and some staff had been in the home for long periods in some cases over 10 years.

20.	She informed us that when she became lead inspector she was aware that CSCI had received an anonymous complaint which appeared to come from the staff in the home. As a result there had been an inspection of the home carried out by one of her colleagues on the 9.3.06. She found some of the complaints upheld. Whilst she found two fire doors wedged open and no adequate records of the food served to the residents the two major complaints that staff were unable to complain because they were being harassed by SK and that the quality of the food was poor were not upheld. Two members of staff interviewed confirmed they would complain to SK and were confident to do so. One described her as caring and neither had any complaints.  This outcome was confirmed in a letter dated 22.3 06.

21.	On the 21.7.06 Ms Ahern carried out a key inspection and the overall outcome was “adequate". At that time there was a manager Pauline Barnes in post.  Ms Ahern thought there was some tension between Ms Barnes and SK. In September Ms Barnes left the home because as Ms Ahern understood it Ms Barnes had raised concerns about the homes management. Ms Ahern did not know that SK maintained the dismissal was for other reasons. 

22.	A further inspection took place on 22.3.07 when the home was rated as "poor" and 29 requirements were made. On 24.8.07 and 3.9.07 further inspections took place.  A new manager Ms Rehana was in place and Ms Ahern considered there had been a marked improvement. As a result a classification of “adequate" was given to the home. 

23.	As a result of an accident Ms Ahern was off work from late September 2007 and was not back at work full time until late March 2008. During her phased return to work she became aware that a number of complaints had been received by CSCI about the home.  One former member of staff and one current member had visited CSCI offices to complain. They made a series of serious allegations about SK which include some now relied on by the SOS. These included allegations of financial abuse of the residents, threats to service users and staff if they complained to CSCI, poor supply of food and drink, falsification of staff rotas and medication use. Ms Ahern was asked to follow these up at her next inspection. 

24.	On the 4.3.08 CSCI received a complaint in writing purporting to be from members of staff at the home complaining that SK had been verbally and physically abusive to service users, had threatened to put them on the street if they complained to CSCI, providing poor food, and that SK screamed and shouted at service users. She said she had never found out who had written this anonymous letter received in her absence. She agreed that the letter did not suggest any kissing of users on the face or the lips. Nothing was alleged about B being pushed in the kitchen. She accepted that when interviewed B did not say she was pushed. Similarly she agreed that there was no complaint about medication or shoes. 

25.	Her duty colleague also received a telephone complaint from a staff member Joan Morse otherwise known as Cheree Morse (also known as Brockie) on the 11th March 2008.   Ms Morse raised concerns as to the circumstances of two recent deaths in the home. She complained that SK had sent threatening memos to staff stating she would refer them to POVA, that she had been giving patients extra diazepam and changed the MAR sheets to hide this, and that staff had witnessed SK being abusive to patients and had threatened one with a mop. When Ms Ahern spoke to her she added that staff were being asked to falsify records and that she had seen SK push a service user.

26.	Given this escalation and the nature of the complaints Ms Ahern decided the matter must be referred to Birmingham City council social services department and the police regarding safeguarding issues. This referral was made.

27.	Ms Ahern then received a phone call from Ms Rehana who said she had tried to speak to Ms Ahern whilst she was on sick leave. She said that SK shouted at service users, threatened one with a mop, laid on a bed with a user and kissed him on the forehead and lips, and made one cry. She also claimed that SK had made staff write up records in a way that the home would not be open to any criticism.

28.	CSCI then received a letter from Miss Grant another former manager at the home. She maintained that she had seen a user being verbally abused on a number of occasions, had added information to a deceased user’s daily diary after death, in appropriately applied cream to a user, and had placed her hands on a users neck.

29.	Ms Ahern interviewed the home's staff over the period of the 8th to 11th April. Many made complaints about SK as did one service user who said that SK would shout at him if he stayed up late.

30.	As a result on the 20th May a magistrate’s court made an order under Section 20 of the Care Standards Act cancelling  the provider’s registration and all the residents were disbursed to various homes. Later this Tribunal by consent allowed an appeal against the order upon agreement being arrived at that SK should have no part in the management of the home. 

31.	Ms Ahern interviewed staff again after closure between 10-16June. Many made similar complaints as the ones received prior to the closure.  Social services also obtained feedback from the families of users and she told us that this was mainly positive.  She also carried out a review of the home' documentation and found evidence of poor record keeping and of ignoring the service users comments.  The records showed she maintained a failure to keep care plans under review and failures to implement a risk assessment, and to follow up on weight loss for a specific user.

32.	The records showed that for one user AM, a diabetic, his medication had apparently been increased because SK had informed his consultant that he was having more his seizures.  The records showed no evidence of any such increase in seizures.

33.	She also had concerns about the treatment given to KK after a fall. KK had fallen at the Friday club and been returned home early complaining his back hurting. He had evidence of a marking on his head. SK had been told and she directed KK should be put in bed and monitored every hour over night.  The next day he went to hospital where he was discharged with some painkillers and no X-ray having been needed. Ms Ahern considered that there was an unacceptable delay in KK getting medical attention and there was a discrepancy in the home’s records of when and how he went to the hospital. 

34.	She also told us about BW following his release from hospital and return to the home.  Ms Ahern considered that SK had added information to the daily records after BW's death to suggest that SK had asked BW twice on consecutive days if he felt alright and he had indicated that he was.  Two staff told Ms Ahern that SK had added the entries after death and Ms Ahern said that the records tended to support this. Ms Ahern's overriding point was that inaccurate records put users at risk.

35.	When cross examined Ms Ahern accepted that when SK had taken the home over in December 2005 that there was 30 outstanding statutory requirements and the home's rating was poor. She was willing to accept that so far as the fire doors were concerned SK might have explored auto closing doors.

36.	As to matters arising from her first inspection and the complaint Mrs Ahern accepted the complaint upheld as to food was in regard to the recording of it but the comments related also to the fact that the food was own label brands and there was no fresh vegetables. On the day of the inspection she accepted it was the manager’s responsibility and not SK’s to ensure drinks were available.

37.	She accepted that no action had been taken as to Ms Barnes’ complaints and felt with hindsight action should have been taken. She accepted at the inspection no medication issues had been discovered. She did remember SK saying there were problems with Mr. Jordan, Ms Barnes partner, coming to the home smelling of alcohol.

38.	She was questioned about care plans and taken to the two in the bundle. She maintained both were not of an acceptable standard as they were not person centred. She said that although not in the bundle she did see on inspection care plans which were not satisfactory. She said that one member of staff told her she had been instructed by SK shortly on joining to write care plans for a number of users who she did not know sufficiently well to carry out the job effectively.
 
39.	She said on coming back to work that she thought complainant Ms Chouhaib had been dismissed for complaining to CSCI and did not know she had been dismissed for allegedly swapping her Christmas day shift and allowing an unqualified member of staff to take responsibility for drugs that evening.  She also remembered hearing that Ms Blake could not be appointed a senior carer because of her conduct. 

40.	She was asked about a complaint that SK had incorrectly dealt with a patient with a pressure sore. Having reviewed the papers she accepted that the papers suggested there might not have been such a sore. This allegation was then with drawn

14th June

41.	Ms Ahern accepted that she had not investigated issues reported to her and had passed them on to the safeguarding system with the police being responsible for gathering evidence and taking statements. She only interviewed the original complainants in June following the closure of the home. 

42.	She agreed that she was making no allegations arising from CSCI inspections around the misuse of medicines. She said she had not considered the individual social services reviews of the service users until they appeared in this bundle.
 
43.	She accepted that the weight charts did not show any material weight issues and she said no point was being made adverse to SK when this was reported to the safeguarding meeting. 

44.	As to Angela Grants' letter she had left it to the police to question her fully. She accepted that it appeared Ms Grant had not told the truth to CSCI or the police about the reason for her dismissal. Ms Ahern though considered that the home failed to have sufficient robust recruitment policies.  If they had Ms Grant would not have been able to start work until suitable references had been obtained. 

45.	As to her interviews of staff she said all staff seen after closure were introduced to her by Joan Morse as CSCI had no contact details. This was not ideal. All seen knew the home was closed. She accepted that there was an issue of credibility with each member of staff and with each of the managers but she thought it was difficult to see that all were wrong. The issues raised by each were consistent.

46.	She accepted some of the residents could and did have a level of independence such as visiting cafes, riding on buses and going on holiday together and trips to London. However her judgement was that the overall culture was one whereby SK controlled all that happened in the home. 

47.	She said there were issues around alleged financial abuse. She accepted some did control their own money and that when the issue of money management had been raised with SK she had taken steps to open bank accounts for the residents and that this was a long and difficult process. The processes in place were open to abuse by SK.

48.	As to inaccuracies in the records she was taken to the issue of Mr. M and the treatment for his diabetes. She accepted she did not know of his visit to the GP, his refusal to write a prescription as he had not heard from the consultant or the subsequent appointment with the consultant who had then increased the dosage. However the records initially seen by her she maintained supported the view that SK had reported an increase in his seizures and there was no evidence to support this.

49.	As to KK's fall she said her complaint was that he should have gone to hospital on the day of his fall. She also said the documentation of how and when he went to hospital on the next day was confusing. She could not say which version SK's or the staff was correct.
 
50.	As to BJ's discharge from hospital she accepted that his weight chart showed he had made a small weight gain after discharge back to the home. She hadn't looked in the daily diary nor seen the page in the care plan dealing with the need to ensure B did not choke when eating or taking medication. Her point was that there appeared to be no risk assessment carried out or documented. 

51.	As to the matter of a user being woken by others at night. She agreed she had not seen notes of a residents meeting when this issue had been addressed.
 
52.	She was then asked about V's death. She said the issue was that it was totally unclear what had happened on that afternoon and whether someone from another home had been called in and had administered treatment to the user. She accepted there was nothing inappropriate about either staff being on duty that afternoon. 

53.	As to the facts around the “wardrobe” allegation she accepted there was only the word of certain staff that this had occurred. 

54.	She accepted that on the inspections in both September 2007 and April 2008 residents had access to both hot and cold drinks and that bedrooms had been inspected and that there was no evidence of radiator controls being removed and indeed radiators were found to be warm. 

55.	As to her interviewing of the users with advocates. There had been some discussion about the need to deal with users who had very limited verbal communication skills.  Ms Ahern considered she knew the residents quite well from her inspections and carried out the interviews professionally. She said that the users were told that they were being asked about the home closure. She did not know why the recommendation that family members should be present was not acted on. She said that consent had been sought verbally but she accepted that no consideration had been given to individual's capacity to consent. They had been seen at the end of the day when they returned from the day centre and because this was convenient for the advocacy service.  She had seen resident’s questionnaires at inspection and agreed that information in them was inconsistent with that in some of the interviews.

56.	She accepted that CSCI had not spoken to the day centre or any professionals who came to the home. This was left to Birmingham City Council who reviewed each resident as part of the process. She agreed that relative’s feedback was mainly positive.
 
57.	As to SK hugging a resident she repeated that this was about behaviour management and that it might be appropriate to hug him if he were upset. SK had misunderstood her comments and advice.  She would expect clear guidelines to be in place for the protection of staff and users. 

58.	As to her views as to suitability of SK to work with vulnerable adults she said that initially she thought that with a good experienced manager she would be a suitable proprietor but as the issues developed she now was clear that she was not suitable to work with vulnerable adults in any capacity.

Day three 15th June. 

Jane Rumble

59.	Jane Rumble is a regulation manager of the Care Quality Commission. Previously she held the same role for the CSCI and in that capacity was Ms Ahern's line manager from December 2005. She told us on registration it was a condition that SK employ a manager as the registration procedure demonstrated she was not a fit person to manage the home. The documents before us did not disclose such a condition.  Ms Rumble set out the history of the engagement of CSCI and mirrored the evidence of Ms Ahern.

60.	She was asked about the issue of consent in respect of the interviewing of service users in June 2008. She confirmed that there had been an internal discussion as to this. She told us that each was verbally asked to consent to the interview and the individual's capacity was presumed unless something arose which would suggest to the contrary. 

61.	As to medication she reminded us that although there had been no evidence to back up complainants’ issues on medication there were serious shortcomings found in the pharmacy inspection and major requirements were made to ensure better control of drug administration in the home. She thought it was the case that the audit had shown a discrepancy between the quantities in the home and the drugs which the records showed had been administered. She pointed out that SK herself acknowledged that some drugs were not in their original packaging.

62.	She accepted that the police had recognised that there were major issues on the credibility of some of the complainants and that the police had decided no action was required.  She accepted that it was CSCI who decided to institute the Section 20 proceedings and the rest of the group had not shared the view that immediate closure was necessary although all had agreed systematic abuse was taking place. She accepted that the minutes suggested that 10 days before the decision was made there was agreement that there was no immediate danger to residents.  However she said the picture built up as the result of the ongoing inspection and it became apparent that there was sufficient evidence to corroborate the main concerns.

63.	 She told us that she had made the decision to refer the matter to POVA although her line manager had the ultimate sign off. The decision was made because in its view CSCI did not want SK to be able to work with vulnerable adults again. They considered there was evidence of systematic abuse by SK of service users. 

Sheree Brockie (Morse)

64.	We had a 15 page statement of Ms Brockie together with a statement she had made to the police in April 2008 and a short two page statement she had made in connection with SK’s appeal against the section 20 notice.

65.	Ms Brockie was employed as a care support worker at the home from September 2006 until April 2008 when she alleged she was dismissed for making a complaint to CSCI.. She is an experienced care worker with NVQ level two and had started a university degree. She worked at night on her own and occasionally during the days to cover for absent staff. 

66.	She was responsible for making a number of complaints to CSCI from 1st February 2008 until the 2nd April 2008. In her first complaint she raised concerns at SK shouting at a service user, no hot water for certain rooms, a service user being charged for the purchase of a piece of furniture, and false recording of certain documents. 

67.	On the 26 February she complained about the fact that SK was on holiday and no manager was on call. She agreed that it was wrong for her to have told CSCI that there was no person on call. She knew that there was a member of staff on call but her real complaint was that that person had just been recruited and she had seen her with 5 visitors in the house. She accepted this was part of her evidence gathering against SK. She accepted she had not raised the mop incident. 

68.	 On the 11th March she phoned to allege a service user had been threatened with a mop, that staff were being made to falsify records, and that a resident had on occasions being given an extra dose of medicine.  She stated that she thought the extra medicine might come from a home run by SK daughter. She maintained service users were being shouted at by SK and she bribed them with takeaway food or taking them shopping. 

69.	On the 14th March she called further to say that SK had removed a service users records after she had died and that she had told a member of staff to dry the private parts of a male service user with a hair dryer. Finally she telephoned on the 27th March to complain she had found 4 strangers in the lounge of the home and despite complaining to SK no action had been taken. 

70.	In April 2008 CSCI interviewed her and she repeated many of these complaints and on the 16th April she provided the statement to the police. As to why she had not make complaints to CSCI when incidents occurred she responded that she passed information on as she remembered them. So she accepted she did not report the mop incident to CSCI when she first telephoned them. Similarly she had not remembered the push on BW or the shouting at VG. With some she wrote a report and forwarded it to CSCI with others she verbally reported the matters from memory.

71.	She said she had been dismissed by SK.  She said at the meeting which led to her dismissal SK said that they had to let her go and the reason was that she had talked to CSCI. An employment tribunal had concluded that she was indeed dismissed and had awarded her compensation. She accepted that at a staff meeting she had said she had no concerns about the home but did so because she felt SK would bully her if she spoke up.  She felt all she could do was to complain to CSCI. She denied that she had any personal vendetta against SK but she did not want to see her running a care home again and she didn't want to allow her to bully staff again.  

72.	She told us about the mop incident. She said the service user had lost his temper and she had seen SK storm of with the user into his bedroom. Two staff members Angela and Rehana were in the room. SK told her "get me the mop stick". She fetched it and she maintained that SK waved it in the user’s face and raised her voice to him. She said he was clearly very scared. The incident lasted for 5 or 10 minutes. She was positive that she had got the mop and denied that SK had had it all the time.
  
73.	She had a few days later put an asterisk in the margin alongside the day this incident occurred as the record whilst saying the user was upset did not describe the mop part of it. We were shown the mark in the margin. When asked why she or the other two staff members who included the manager had not intervened she said she was too scared and might have been threatened by the mop as well.

74.	She told us of seeing a female resident being pushed by SK and accepted that when interviewed that service user did not support the allegation. Ms Brockie said that the user would not be capable of remembering. She said BW had wanted to go out with another user and there was a confrontation about it during which SK pushed BW. She subsequently typed up a note at home about it some time later and sent it to CSCI.

75.	As to the purchase of a wardrobe for a resident and the fact that SK had asked the resident to pay for it, Ms Brockie said she had no personal knowledge of the matter. However the user had spoken to her about it on more than one occasion. She said she could not remember whether the item was a wardrobe or a dressing table but she had seen it in the user’s room. She said she did not know SK's son had paid the joiner and she had not seen BW go the bank to get the money to pay.

76.	She explained that Ms Ahern had contacted her to see whether she had contact details of other staff as there was an ongoing CSCI inspection. She explained she had little contact with her work colleagues as she worked nights. She did not see them socially but three of them had gone to see Rehana in hospital when she was very ill.  She thought she had merely passed on the numbers for Rehana and Angela. 

77.	She accepted she had not known that the hot water to one of the residents had been deliberately turned of to prevent the user hitting himself on the tap. She accepted that water temperatures were tested each month by the staff but maintained that on the day in question the water in two rooms was freezing. 

78.	As to medication she said that she had given medicine out but did not know what the medicine was. It was handed to her by the trained staff who were dispensing it. She could not say whether it was diazepam. She accepted that the user’s records did not show that the resident concerned was prescribed diazepam at all during the relevant period. Ms Brockie agreed that she did not know that SK had told the service user that his medication could be changed by his doctor only. 

79.	She also repeated her evidence that when SK was on holiday she found drugs in a draw in SK's desk. She said she took a photograph of these but accidentally wiped it from her phone when trying to email it to CSCI.  She accepted she had no evidence whatsoever to support her supposition passed to CSCI that extra drugs were coming from the home run by SK's daughter.  She also told us of the allegation that SK had given an additional dose of diazepam to a resident. She said SK had told her she was going to do this and it would calm him down.  She said that she had only ever seen this one resident being given extra drugs and relied only on SK telling her. 

80.	As to the crushed tablet Ms Brockie explained she had written her report about this incident at home on her own PC. She brought it back in to get the other staff to sign. She hadn't given it to SK but she had sent it some considerable time later to CSCI. She accepted that when she rang CSCI on the 26th February she didn't tell then about the missing medicine issue even though it had occurred a few days earlier.

81.	She said that she blamed SK entirely for this. She was the only one in the room and she must therefore have removed the tablet and crushed it.  She said that SK had said she would use a liquid form for the user to replace the tablet but she maintained there was no liquid form available and she thought this was another occasion when there appeared to be more drugs on the premises than there should have been. She didn't know however what the medication was nor did she know what was given to the user.

82.	She maintained she had felt bullied from very soon after she started work at the home. She felt bullied certainly from when SK had first shouted at her about the hot water. She accepted that at a supervision meeting 2nd June 2007 she had not raised any concerns but would have done if another manager had been in place. 

83.	The issue of false reporting falls into two categories.  First Ms Brockie said that SK would ask her to countersign financial documents about which she had no knowledge or evidence. She thought that SK was being fraudulent about financial matters relating to users.  She pointed out she had no access to financial records and had not been asked by Ms Ahern to identify any. 

84.	Secondly she maintained certain records about users were fraudulently filled out. She cited the case of RH's foot and maintained that SK had directed her to say in daily record that something had fallen on it.  Records shown to her showed that the user was suffering from gout and was receiving medication for it. She could not point to any document showing she had complied with the alleged order. 

85.	When she had first joined the home the system of day recording was using a pink sheet. She maintained that SK directed her to make a minimum report on them. This seemed to be a standard "x slept well through out the night". After a CSCI inspection and on Ms Brockie's suggestion a hard back record book was kept and slightly longer descriptions went in usually detailing when the user went to bed and woke up. Occasionally a fuller entry would be made if something unusual had occurred. She maintained that SK insisted that she filled in the report at around 5 am each morning so that the waking up time was a guess. She also maintained that SK directed  what was to be put in the record.

86.	She maintained she had not seen a direction issued by SK to all staff as to the content and style of daily reports nor a minute of a staff meeting, which she did not attend but where she had signed the record of it the following day.

87.	She told us of a night when the house the other side of the road had caught fire.  She said she was not allowed to make a proper report of the fire in the notes. She accepted there was quite a lengthy note of the night and the fire. She said she was not allowed to record the fact she was locked out of the house. 

88.	She was shown a note in the records of a night when R would not sleep and when it was recorded that the screeching door of his bedroom had disturbed many of the users. She did not know of a users meeting two days later when the night in question was discussed and no residents complained they had been disturbed.

89.	As to the issue if RH’s foot she accepted that SK was on holiday and that her initial concern was that she could not get access to R's painkillers which were in a locked draw in SK's desk.  She accepted that his medical records showed that RH's painkillers had run out. She also accepted she did not appear to have been on duty on the day that the issue had arisen.  

90.	As to PG and the dentist, she accepted that SK had gone on holiday on the 3.3.07. She said SK knew that G had a bad tooth ache and maintained that SK had known about the problem before she went away and had said that she was arranging for him to see a dentist.

91.	She told us that she was responsible for getting breakfast ready. She said the quality of food was poor. SK brought the cheapest brands and only allowed three tea bags to be used in a very large pot for 11 service users. When on one occasion she had used 4 she was reprimanded. 

92.	She told us that on one occasion a large amount of confidential information was left outside the home and she had taken a photograph of it. She denied this had been down to Rehana removing some from the home.  

93.	She had seen SK shouting at VG because VG had made a racial remark to a staff member. VG had been very upset and cried for a long time.  One of the examples of VG’s distress, was that she started wetting herself which she had not done previously and the daily log showed an entry evidencing this. She said that VG was still upset a week later.  She was shown the daily record completed by a staff member and she said it was not an accurate record of what had happened. 

94.	On the evening VG died Ms Brockie said SK lied to her by not telling her V was dead and when she went to record that VG was in hospital VG’s notes were missing. 

95.	She maintained her statement that she had been instructed to dry AMs groin with a hair dryer and that she had seen KS use the dryer on him in this way on a number of occasions. She said she had also been instructed to use a cream for AM’s ear onto his groin. It was only when the new manager said it was the wrong cream that she stopped using it.

96.	She said one night she came into the home and found 5 young men sitting in the lounge eating pizza and drinking beer. The two Ukrainian staff members were with them. She reported this to SK and thought the staff should be sacked. She did not know that SK had disciplined them. 

Evidence of Wendy Smith

97.	Ms Smith told us that she was a crisis advocate meaning she acted for clients at time of crisis such as safeguarding issues. She had not met SK or residents before the 29.4.08. She had seen SK give an inappropriate hug to a resident. The resident was very upset by the closure but she felt the manner of the physical contact was inappropriate. 

98.	She told us when she got to the home that morning around 10.30 the home was in chaos with people everywhere. She met the four residents she was to be the advocate for.  Whilst her service did not assess capacity she was trained in mental health issues. She was satisfied that all four had capacity to be interviewed. They were capable of making decisions if the information was put in a suitable way. Resident KK originally had not wanted to be interviewed but ultimately he agreed if Ms Smith was with him. He refused to use SK's name at all referring always to her as "her". He would name other staff.

99.	She said that resident MF was a leader and was forcible in his views. He was in her view consistent in his evidence.  BJ did say in interview that he was frightened of SK.  She agreed in the social services interview K had described himself as sad but only in interview with Donna Ahern.

100.	As to M's interview she confirmed he said no more to each question than was recorded. On medication matters outside of the interview he had said that SK wanted him to take more medication. She said he was very concerned about other residents’ money. He had said that with the issue of BW's wardrobe the gaffer (who was known to him as an instructor at college) came in and fixed the wardrobe for free but SK had gone on and charged her £100. He also said others paid to go in SK car but he did not. They all had to pay £5 for cable TV. 

101.	She agreed that BW said no one had pushed her but she did say she was frightened of SK.

17th June day 5.

Elaine Day

102.	Ms Day was the other advocate involved in the closure of the home. She had been to the home in all on three occasions including getting an initial briefing, attending on the day of closure and returning to collect residents’ belongings. She had seen SK three times. The initial referral had come from SK because of fears that the day centre might close and that two residues were getting insufficient stimulation.

103.	As to PG's hearing aid with hindsight she thought SK been slow to sort this out as it was all resolved at Vesty Road within two weeks. She was taken to PG's medical records which suggested that SK and the home had been working with the GP and two hospitals to get the issue resolved. She accepted that this appeared to be the case but the home had never told her any of this. She was surprised about the hospital appointments 

104.	Ms Day said J had repeatedly said that he hated SK. He had found the police questioning too complex. 

105.	Ms Day told us of the complaint made by SK to her employers about her witness statement. She said that SK had said to her chief executive about a user "he does love me, he calls me mummy".

106.	She told us of a user’s love of Aston Villa and how she had expected this to have been fostered in the home.  She was taken to records which showed the user had attended some matches and had Villa mementos in his bedroom. She said that user said he hated SK and was not going back. 

Robin Jordan

107.	Mr. Jordan was the activities co-coordinator at the home and the partner of Pauline Barnes.  He worked in the home from June 2005 until September 2006. He did not get on with SK. In August 2006 he raised a grievance as he considered SK was treating him unfairly. He wrote to SK and copied that letter to CSCI. 

108.	He maintained that SK set traps for the staff for instance by putting food in a certain place and then checking to see if it had been moved and hence whether the cupboard had been cleaned. 

109.	He said that the fire doors were propped open and repeated matters he had heard from others. 

Mrs. Barnes

110.	Mrs. Barnes has been employed in the care sector for the last 17 years. She became the manager of the home in May 2005. Things changed she said from the home being a happy place to work in to her life being made a nightmare by SK. As a result she resigned from the Home and wrote a long letter of complaint to SK and copied this to CSCI. 

111.	She had in the past been responsible for the food shopping but increasingly SK took this role from her.  She maintained that SK bought cheap supermarket own brand food and little fresh vegetables. She tried at least on one occasion to serve food past its sell by date. 

112.	Mrs. Barnes said that she had heard rumours about the fact that SK had paid too much for the home and she maintained SK had told her that the bank had refused her more money when the costs of installing a new fire escape and refurbishment were more than she had anticipated. She accepted she had no idea how the refurbishment had been financed. 

113.	Dealing with the specific allegations she had made. As to the wardrobe she accepted that she had no real knowledge of this allegation. She could not remember the furniture being purchased.

114.	Mrs. Barnes she said SK came in with a coat saying it would fit BW. She agreed she had no idea whether BW had paid for it. She said BW did have a bank account and that then a finance record would be available for it. 

115.	She agreed the suggestion that SK had threatened to put a resident out arose over an issue of someone urinating on a bathroom floor. She said that SK had told the user he would have to have a potty in his room. She thought this was inappropriate. Asked if SK had said commode she said it would not have been inappropriate but accepted the user might not have understood the word.

116.	She could not remember who SK had threatened with no food if he refused to empty the dishwasher. She agreed that all were encouraged to help around the house. 

117.	The allegation about changing users’ forms involved a user who had said in a questionnaire that she would like a steak. Mrs. Barnes said that SK had directed a member of staff to sit down and rewrite the form.  She said she was in the house but not in the room at the time. She could not remember when this had happened and she had not heard the conversation herself. She could not explain why SK would have objected.

118.	Mrs. Barnes said that SK directed staff to show physical affection to the users. She encouraged them to hug users and kiss them on the cheek. She said this was said at a staff meeting and there would be a minute of that meeting. She said that the staff did not agree. 

119.	She could not remember any details of the allegations as to medicines now. Similarly she could not remember the issue of SK threatening to evict a resident. She accepted she was not there when any such threat was made and was relying on what she was told by other staff. 

120.	Before she resigned Mrs. Barnes had been on holiday. Her daughter had telephoned to say that she had seen Mrs. Barnes job advertised in the job centre.  Mrs. Barnes got herself a new position and then resigned.  When she did so SK asked her not to leave. 

121.	It was part of the condition of her registration that SK should provide a consultant to support Mrs. Barnes. A consultant was put in place and she would meet up with Mrs. Barnes once a month. She said the consultant knew of her concerns. They had jointly reviewed and updated the care plans. Changes had been made by separating the health care plans from the care plans. She was happy with the supervision she had from the consultant. The consultant had said Mrs Barnes should speak to SK about the issues which worried her. She referred to the notes of supervision which supported her account. 

Day 5   20.6.11
 	
Rehana Muzamel

122.	Ms Muzamel was the manager of the home from July 2007 until she left through ill health in November 2007. She could only appear before us until 1 pm as she had an appointment at the Royal Marsden.  She has a rare form of cancer and her treatment has affected her memory.  She signed the statement for this Tribunal on 5th April 2011 but she had made statement to the police in April 2008 but by then she had started treatment for her condition. 

123.	She told us that she had had no contact with the staff at the home after she left save that three of them, Angela, Samantha, and Sheree had visited her in hospital in December or January 2008. She had spoken to Sheree on the telephone sometime near the end of 2009. She never had met the staff, who were in the home before she joined. She had not discussed the home after she left with any one because of her health problems.

124.	She told us that RH would often be difficult to get out of bed. He needed affection to get him up and SK would sometimes lie beside him on the bed and she would hug him and kiss him. She had seen this happen a few times. She said it was SK's way of comforting him and he only responded well to her. She had never seen her kiss him on the lips.  She said SK was close to some residents and showed AM affection.

125.	As to the mop incident she could not remember what led to the incident but she had gone to AM’s room with SK, Angela P and Sheree and RH. She was insistent that SK did not have the mop with her and had sent one of the others to get it.  She said RH and the three staff members were all scared at SK's outburst. She said SK continued shouting at him for a long time, none of them attempted to intervene. 

126.	She said she saw SK shout at other residents especially V, B and K.  She thought this was because SK got frustrated with them. They were the less verbal users.

127.	She said she was present when SK shouted at VG about the shoes. She said she was scared at the shouting. She had recorded the shouting on her phone but had during her illness deleted the sound record. She said it was very distressing VG kept crying and saying "mummy please".  She also said she was mummy to AM and RH. 

128.	She said that she was told by other staff that B had paid for the new wardrobe.  SK had left her money to pay the carpenter and remembered something about the receipt. 

129.	She described the atmosphere in the house as poisonous. It affected all the staff and residents. She was not allowed to communicate with any outside agencies. Even though she was a risk specialist SK had brought in standard assessments from her daughter’s home. She told us of an occasion when SK asked her to get her husband, a policeman to come into the home in his uniform to tell RH he was being arrested. It was her way of seeking to control his behaviour. She was certain that this was meant seriously. 

130.	As to medicines Ms Muzamel told us that she saw lots of pills in a side draw in the office. They were in the cupboard when she started. SK would give resident MF extra medication. She said that SK would split a blister pack and insert an extra tablet.  She never herself saw extra medication being given. 

131.	She did not know the medicine types in the draw. There was lots of medication in it. She did not have the key initially but did after a short while. She said after the CSCI visit from the pharmacist the drugs were removed from the cupboard but she had seen SK giving drugs out of her bag. 

132.	She said MF got a double dose of medication to control his behaviour. She told us of the visit to the day centre when she had been told by SK to say nothing. She was convinced SK was seeking the manager’s support to increase MF's dosage. She accepted she did not know what medication MF was receiving, or any of the history with the GP or consultant. She did not know whether the medicine was prescribed on an “as and when required” basis.

133.	She remembered that Boots took over the supply in 2007. There was a returns medication book. She found lots of drugs in the cupboard when SK was in India. She agreed she did not report this to anyone. They were prescribed drugs. Other staff saw the drugs as well.   None of them looked at the drugs in any detail so she could not say what they were or for whom they has been prescribed. 

134.	She had tried to speak to Donna Ahern after the CSCI inspection and had telephoned her twice but she was away sick. She had not left a message because she wanted to discuss her concerns with Donna. She said that when SK had gone to India she had seen this absence as an opportunity to put new practices and procedures in place. If SK accepted them she would stay but if not she intended to leave. Unfortunately a few days later she was taken to hospital and did not work in the home again. 

135.	SK came to see her in hospital but made a number of allegations against her and in particular that her husband had stolen a training disk from the home. She said SK’s son had rung her in hospital pretending to be CSCI and demanded the return of the disc. 

136.	As to her interview for the post she said she was surprised only SK saw her. She had been asked if she had children or planned to have them. She had filled in a questionnaire. She had received a telephone call from SK calling her daughter and offering her a job.
She did not have a CRB check before she started work 

137.	She said the home was always very cold at night and remembered one room were the radiator temperature gauge had been removed. A resident was wearing his coat in the bedroom because it was so cold. She had not seen SK removing it and did not know that a resident had himself removed a gauge. 

138.	She told us that she could not sign a document without it being agreed by SK. She said SK wanted all reports of incidents to make them sound less severe than that which had actually occurred. She remembered an incident when RH threw furniture and the seriousness being down played. She agreed forms were sent to CSCI but these had to be approved by SK. If she did speak to another professional SK would tell her off. She said it was the norm to be told off but could not remember specific issues. 

139.	She told us that KK didn't like going out to the shop but was made to do so by SK. She hadn't seen this herself but other carers had told her. SK would shout at him frequently if for instance he came into the kitchen. 

140.	She said that SK would buy things for residents and limit their choice.  She would say "look what mummy has bought for you". She could not remember any of them shopping on there own and no plans were made to enable them to do so.

141.	She maintained that the food choice in the home was very limited. She told us of a resident who was diabetic who was not given a pudding because of this and how she had gone out when SK was away and bought him diabetic ice-cream. She denied he was given a range of sweets but accepted he might have had jelly.  Both the choice and amount of food was limited. SK would tell staff off for putting too much margarine on toast saying it would kill her residents. 

142.	Ms Muzamel told us that staff were threatened frequently. She did not know of any dismissed but she said SK would threaten to report them to POVA so that they could not work in the care industry again.

143.	She knew that VG had been on a trip to London and Buckingham Palace. She knew all the street names. In respect of the allegation that SK had told her to take VG to the pub to prevent VG talking to the CSCI inspector,  she accepted that CSCI on their visit spoke to VG about the trip. She said however they had gone to the pub together that day for lunch.

144.	She told us that she had taken VG to the doctors and when there VG had complained that her new shoes hurt her.  When she came back she maintained she spoke to SK and told her about the shoes. She didn't ring the hospital to sort the issue out because SK would have gone mad with her. 

145.	SK went mad because she received the letter in which mention of the shoes was made. She denied there was any discussion with SK about why Ms Muzamel had not sorted the problem out. She said VG was very upset and crying. She kept saying "please mummy do not throw the shoes in the bin". 

146.	She had not seen SK smear ketchup but SK had told her that she had done so to see if the staff were cleaning properly.  She was insistent that SK had screamed at her and grabbed her wrist and throw a cloth at her. She would do things in front of the staff to undermine her.

Other evidence on behalf of the SOS

Statement of Angela Pennant

147.	Ms Pennant was a carer at the home from 2001 until its closure. She described SK as kind to the residents but alleged she would shout at them if they misbehaved. She said she was told not to record concerns about BW’s finances by SK. She said that SK did not encourage independence. She repeated the allegation about BJ’s wardrobe saying that SK had bought a second hand one for £80 and then charged her for it. She maintained the food was scarce in the home.
 
Jennifer Downes 

148.	She gave a response to questions from CSCI. Her responses made no direct allegations relating to misconduct against SK.
  
Samantha Blake

149.	Samantha Blake gave a statement to the police and answered CSCI questions. She complained that food standards and quantity had deteriorated. She repeated the allegation about the wardrobe and maintained she had heard SK tell BJ to go to the bank and get the money for the wardrobe. She said that B told her she had to pay £120. She said she had been in the kitchen when SK pushed B. 

150.	She alleged that SK was over medicating MF. She said that old medicine was not returned to the pharmacy and she had found this excess medicine in SK desk. She alleged that one resident’s cream was used on another. She said that SK was not on duty on the day of BW’s death and the entry had been squeezed in. She also said that VG had told her that SK had thrown her shoes down the garden and that Ulana had witnessed this. 

Joyce Blake

151.	Joyce Blake, Samantha Blakes’ sister, worked in the home for 13 years leaving in November 2007. She interviewed by CSCI. She said that the home was not well run and that SK could not manage it. She repeated the allegation that SK shouted at residents and said that KK had told her about the potty incident. She said SK trying to be stern but a bit over the top. She was not a bad person just didn’t know how to do the job. She maintained SK would tell the staff that she would report them to CSCI. 

Jean Moran

152.	Jean Moran also interviewed by CSCI. She worked in the home for 16 years before leaving in December 2006. Her answers did not make any mention of the issues of misconduct relied on. 

Ulana Yurejeva

153.	Ulana Yurejeva also was interviewed by CSCI. Other than to say the food in the home was cheap and that its quality was not good her answers did not relate to the issues of misconduct. In answer to the question about meeting service users’ needs she said “everything is fine here, no concerns”. 

Halima Choahaib

154.	Halima Choahaib also was interviewed by CSCI. She said that the quality of the food, management and owner could be improved. She described SK as “nor right in the head, having no heart, feelings or compassion.”  She maintained SK would dictate what she was to write into the records. She alleged that SK stopped residents buying clothes and took that over and that B was unhappy about this.  She alleged that residents were shouted at. She maintained that SK made residents pay for their lunches at the centres. She repeated the allegations about over medication and said SK had said in her presence it was “to shut them up a bit”. She repeated the allegation about B’s wardrobe saying the price was £180 or £200. 

Aintonette Ifill

155.	Aintonette Ifill had been employed for 1 year and gave answers to CSCI questions. She described the food as being “cheap”. She gave no first hand accounts of any of the allegations of misconduct. 

Jaswinder Sharma

156.	Jaswinder Sharma both made a statement in these proceedings and answered CSCI questions. She is a scheme manager for a housing association and has some 20 years experience of providing care in the community. She worked in the home from early 2007.  She used to work at night. She said that SK would tell her to turn the heating off at night. She complained that SK was unsympathetic when she reported BW’s death to her. She made a series of allegations about the amount of food in the home and SK’s refusal to accept that there was insufficient food. 

157.	She told in her statement of an occasion where SK had roughly applied ointment to a user’s bottom with bare hands. She said she would hug and kiss RH on the cheek and that SK told her not to tell Ms Ahern about this. She said that with VG she would call herself “mummy”. Her statement also dealt with SK ringing her new manager and telling her that Ms Sharma was a “liar, not trustworthy, dishonest and a bad person”. 

Clare Groves

158.	Clare Groves, who is Jaswinder Sharma’s current line manager, made a statement in these proceedings to confirm the issue of the telephone conversation she had had with SK about Jaswinder

Susan McCann

159.	Susan McCann also answered questions put by CSCI. She was employed from April 2002 as a night supervisor. She said her first impression of SK was that she was very caring and got stuck into cleaning. She thought communication could have been better. She said she had no concerns how residents were spoken to but did give support to the issue of SK controlling input into the records. She gave positive examples of SK dealing effectively with users, who were upset. She never saw any evidence of abuse. She repeated the allegation that Rehana had found medicine in SK’s draw.
 
Sharon Muxworthy

160.	Finally we had a statement in these proceedings from Sharon Muxworthy a project manager employed by Birmingham City Council’s learning disability service.  She had attended the home on the day of closure to support the residents. She said that when she looked in the fridges in the home there was the bare minimum and all food was Asda smart price range. She also gave evidence about finding the breakfast had been laid out before the resident’s came down with just one weetabix placed in each cereal bowl).

161.	She also said she saw SK hugging the users in an exaggerated way.

The appellant's evidence

SK’s evidence

162.	SK had made in the course of these and related proceedings three witness statements which were long, detailed and very well presented. She confirmed each were true and supported them by oral evidence. 

163.	First she gave evidence about her finances. She purchased the home in 2005 with the aid of a mortgage secured also on her house. The home was a good business and there was good cash flow. The position changed radically after the closure of the home. The Bank now has taken possession of both properties. If the home had not been closed this would certainly not occurred. 

164.	She told us that she had repeatedly told the staff how important accurate record keeping was. She denied she dictated the contents of many of the records. She reinforced this after CSCI criticisms about record keeping. She denied she came in at 4 or 5 in the morning to ensure the night staff had written up the notes. She usually was in around 6a.m. and then worked until late. 

165.	She told us that after she had observed MF for a few months she was concerned that his medication was not regulating his condition. She looked into it and discovered it had not been reviewed for some 10 years. As a result his GP referred him on to a consultant who changed the medication and this was gradually increased. 

166.	She denied categorically any suggestion that she had any extra medication in the home.  She pointed out that the CSCI pharmacist had inspected twice and was satisfied all drugs which should have been returned had been. They found no material irregularities. 

167.	SK told us she was very fond of VG and thought of her as her mother.  VG called her mummy and she called her aunty. She said Ms Muzaman had not reported about the shoes to her when they returned from the hospital visit. She first knew about the shoe problem when she opened the letter from the consultant at around 11am some four days later. She said she told Ms Muzaman off because she should have resolved the situation. She denied she had got angry at all with VG and described a calm conversation with her. 

168.	She told us that VG had been in the home on the day CSCI inspected as she remembered VG telling Ms Ahern not to touch her books and she spoke to her about her trip to London. She then did go to the pub with Ms Musaman as this had been arranged for some time and had nothing to do with the CSCI inspection. 

169.	SK said she was not in the home when the issue first arose but was aware of it as soon as she walked in. She explained what then happened but denied any loss of temper by her with VG. She said that VG’s bed wetting was down to her having a cold.

170.	SK was not in home when VG was taken ill as she was out buying furniture but she rushed back and got to the home just as the ambulance was leaving. She followed it and returned to the home once she and been told that VG had died.  Helen a staff member who was there at the time wrote up the notes not SK and they had not been changed. So far as she knew they were correct. She understood others from another home had attended. 

171.	KK had been going to the Friday club for many years. SK had just got home on the night of BJ's death and received a call from the home to say that KK had had a fall. The staff member had been a registered nurse and seemed happy that KK was not injured. SK said she directed he be monitored closely over night. She was convinced that if the staff at the Friday club had thought his injury was of concern they would have taken him to hospital which was only some 5 minutes away.  The next day she had ordered a taxi for him to be taken to hospital. A member of staff came in especially to escort him. 

172.	BJ began to refuse to go to the day centre saying he was ill. In transpired that he said he wanted to retire as he was 60.  On the early evening of the 6th March 2008 SK was leaving the home and spoke to BW who was outside smoking. He said he was poorly but declined SK's offer to take him to the doctor.  The next day he saw SK and said he was poorly but later in the day he went for a walk and looked well. 

173.	SK had arranged for a carpenter to fit a wardrobe into BW's room. She told Ms Muzaman that this would happen when she was away in India. When it was fixed Ms Muzaman rang SK son who came and paid the carpenter for it. BW did not pay for it and had never been asked to do so.

174.	She denied that RH was over medicated. He received one dose a day and not 2 or 3 as suggested.

175.	The previous day SK had been told by Sheree that a new mop head was needed. This was recorded in the day book. She bought one the next morning and was sat on the step trying to fix it when she heard a loud voice saying "no RH". She immediately went to see what was happening holding the mop.  A member of staff said RH had pushed her. RH looked very angry so she took him into the down stairs bedroom. She sat him down on the chair and she sat on the edge of the bed. Sheree and Angela were there as was Ms Muzamal. 

176.	She discovered that RH was upset because the staff had not allowed him to follow his routine of going upstairs after breakfast to put his shoes on but Ms Muzamal had asked Angela to go and get them. She said she explained this to them and told them they had let a resident down. She told RH he must not push staff. She said Ms Muzamal knew that a break from the routine resulted in RH getting angry as three days earlier he had thrown his lunch box in the bus and hit someone in the face with it.

177.	She was clear she had not shouted at RH but she had been firm with the staff.  If she had shouted at RH he would have got even more angry and violent. She was scared of what he might do to her. He was not afraid of her.  She accepted the mop was in her hand throughout. By the end RH was calm and went upstairs to put his shoes on. She did touch him at the end but did not hug him. She pointed out that her note of the incident did not show it finished with her hugging RW.

178.	SK accepted in her first statement she had not remembered this incident and had only done so when she and reread the communication book and this had reminded her of buying the mop. She said that so far as she could remember she sat on the edge of the bed or might have been standing up. She had the mop with her in her hand all the time there was no room to put it down. She denied she was angry with R and said no one could challenge him.
 
179.	She agreed she had not put the asterisk in the margin alongside the note of the incident. She accepted that usually the staff on duty filled in the note of each resident for the time of the their shift that it was their job but that she had filled in this note because she thought it was her responsibility to do so. She accepted it was not a regular occurrence to do so. She also filled in the ABC behavior chart which usually is for others to do for the same reason. 

180.	She said the suggestion she lay on the bed with RH was disgusting she had never done this. She could not understand why if she had done this others had not seen her do it as only Ms Musaman gave evidence about it. 

Day 7.  21June 2011.

181.	As to the issue of heating in the house. She told us that except for the heating failure at Christmas 2005 the heat always worked. It had one central control downstairs which all staff could access. There was only one radiator cap which did not work and that was in JH room. She had gone to BQ and replaced it. In any event JH said he could control the temperature and was told to call the staff if he needed help.

182.	She said that she had taped over one switch outside the bathroom as there were two sets of lights with separate switches. She did so to ensure that if one set needed a new bulb the other would always work.

183.	She said the fire door in AM’s room was matter for him whose when he was in. She did not prop it open. The other door was left open during the day as residents and staff continuously went through it. She had ensured it was closed at night.  She had been advised this was acceptable.

184.	She told us that she bought the food from one of the large supermarket chains. She changed the food after she acquired the home by replacing frozen pies with home cooked food. Similarly she stopped buying fizzy drinks and replaced them with fruit juices. They could buy fizzy drinks themselves and they often did.

185.	She said that rather than she being aggressive to staff she was scared of some of them. She named Sheree, Halima, and Angela.  She said she did put them right when they were wrong. She gave an example when Halima accused SK of pushing her but that the night staff member who wrote the note of the incident did not support the allegation. She gave evidence as to the events leading up to Halima's dismissal namely that half way through her shift on Christmas day she rang to say Antoinette was taking over and would do the medicines. SK said this was unacceptable as Antoinette was not trained. Halima came in to do the 5 pm drugs run but not the 8 pm one. SK had to come into the home on Christmas night to check all was well. The next day she suspended Halima and she was dismissed.

186.	As to the issue of VG’s death and the records SK heard Helen and Sam having a big argument about what had happened. To try and resolve the issue she had made them write down what they said had happened. As a result they accepted the position that Helen had properly done what she should in the emergency. 

187.	As to Sheree and the crushed tablet SK denied she had ever shouted during this incident. There was a crushed tablet and only Sheree had the key to the drugs trolley. Helen was with SK and saw what happened. SK rang the doctor and the pharmacist about what had happened.

188.	SK said that CSCI told her she must not go to the home the night before closure. She went in at around 7a.m on the day of closure. There were by then some 12 social workers on site. She only was in the office and on the table outside through out the day. She was handing over all the records. She denied that she had gone to see Anthony or had kissed or hugged him. 

189.	SK explained that at her previous job with MIND she had some experience of adults with learning difficulties because some had mental health problems as well. She agreed she had never held a management position. She explained her understanding of what constituted a learning difficulty. 

190.	She told us that she told CSCI on registration that she was to be the provider. She could not remember if she said she would be working there. She had set up Parklands Ltd to purchase the house and confirmed that was it's sole function.
 
191.	She agreed that she and Parklands had given an undertaking that she would cease to have any interest in Parklands or the running of the home. She understood this to mean if the home was used as such. She agreed that she did resign as a director and sold her shares to her daughter. She acknowledged what had been said in her statements and her daughters in that respect. She accepted that in January 2011 she and again become a director of the company on the advice of her accountant. She was initially unwilling to explain the private reasons for so doing but it was related to the loans to the bank and the fact that her daughter was planning to emigrate to Canada. She explained that the company had failed to file it's annual return and Companies house was threatening to strike it off. Given the need to sell home and repay the bank she was reappointed a director. 

192.	She said initially she was going to be the owner/ provider but she became actively interested in the homes running and began to work in the home. She worked at night once in 2006 and then on occasions to cover for illness and holidays. She usually arrived at the house at around 6 am. She would not be there by 5 am.  She agreed some of the work force were in place when she acquired the home others were recruited by her. 

193.	She initially denied that the majority of staff had made complaints against her but conceded that this was the case. It was her case that they all had lied and conspired together. She accepted that the managers had never worked together but said the staff passed rumours around, which was why all knew of the allegations. A lot of the staff were close friends. 

194.	She accepted her case was that Sheree had resigned. She had never intended to dismiss Sheree at that meeting. The use of the expression “I must let you go" was in response to Sheree saying she had another job to go to.  She agreed that through out she insisted that Sheree had resigned. She accepted that the notification sent to CSCI signed by SK said that Sheree had been summarily dismissed.

195.	She maintained she had been shocked to read Rehana’s statement. She agreed Rehana had never been disciplined but she had spoken to her about issues. She said that Ms Barnes would have been the registered manager once she completed her qualifications.  SK accepted that Mr. Jordan had not attended the disciplinary meeting he had been invited to. She agreed that other than that he had not been the subject of any disciplinary proceedings. SK said she had disciplined Angela Pennant just before the closure on a medication issue. 

196.	SK said that Samantha Blake had resigned. As to the issue with the knife she was across the other side of a work top. She raised her hand with the knife. She was clearly angry. She pointed out that in Samantha's statement she admitted threatening SK. 

197.	SK was asked about the significance of Mr. Jisra statement. She said Jisra had been instructed by her first solicitors. She thought it was to look to see if Ms Grant's second professional and personal references were also forged.  She was shown a website page for a nursing home at the address Mr. Jinga said there was no such home. SK had no knowledge of this.

198.	She said that all the staff chatted and passed round rumours. She was scared of some of them. She said the fact that the staff were recirculating rumours was evidenced by the fact that some 80% of their statements were identical. She thought that all was going well until around Christmas 2007 and VG's death. Thereafter matters became very difficult.

199.	SK confirmed she had read all the social services reviews and was present through some of each review. She thought they were accurate. She couldn't remember if she had asked for any changes.  She agreed that the reviews suggested that KK could speak up for himself and this was correct but he could also get confused. You could put words into his mouth. Similarly with JH she did not believe he had said what Elaine Day recorded and she considered that evidence as false.

200.	SK said it was her case that she never shouted at service users. She agreed that a large number of staff alleged that she did and did so regularly. She said they were not telling the truth. She denied that she shouted at VG as alleged by Sheree. She pointed out that Angela Pennant was also at the incident did not say that SK had shouted.

201.	SK said she did not shout by which she meant raise her voice at staff. She told them off firmly. Those who alleged that she had shouted were not telling the truth. She was taken to an appraisal record of Sam Blake. She said that the writing was hers and an administration assistant Tania. The reference to shouting was a reference to Sam shouting not SK.  

202.	When asked about Mr. Jordan's grievance she denied she had ever shouted at him and was never aggressive. She thought the meeting referred to was in the lounge not the office and she would have had to stand up and walk to the table to bang it. 

203.	SK said the incident in which it is said she threw a cloth, shouted at Rehana and grabbed her wrist had never happened it had been made up. She accepted that if it had happened it would have been unprofessional and humiliating. 

204.	She agreed that Sharma worked from June 07 to April 2009 when she left. She had had a very good appraisal. SK said she had rung Anchor Sharma's new employer to ask Anchor why they had not sought a reference from her as the last employer. She wanted to tell them that Sharma was dishonest.  She had been dishonest in what she had said to CSCI. SK said she was upset and emotional. 

Day 8 22nd June 2011.

205.	SK agreed that there had been a cleaner when she had purchased the home. That person had become a carer and she decided the cleaning could be done by the care staff. She denied and said it was untrue that as alleged by Robin, Jaswinder and Rehana that she had laid traps to see it cleaning was being done properly.  She said the issue had never been raised by day staff with her.

206.	SK denied she had ever told staff to cut back on butter. When taken minutes of a staff meeting she conceded that she had said for health reasons staff should not put too much on. No users needed to be on a diet and but they did need to be supported to be on a healthy diet. She denied she had ever counted the fruit juice cartons. She said BW and KK always had sandwiches at night this was clearly shown in their records. If she had wanted to stop this she clearly could but had not.

207.	As to JH saying he was on a diet he was not. He could always go to the fridge. When taken to a minute she said that related to health reasons and not a diet to lose weight. She pointed out that this was Pauline's decision in the first few months when she was manager. She said the day centre was frequently telling the residents about healthy living.

208.	 She was clear that she had never ever kissed RH or AM on the cheek or elsewhere at all. She was taken to her first statement where she did say she had kissed R but this was an error. The statement had been prepared in 28 days was long and detailed and this was put down and agreed by her in error. 

209.	She denied the suggestion made by Ms Smith that she had hugged AM inappropriately on the day the home closed. It was untrue. She agreed the care plan did not say that AM did not like physical contact. She denied he gave her hugs. She was clear that she never gave any resident hugs on that day. Similarly she said Ms Muxwell's evidence was untrue in the statement she made about SK hugging a number of residents. 

210.	She agreed R liked hugs but understood there was a difference in using hugs as a comfort as compared with part of a behaviour management plan. She had never used it with R in the latter situation. The original care plan had said that R could be given comfort by hugging but on advice from Donna Ahern she amended this in April 2008. She thought this was wrong but accepted it might be appropriate. She told us of how upset R had been when Donna Ahern had refused to hug him when she left one evening during the inspection. 

211.	She did not accept that it was difficult to get RH up in the morning. She said usually the night staff managed to do this without difficulty. She said she had never laid on the bed with him to coax him to get up. Rehana was not correct about that. She pointed out that Pauline Barnes when manager had encouraged the staff to hug and kiss him and she inherited that. 

212.	As to the allegation she had pushed BJ in the kitchen. She said that Sam and Sheree were not telling the truth about this and that  she had never pushed B in the kitchen.

213.	In respect to the recording of notes SK accepted the pink sheets at night were very sparse. This was the practice she inherited from the previous owner and which was carried forward by Pauline Barnes. It was SK who effected the changes and tried to improve the records. The early minutes didn't show this because they were meetings run by Pauline. She composed checklist from a form she had from another home.  It was on the notice board and had been given to all staff. She accepted she pushed for more information following CSCI inspections. She denied she had ever changed or added to reports in any way and did not instruct care workers on individual entries. 

214.	As to the events on BW’s death she agreed that daily records were usually completed at between 8-9 for the night shift, between 12-2 for morning shift and either 6-7 or 8-9 on the afternoon shift. She accepted that on the 6th March she was only shown as working from 6am to 5 pm. She did however stay in the home much longer. She repeated that she had gone shopping in the early evening and had met B outside smoking and he had not wanted to go to the doctors. She said that the asterisk on the entry on B's record for the 7th March was not added by her. She agreed that Jawinder’s entry recording the death was put in some time after the death and that therefore SK’s entry could have been added after B's death.  She denied however that it was.

215.	SK agreed that B could go shopping and choose clothes for herself and that in the past B had been married and lived independently. SK said she did not know that sometimes B felt restricted in the home as she and never told her that.  She denied she had bought a jumper for her or any other clothes. The statements by B herself and the staff were untrue. 

216.	She said B did have her own bank account. She also had a money box in the home and kept the key to it herself. There were records shown to her of the transactions relating to the money box. She agreed it was likely that all money coming into the box came from her bank account. SK accepted she would on occasions buy clothes for residents but only if they asked her to do so. If they didn't like them she would return them. She did this for A and G specifically.

217.	SK agreed that provided his food was cut up AM could feed himself with some difficulty. She denied that she ever fed him.

218.	She said she had always agreed that she was called Mummy T by VG. It had no connotations and in return she called her Aunty. She did not ask or get other users to call her mummy. She was shown the notes of the interview she had with disability advocates when she complained about the contents of the note of that meeting. She could not remember saying that "he calls me mummy". She said that a resident would mimic VG when she said "mummy Tina". RH could not pronounce mummy and AM did not call her that. She accepted it would not be nice for a proprietor of a residential home to be called mummy.

219.	As to the Fire doors she accepted that there were no papers to show that she had received advice from a fire officer about keeping one door open throughout the day. 

220.	She accepted that CSCI described the kitchen window as broken which supported the views expressed by staff. She said it was not broken but difficult to shut.

221.	Dealing with the matters relating to food, its quality and quantity at the time of first CSCI report Pauline Barnes was still primarily responsible for the purchase of the food. The food was not in her view cheap quality. She did not remember it being primarily own label brands. She had never purchased loose corn flakes as described by Sheree. The average food bill at Asda was not £60-80 a week it was more. They started buying food on the Internet in 2007.

222.	She said the CSCI report on food in April 2008 was looking for reasons to criticise her. She continued to maintain the CSCI inspectors had not looked in the two freezers outside the kitchen. She agreed that users were not allowed by the cooker. This was the position she found when she bought the house. It arose she understood because of an accident which had occurred.

223.	MF did cook with her and B would peel potatoes. All made their own sandwiches for lunch at the day centre.  Her objective was to change the food in the home so that residents had a healthy diet. She was clear that there was fresh fruit every morning. She believed that because the day centre talked a lot about a healthy diet the users thought they were on a diet. She said that tea had been served in small pots on the table at breakfast. In the evening there was one large pot. She denied that she limited the tea bags to three.

224.	SK remembered something about Pauline and Robin going out and buying a coat in 2006 with B. However she was clear that two days before the home closed she had gone out with B and B had purchased a coat. She said that would be recorded in the inventory.

225.	In 2006 she said so far as she could remember A bought himself a TV. Other than that no furniture was needed in his room and he was not required to buy any. 

226.	She agreed that B and staff had suggested that B against her will had to purchase a wardrobe to go into her room. She agreed the wardrobe was fitted between the16-20 November 2007. She agreed that B's bank statement showed a withdrawal of £170 on the 6th December and there was no record of that amount going into her tin at the home. SK said that B was making payment to social services each month but she did not know what for. This withdrawal might have had some connection to this. 

227.	SK agreed the back ground to this alleged incident about VG’s shoes but said there had been no upset with VG when SK had thrown away the old shoes. She had two more raised shoes. She did not know that the pair being worn by VG were uncomfortable. She denied that Rehana had told her this when she and VG came back from the Consultants. The first she knew was when the consultant's letter arrived. She said she did not shout at VG and said that Rehana's account could not be correct as she would never have thrown away the new shoes and V would not have been begging her not to.  She said that the following day VG's brother came and VG clearly did not raise it with him as she would have if she had been upset.

Day 9 23rd June 

It was agreed that we would interpose the evidence of the three witnesses who had arrived to give their evidence.

Peter Haden

228.	Mr. Haden is RH's brother. His written statement showed he was a regular visitor to the home and had been for some 10 years. He was sure that his brother had been well cared for in the home and thought SK had improved the home since she purchased it. He had been surprised at it's closure and was also concerned that no one had shared concerns about it with him before closure. He had not seen CSCI reports and was surprised that it was so classified. 

229.	He said he had never heard a resident call SK mummy. He did say that she mothered the residents by which he meant she was very kind to them. He said that RH was less happy in his new home because it was a different environment and he did not have his friends there. He was in respite care for some 9 months with PG until a suitable placement for him could be found. 

230.	He said R still talked about SK and if he sees her type of car he says "Miss Tina". He said RH would hug SK and it was his way of greeting people. His verbal communication skills were limited. He could not hold a conversation but could express whether he was happy or not. He confirmed RH was not a morning person. He liked routine and he could get difficult and might for instance up turn a table. 

Mr. Martin

231.	Mr. Martin is a chiropodist who has been visiting the home and providing services to many of the residents for many years. He knew many of his patients very well indeed and had a good picture of the home and how it had changed over the years.  He said that he thought SK had made some good changes to the home. When run by the original owners it was relaxed and friendly but in fact over friendly. The staff seemed to be able to do what they wanted. He noticed when SK took over she clearly tried to change that old regime. The home remained friendly and relaxed but she made it more correct. He felt there was evidence that some staff, a small clique of about five, resented this. 

232.	He head overheard a conversation in the kitchen between five staff members and heard someone say" if she thinks she can change that she has another thought coming, we run this home". It was because of this he felt the need to come to the Tribunal and give evidence.  He did not know the name of the staff involved. Some staff reacted more favourably.  Other than this he had no problems with any of the staff.

233.	So far as his service was concerned SK made two important changes. Historically he had seen the users without any staff from the home being present. She changed that and a staff member was always there. She also put in place a key worker system. 

234.	He did remember Rehana she used to give him a list of those he was to see and their key worker. He went through a list of users he knew well. He said some would meet him and tell him what was going on as soon as he walked in the home. He had no doubt they would have told him if they were unhappy or if an incident had occurred. They never did. 

235.	Whilst he accepted RH would not be able to tell him he thought R would be able to tell one of the others who would have told him. 

236.	He remembered an incident about VG' shoes. At first he couldn't remember if this occurred before or after SK purchased the home. He did then remember it was after SK purchased. He said that VG had a pair of shoes which were worn out. He told VG and SK they needed throwing away. He had written out a letter to the hospital for them to make a new pair for her. VG had then blamed him for losing the old shoes and said she didn't like the style of the new ones.  VG was very loud and upset about it. He thought SK had a handled the whole episode very well. 

237.	He said he visited many care homes over the years of experience working with social services and Mencap. He felt that the home fell in the top half in terms of quality. 

Mrs. Nelson

238.	Mrs. Nelson worked in the home full time as an agency care worker between late July and early October 2006. Her written evidence made clear that she felt SK was a good manager and she did not see anything which worried her or supported the complaints made by some staff.  She was there when CSCI carried out it's unannounced visit in September 2006. She was very surprised CSCI had rated the home poor in March 2007. She was shown the requirements arising from that inspection and said none were apparent to her when working there.

239.	She was critical of many of the staff who she described as lazy but never thought they were vindictive nor heard them say they ran the home. She told us that SK would challenge staff who had not done what they were meant to and would insist they did. She didn't shout or raise her voice. The staff would moan under their breath calling her a bitch and a stupid cow. She herself would not have worked with them on a full time basis. There were close friendships amongst the staff and many had a go at SK. 

240.	Users did go to their rooms quite a lot but to do what they liked doing. They did go out a lot as well. The home was very nice and clean and completely different than the one she currently worked in. She was an experienced carer with some eight years in the sector. She said you could tell about they quality of a home when you entered for the first time from its atmosphere. Out of the seven homes she had worked in she rated this home as the third or fourth best. 

Resumption of X examination of SK

241.	B's discharge from hospital was on the 19.12.07. When asked about where the entry to show the danger to B of choking on his food SK accepted that neither his day records or health records showed this. However the communication book showed that his eating had to be monitored and that drugs needed to be administered to avoid this risk. She accepted that no risk assessment had been carried out because she said that she had spoken to the doctor at the hospital and was told they were still investigating the problem. She maintained she had told the staff orally.

242.	SK was taken to the day book which showed that G been to dentist on the 28.9.06 when she had noted he had a bad tooth and if it ached he would need to come in for treatment. She also agreed that on the 8.3.07 a carer had noted that G had a tooth ache and was given a pain killer. SK was reluctant to agree or disagree whether she knew this although she accepted that she was on the Rota as having worked that day and the following day before going on holiday. She denied ever saying to Sheree that she had made an appointment for G to go to the dentist. 

243.	She accepted that M had aggressive outbursts. She knew he was on Lorazapam and this was the same as diazepam. She agreed this was the drug staff accused her of over prescribing. She was shown a record of a 14day course MF was on and said he had other as and when scripts as well. 

She accepted that on one occasion only she had slit open a blister pack to insert an additional tablet. She had disclosed this to CSCI and had never done it again. She denied she had ever kept medicine in the draw in her desk. Both managers had the keys to this draw.

244.	She said that there were so many versions of what had happened in the home when VG died and when she was absent that it was difficult for her to know what actually occurred. She had not seen Fatima a manager from a nearby home in the home when she got back but thought it likely she had been there. She said that Ullana had a CRB check done and in place at the time and Helen had a CRB check which had been carried out within the last three months. 

245.	She agreed the rating levels were poor when she acquired the home went up to adequate, fell back to poor, increased again to adequate, and then reverted in April 2008 back to poor. She said the random inspection in September gave an adequate rating. She accepted that the adequate ratings corresponded with the times there was a manager but did not accept that they had made the difference. She pointed out Rehana had in been in post for two and a half months when the inspection took place and in any event maintained  that she had no power or control over the home. 

246.	The original of the daily records (blue books) were shown to us and SK was asked about why pages had been torn out and stuck back in and about certain handwritten notes in them. She said that these were all made when she was faxing pages and instructions to her lawyers. She was shown an entry which had been sellotaped into the book. She could not remember ever seeing this and it was a note of one of the carers.  She looked at the original note recording the issue of V's shoes. She could not tell if the word crossed out was "very" before the word "upset".

247.	She told us of her experience when working for MIND. In the year after the closure of the home she had been on a sign language course, been on foster parents’ course, learnt aromatherapy and raised money for charity. If we allowed her appeal she wanted to work again in care because she wanted to help people. 

248.	When asked about what with hindsight she might have done differently she said trying to find a manager who would manage but do some shifts as well had been difficult. Not getting one was unhelpful. She should have been better at recording poor performance. She was clear though that even in hindsight she had done nothing wrong in her management of the staff. It had all gone wrong in early 2008.

249.	As to the users she said she should not have got so involved with them but again she did not think she had done anything wrong with her care of them. 

 Mr. Harrison

250.	Mr. Harrison's main evidence related to the issue of B's wardrobe. He had purchased it and installed it and carried out some other odd jobs in the home. His evidence was that he fitted the wardrobe when SK was away and arranged this with Rehana.  He confirmed that payment had been made to him by SK's son.

251.	He said that he knew three users really well because they had all attended his woodwork classes at college and did so for many years. He would go to the home perhaps three times a year to deliver what they had made. His relationship with MF and T was close and he thought that they would have spoken to him if they were in any way unhappy with the home. They never did and he was amazed when the home was closed as he had no reason to believe there were any difficulties. After he retired he would visit the home for a cup of tea and a chat and his impression was that the users were happy as were the staff. 

Mr. Winter

252.	Mr. Winter's evidence related to his knowledge of some users and his views about the home as an external professional observer. He had known three users for some 20 years because of their attendance at day centres and other resource in the area. 

253.	He remembered a conversation with SK about MF's medication changing and the withdrawal of his depot injection. He said that his medication had not been changed for many years. He had a very good knowledge and relationship with MF and would advice SK on strategies to deal with M and would on occasions speak to M at the home on the phone to calm him down.  He remembered SK and Rehana coming to his office to discuss MF's medication issues and the purpose was to consider how the change of medication might effect M. He had many years experience of seeing the effects of the change of medication as did his staff. SK's behaviour had been entirely appropriate and he remembered Rehana was the new manager and sat at the meeting and was clearly learning about the issues. 

254.	His organisation had no input into medication it was at matter for the home and GP. He said that the three who attended were clearly well fed and had appropriate lunches with them. T would say she was on a diet but meant she had more healthy foods in her lunch box than in the past. 

255.	He was convinced because he and his staff knew the three so well they would have told them if they were unhappy at the home. He had been very surprised when the home was closed down as he had heard nothing from CSCI and would have expected to have done so. Usually in these circumstances he would have been approached so he was aware and be prepared to assist his users.

Written evidence

 Deepka Chuhan Freeman

256.	We read the evidence of Deepka Chuhan Freeman whose statement had been prepared for the appeal against the closure of the home.  She is a director of Parklands and was before its closure its company secretary. During the period up to closure she had no dealings directly with the home. 

M's Tugby-Smith

257.	Ms Tugby-Smith’s statement for these proceedings showed that she is a care home consultant and was a consultant to TK. Her statement deals with the issue of the photograph taken of a resident and describes SK as “inexperienced in dealing with her staff” and that she had difficulties with many of them she did not see any incident which made her feel uneasy. 

258.	We also had statements from the relatives of three residents who each said their relatives were happy in the home and they had no complaints about the home or SK.

Tribunal’s conclusions with reasons
259.	We were greatly helped in this case by the expert way in which both counsel presented their cases and by the excellent document preparation which had occurred. Both counsel provided us with excellent closing submissions which set out each parties’ contentions as to each allegation of misconduct, and as to the issue of suitability.

Our approach

260.	We have identified the following issues which we have to decide. First has SK been guilty of an act of misconduct or a number of such acts. In that respect we have looked and analysed each of the allegations of misconduct made against SK, what evidence there is to support such allegation, the weight be give to such evidence and our conclusion in respect of each.  We have considered both parties closing submissions as to each.  We have asked ourselves whether the facts are made out in respect of each allegation and might have caused harm to a vulnerable adult or put them at risk of such harm. 

261.	Secondly we have looked at the acts of misconduct which we have concluded have been made out on the balance of probabilities both individually and as a whole and asked ourselves whether they individually or as a whole they show that SK is unsuitable to work with vulnerable adults. We have given serious consideration as to whether given our findings SK might be suitable to work with vulnerable adults if supervised whereas she might not be suitable to work as a proprietor or manager of a care home.

Overview of the evidence. 

262.	We have considered the evidence very carefully particularly as we noted the concerns of the police accepted by CSCI that the witnesses from the staff of the home might all be considered as unreliable in some way.  Ms Ahern accepted that there were issues with the credibility of all witnesses from the home.

263.	However there are some striking themes in the evidence that we read and heard and in SK's response to the matters alleged against her. The staff who made the majority of the serious allegations against her were not all employed in the home at the same time and it is difficult to see how they could have conspired to give consistent accounts of certain types of behaviour alleged against SK.

264.	Similarly we have taken account of the fact that a careful review of the evidence shows much of the evidence is not first hand but is a "recycling" of allegations made by others. This is in particular true of the complaints made to CSCI from which stemmed all the events which give rise to this appeal.

Allegations of misconduct
 
Shouting at residents

265.	The first allegation is that SK shouted regularly at service users. In particular it is said she shouted at VG and told her she could not have a shower. 

266.	On balance we have concluded that there sufficient evidence to support the allegation that SK shouted at service users. This allegation is clearly also connected with the mop and the shoe allegations where clearly it is alleged SK shouted at residents. A number of witnesses clearly told us or there was in their written evidence a general complaint as to SK shouting at users. We noted that these staff were employed at different times so were not referring to the same incidents but a course of action by SK. 

267.	We noted that there were distinct allegations of shouting by Ms Brockie, Ms Muzamel, Ms Pennant, Joyce Blake,  Ulana Yurejeva and Ms Choabib. Some other staff had not heard or seen such conduct. SK's own evidence amounted to a straight denial she had ever shouted at a user.  On balance we prefer the evidence of the staff members and accept their accounts.  Our view is reinforced by the fact that BJ said to CSCI she was afraid of SK.

268.	 We have concluded therefore that SK did shout at users and in particular did so to VG on two occasions once on 22.12.2007 and again in the shoe incident, and to RH during the mop incident.  

269.	This was clearly misconduct. The service users were all very vulnerable in their own ways. Most of them had care plans which indicated that their difficult moments should be dealt with in specific ways.

270.	Additionally, shouting at service users also clearly harmed them, or placed them at risk of harm. Of course, shouting may cause psychological harm, such as increased anxiety. Further, it does create an atmosphere of fear and with vulnerable adults is clearly inappropriate.
271.	Allegation 2. On numerous occasions between January 2006 and April 2008, the Applicant shouted at members of staff

i.	SK hurled a cloth at a staff member and screamed at her to clean up a spillage / grabbed her wrist and screamed regarding toast
ii.	SK made derogatory comments to an ex-staff member’s new employer
iii.	Generally. SK smeared ketchup / rearranged kitchen cupboards to check on cleaning

272.	We have concluded that the general allegation is made out. Again SK’s case is that she never shouted at staff. We accept the evidence of Mr Jordan and Rehana and prefer it to that of SK.  It is clear to us that SK had no ability to manage or lead her employees and this gave rise to many of the matters which triggered the allegations made against her and indeed in the unfortunate position she finds herself in. It left her isolated and prone to complaints being made against her to CSCI.
 
273.	Her own consultant in her evidence said that SK was “inexperienced in dealing with her staff” and that she had difficulties with many of them. Her frustrations of being unable to manage them led her we have no doubt to deal with them inappropriately as alleged.
SK hurled a cloth at a staff member and screamed at her to clean up a spillage / grabbed her wrist and screamed regarding toast

274.	The evidence suggested to us that Rehana’s account of the incident is an accurate and true one. Rehana was graphic in her description of this incident: she found it humiliating as it happened in front of staff who she was supposed to be managing. It is not clear why Rehana would invent such an unusual allegation.  
Derogatory Comments to an Ex-Staff Member’s New Employer

275.	In reality the evidence about this is not disputed. The evidence from Clare Groves is determinative of this point. SK accepts she said that the staff member was dishonest and unreliable. SK’s reasons for the phone call are just not plausible. Her admission that she was upset and angry gives a truer reason why she made the call.
Smearing Food/Rearranging kitchen cupboards to check on cleaning

276.	There is some evidence which supports this happened it is alleged by Samantha Blake, Robin Jordan and Rehana, but none of them witnessed it.  SK told Rehana that she was doing it in order to check that cleaning had been done properly.

Do these matters on their own or taken as a whole constitute misconduct?

277.	Although we find each of the allegations are true we do not find that either setting traps for employees to see if they were cleaning thoroughly or the phone call after the home’s closure can be misconduct. However the incident involving Rehana and those involving Mr Jordan are in our view misconduct.  They created an atmosphere which might create institutional abuse and potentially cause harm to the users given the likelihood that the users heard such events. It was not behaviour expected of a competent care home manager or proprietor. 
 Allegation 3

The Applicant regularly restricted the service users’ access to food or drink to an extent that was inappropriate and/or left them hungry

278.	We do not find that SK regularly restricted the service user's access to food or to drink to an extent that was inappropriate or left them hungry so as to constitute misconduct.  We reach this overall conclusion because there is no compelling evidence that any user was left hungry. We do find that there was insufficient choice of food.

279.	There is clear evidence from independent reports that there was sufficient food. In summary these are the CSCI letter of the 9th March 2006, the CSCI September 2007 report, the April 2008 inspection, and a letter from the day centre manager confirming that lunch boxes provided were adequate and better than for others from different homes. In addition the user's weight charts showed no evidence of weight loss of any user. 

280.	There is evidence that generally SK bought only own brand food and that she did control the amount and choice of food.  Whilst we consider this was unsatisfactory it does not in our judgment constitute misconduct.

281.	On the individual matters we conclude as follows:

282.	On the issue of butter on toast the evidence did suggest that SK instructed staff to reduce the butter put on bread. There is a clear note of a staff meeting to that effect and it is likely that she did tell staff off if she found them putting what was in her mind excessive butter on bread.  It seems to us that her concern was primarily for health reasons. 

283.	As to the counting of juice cartons SK's explanation that this was for stock checking purposes may well be true.    

284.	On the matter of not allowing sandwiches to a user at night we are not satisfied the allegation is made out. 

Allegation 4

The Applicant engaged in inappropriate conduct with service users: kissing one on the cheeks and lips, giving him cuddles and “spooning” on the service user’s bed. She also encouraged staff to be physically affectionate with the service users.

285.	This was in some ways the most serious allegation made. When reported to CSCI it was clearly an allegation which involved a serious matter with inappropriate sexual connotations suggesting that SK had kissed a resident on the lips and been seen on the bed "spooning".  As the evidence unfolded before us it was apparent that the complainant Ms Muzamel resiled from the allegation accepting she had never seen SK kiss the resident concerned.  As a result it is not now suggested that the behaviour of SK was in any way sexually inappropriate. 

286.	The evidence does support the view that SK encouraged staff to hug and cuddle certain users and to show a certain amount of physical affection. However we accept that this practice was in place before SK acquired the home.  Indeed the care plan of the user primarily concerned in this allegation clearly provided for comfort to be provided to him by a hug or cuddle.

287.	Whilst generally we found Ms Muzamel a persuasive witness in this respect we find her evidence unsatisfactory.  To move her position in making such a serious allegation of kissing a service user on the lips to telling us she had never seen this take place damaged her credibility.  As a result we do not accept that she saw SK "spooning” with the service user.  Our view is reinforced by the fact that no other staff member saw such an incident 

288.	 We do consider that SK did frequently hug users and one in particular.  We accept that on the day of closure she did hug some residents but given the emotion involved in the closure this was perhaps not surprising.

289.	Whilst SK was unwise to encourage physical affection without setting clear guidelines and boundaries and clearly recording them her actions of themselves can not properly be described A's misconduct. 

Allegation 5 SK was rough in the handling of service users.  
290.	There are three allegations which support this matter. The first is a push on a resident, the second the mop incident and the third roughly applying cream to a resident. The last allegation was withdrawn during the hearing.

291.	The first issue of SK pushing BJ in the kitchen is supported by evidence of Sheree Brockie both in her statement and her evidence to the police.  Samantha Blake also says she saw this happen. SK denies any such incident occurred and also relies on the fact that BJ herself when specifically asked if SK had ever been pushed denied it.  On balance we cannot say that this occurred.

292.	As to the mop incident, we accept the evidence of Ms Muzamel, Ms Pennant and Ms Brockie.  The evidence they gave has been consistent about the facts throughout in all the statements they have given. We find that SK did wave the mop at the user, and did shout at him and that the incident went on for some little time up to 10 minutes. We do not accept SK's version of events. 

293.	This event clearly constitutes misconduct. 

Allegation 6: The Applicant actively discouraged or prevented staff from recording incidents that had occurred at the Home or restricted the detail. For example, the Applicant refused to allow any record to be made of a report from the police that one of the service users had been caught “flashing” at a nearby school, that one service user had informed her key worker that she sometimes gave £5 to another service user because he was her friend or that a service user had thrown a plate.

294.	We do not find that the evidence we have read and heard supports this complaint. Undoubtedly SK did try and control to an extent what was recorded.  She had inherited a home where record keeping was clearly poor.  She gave clear instructions in a staff meeting in January 2008 about what was expected. 

295.	In the course of the hearing we examined many records none of which suggested to us that there had been any deliberate effort on the part of SK to ensure records at the home painted only a good picture of what was happening. We are not satisfied that the record keeping was such as to be described as misconduct. 

Allegation 7

 The Applicant changed documents or added to them later to improve records

296.	This allegation is made up of a number of cases of documents which are alleged to have been added to or changed and we deal with each in turn

General allegations that SK changed financial and other records

297.	No specific evidence has been adduced at the hearing that any financial records were changed. As a result we do not find they were.  
 
SK changed records following death of SU even though not present at time
Sheree Brockie claimed to CSCI that SK removed VG’s records from the home for altering after her death.

298.	These two allegations appear to go together and to relate to VG’s death. We neither read nor saw any evidence which supported this complaint. Indeed Sheree Brockie did not maintain any complaint about VG’s records whilst giving evidence. Her complaint was that she believed that Mrs Kaur had lied to her about VG being dead and was nothing to do with changing/removing records from Turnbull House at all.

299.	What actually happened in the home at the time of VG’s death was unknown to SK and she left those who were on duty to record their version of what occurred. We are not in any way satisfied that SK changed records as had been originally suggested

SK removed records following BW’s death/inserted entries about asking if he needed to see Doctor on 6/7 March 2008.

300.	SK denied she had inserted the entries which reflect her conversations with BW about whether he wished to see the doctor after his death. Angela Grant alleged that she saw Mrs Kaur write in BW’s daily diary after he died. We did not see Ms Grant and she could not be cross examined about this.  Other’s who recount the story had no first hand knowledge of whether or not SK had told the truth or altered the records. 

301.	SK’s version of what happened may well be correct and the entries whenever written may be factually correct. There is no evidence to suggest they are not.

Comment cards had been re-written. SUs categorically told they were not to raise concerns with CSCI inspectors.

302.	This was an anonymous complaint made on 4th May 2006.  We were not shown any such card and no allegedly re-written comment card was adduced in evidence and it is impossible to know which comment cards are alleged to have been re-written. Whilst we accept that it would have been difficult to do so we might have heard first hand evidence identifying, when where and whose cards were so altered. 

303.	This allegation of misconduct and any consequent harm/risk of harm is unsubstantiated by any evidence and we therefore find it is not proved.

SK ordered an SU to change a quality assurance sheet

304.	Pauline Barnes’ complaint that VG was not allowed to record a preference for steak in a quality assurance sheet and was ordered to change it. The sheet has not been adduced in evidence.

305.	Again we have no real evidence to support this complaint.  It certainly would not in our view constitute misconduct.

KK suffered a fall on 7th March 2008. Discrepancies between what was written by staff in daily notes and what SK later recorded in required documentation to cover delay in obtaining treatment for him.

306.	On 7th March 2008, KK returned to Turnbull House escorted by “Trevor” from the club at 8.3pm. The club was close to the hospital and, as far as can be ascertained, staff there did not consider that he needed to go to hospital. There is no evidence to that effect. KK was observed by Jennifer Downes who did not send him to hospital. Jaswinder Sharma spoke to KK about his fall and checked him every hour. She did not send him to hospital. We consider the decision taken by SK was entirely reasonable in those circumstances.

307.	On 8th March 2008, KK was feeling unwell and complained that his back was hurting him according to the daily notes. A taxi was arranged for him (as the financial record shows) and Mrs Kaur asked Antoinette to come in to accompany him to hospital. He did not go on the ‘bus as was alleged by Jaswinder Sharma. There was no delay in obtaining treatment for him. As such in our view on the facts there was no covering up of a delay in getting treatment for KK.

Allegation 8: Failure to Encourage/Promote Independence/Infantilising

308.	As to this matter we are satisfied that SK did fail to promote independence amongst the residents. We are satisfied she did not do so deliberately but through a misunderstanding as to how to properly run and manage a care home for vulnerable adults. 

Calling SK mummy

309.	We do find that she encouraged a number of users to call her mummy or certainly took no action to prevent this. SK’s blanket denial was unhelpful. It is accepted by SK that VG called her ‘Mummy Tina’. She accepts that she did not discourage her from doing so. The evidence is also that SK admitted that John Harris also called her mummy, as recorded in the Advocacy Matters complaints meeting, which we find to be true. Rehana also explained that other residents called her Mum, AM and RH. 

310.	On its own this issue may not of itself be sufficient to make out the case but taken with the other issues set out below supports the allegation. 

General allegation re buying clothes and passing to SUs

311.	We agree with the Respondent that the evidence suggests that SK regularly bought clothes for the service users (from their own money) and did not involve them in the purchase decision. For example, staff recall that SK bought Brenda a jumper and then gave it to Brenda, saying “Mummy has bought you this jumper”. It is important to note that Brenda, although having special needs, was capable of going shopping and choosing clothing by herself, see Bundle 7 review. She had previously been married, had a son and lived independently for most of her life, and was particularly frustrated by the restrictions placed on her by living in a care home.

312.	The evidence supporting this is as follows:

(a)	There is evidence in the financial records that Brenda’s money was spent on a jumper, on 23 March 2008, as the sum of £25 appears in that regard;

(b)	Brenda herself told CSCI during an interview on 11 April 2008, in response to the question “Is there anything that you are worried about?”: “About clothes. Tina would buy them and I have to give Tina the money, I wouldn’t choose them”;

(c)	Angela Pennant notes that “Tina did not encourage the residents to be independent. She would buy a jumper for Brenda, using her money, even though she has not asked for, and did not need, one. There was no question of Brenda being allowed to choose her own”;

(d)	The CSCI report dated April 2008 records that “receipts seen indicated that clothing and toiletries ... were purchased in the day when people were at day centres”. This is clear evidence that SK had adopted a practice of purchasing clothing when service users did not accompany her. SK has not provided any evidence rebutting this;

(a)	Similarly, TK (another service user) told Wendy Smith (advocate) that she had never chosen her own clothes at Turnbull House. She told Ms. Smith that SK had bought them and then asked TK for reimbursement.

313.	Whilst SK disputes this and says that service users were regularly taken shopping. The evidence from all others contradicts this and we conclude therefore that this allegation is proved.

Feeding

314.	The allegation here is that SK regularly fed one of the service users (AT) when she was there at meal-times, although he did not need it and could feed himself (albeit slowly). On balance we find that on occasions SK would feed this resident. We also noted and accepted the CSCI evidence that on the day of closure only weatabix was being given to users and no choice offered. 

Conclusion.

315.	Given our findings of fact does this conduct as such amount to misconduct? In our judgement it does not. Whilst it might not have been good practice and indeed constitutes regimented and poor quality care, they are matters which should be identified as requiring improvement by the regulatory body rather than as issues of misconduct.  

Allegation 9: Obsessive Concern with Minimising Expenditure
316.	Whilst these matters are not we have concluded misconduct in themselves they do further illustrate the need for SK to control the situation. We look at each in turn.

SK propped open the fire door to reduce electricity use and taped certain light switches down to prevent their use.

317.	Whilst clearly the two fire doors were wedged open on occasions we accept SK’s explanation. One was lodged open by the user if he was in and the other wedged open during the day to ease access through the home.  Both were closed at night. No one suggested to the contrary. 

318.	Similarly SK accepts she taped up one set of bathroom lights but again no one suggests that the bathroom was not adequately or safely lit. 

Coldness
SK restricted the heating to save money
JH said SK took knobs off radiators
SK removed dials from radiators to prevent proper heating
Broken kitchen window

319.	It seems likely to us on occasions at night that the home might have been cold. There is no evidence to support the complaints this was all to save money or that it inconvenienced users. None of the CSCI inspections indicated the home was cold. Similarly there was no evidence to suggest radiator valves and knobs were removed.  Indeed the evidence was that when there was a heating breakdown SK had acted promptly and effectively to ensure residents were warm.

Food

320.	The allegations about the food provided at Turnbull House was that there was minimal fresh food, that the quality and choice was poor, that the cupboards were very bare, lunch boxes were inadequate and out of date food was given to service users. We have already concluded that whilst choice of food might have been limited we did not on the evidence find that SK had been guilty of misconduct in this respect. 

Conclusion

321.	Given our findings of fact we do not consider this allegation has been made out.

Allegation 10: Failing to Properly Handle SUs Finances

SK bought herself a coat, changed her mind and made BJ pay for it.

322.	We are not satisfied that there is any convincing first hand evidence to support this allegation. 

SK would buy a jumper even if they didn’t ask for or need one. SK said to SU “Mummy has brought you this sweater”

323.	Whilst on occasions we have found SK would purchase food and other items for users there is no evidence she did this other than for good reason.  Whilst it might not have fostered independence it was not an incorrect handling of users’ money. 

AM furniture:
324.	Again we are not satisfied that there is any convincing first hand evidence to support this allegation

Wardrobe

SK bought a 2nd hand wardrobe and made an SU pay £80 for it 
SK took an SU’s money to pay for a wardrobe against her will and without recording it. SK would use SUs’ money for furniture rather than activities.

325.	This is a serious allegation.  The evidence shows that clearly the carpenter was not paid by the user but by SK’s son and that SK was at that time not in the home. The amount paid was to cover not only the wardrobe but other work done in the home. The question is whether on her return the user was required to pay for the wardrobe herself. 

326.	The cost of the wardrobe has been variously stated at different times and by different people as £80, £100, £140 and £200. None of them gave evidence before this Tribunal, which could be tested in cross-examination. 

327.	However we accept that the user did tell staff that she had to pay. Ms Blake in her written evidence suggested the sum was £140 and this would comply with the amount withdrawn from the user’s bank account.
 
328.	BJ herself confirmed to Wendy Smith (her advocate) that this incident took place. Wendy Smith records that she interviewed BJ on 2 June 2008 and that BJ stated as follows: “I had to pay Tina a lot of money for the wardrobe. I never said that I wanted a new wardrobe, she just gave it to me then I had to pay her. The wardrobe is still in my bedroom at Turnbull House”. BJ’s needs were such that she could communicate well and could speak up for herself;

329.	BJ had previously told CSCI the same thing on 11 April 2008: “I had to pay wardrobe money, not sure but maybe £200. She just gave it me (wardrobe). Paid it out of the bank”;

330.	The financial records we have seen indicate that this incident did take place. BJ took out a large sum of money from the bank - £140 and £30, equalling in total £170. 

331.	Samantha Blake stated to police in her police interview: “The next thing that sticks out in my mind was an incident involving one of the residents, BJ, aged in her 50s. She was one of the more capable residents, i.e. could communicate and speak up. She needed a new wardrobe, I think this occurred in September 2007. I am aware that Tina is supposed to pay for furniture for residents from the money she received from the government to care for the residents. But when the wardrobe was fitted, I heard Tina say to Brenda “you need to go to the bank and get the money out for your wardrobe”. This was said in the kitchen area at the care home. She replied “OK”. However, the next day Brenda came into the office at the home. She looked upset and told me ‘I’ve had to pay £140 for a wardrobe’. I said: ‘what for? You’re not supposed to pay for it Brenda’. But Brenda did not reply”;

332.	On balance and with some hesitation we do conclude that it is more likely and not that the user did pay for the new wardrobe. 

333.	We also conclude this is misconduct. In saying that we accept that the user needed a new wardrobe, and its provision was in her best interests.  However she was given no choice over the wardrobe or its purchase and this being furnished accommodation should have been provided by SK.

JH said SK had taken some of his money

334.	No evidence has been adduced as to how much money is alleged to have been taken, when nor what Mrs Kaur is alleged to have done with it. We do not accept that it is true.

Conclusion

335.	We do not find the general allegation is proved.  However we do find the allegation in respect of the wardrobe is and does constitute misconduct.

Allegation 11: Controlling/Bullying Service User

VG’s orthopaedic shoes being threatened to be thrown away,

336.	The evidence as to VG’s shoes suggests that the incident recounted by Rehana is different from the incident addressed by the chiropodist.  We are satisfied on the evidence we heard that SK did first shout at Rehana and did shout at VG.  This did upset and harm VG and this is shown by the notes.

BJ having to eat facing a wall, shouting at KK to “eat, eat, eat” his meal, threatening a service user,

337.	We heard no evidence to support such an allegation and we find it not proved.

In front of others, that he would have to have a potty in his room rather than be allowed to use the bathroom.

338.	Pauline Barnes described in both her witness evidence and in her resignation letter to SK that she had threatened Kenny that he would have to use a potty in his room, as he had urinated on the bathroom floor. 

339.	SK admits that this happened, and agrees that she should have said ‘commode’. However, this is to minimise the impact of what happened.
340.	We accept that the evidence shows that this was said. We don’t not accept it was a threat or meant as such. Whilst most probably a discussion which should have been held in private and more considered language might have been used it does not constitute misconduct.

 Threatening a service user who was declining to assist a member of staff with filling the dishwasher at the end of a meal, 

341.	There is no convincing evidence to support this allegation which we find has not been made out. 

Conclusion

342.	Other than the shoe incident which we find did take place and did constitute misconduct we are not satisfied that the general allegation is made out

Allegation 12: Threatening Staff with Dismissal if they complained to CSCI

SK briefed a staff member on what to say to CSCI
SK criticised Pauline Barnes for going to CSCI rather than to SK
SK said she knew people at CSCI and would know if staff complained to them
SK sacked a staff member (who was subsequently successful at Employment Tribunal) for threatening to complain to CSCI.

343.	We repeat our earlier conclusions that SK was not a competent manager and did not know how to lead and manage her staff and this led to many of the difficulties and complaints we have dealt with. After the death of VG the situation became very difficult.  We heard that at least one staff member was actively building a case against SK

344.	There is in our mind no doubt that SK did criticise Ms Barnes for going to CSCI and did indeed sack a staff member for making such a complaint. The evidence of both Pauline Barnes and Joyce Blake we accept in that respect.

345.	We find this misconduct – to threaten staff and put them off complaining fundamentally undermines the importance of the complaints system. This also creates a real risk of harm as this kind of behaviour prevents people from complaining about things which would affect service users.

Allegation 13: Medication issues

346.	There is no reliable or credible evidence that Mrs Kaur was obtaining, or had the means to obtain, extra stocks of medication to give to service users to keep them quiet.

347.	CSCI was aware of an allegation that “prescribed meds - given to wrong residents to keep quiet” on 18th December 2007.  A random inspection, including a specialist Pharmacy inspection, was carried out at Turnbull House on 31st January 2008. Ms Chouhaib’s “specific allegations were not corroborated” and there is nothing to suggest that CSCI found any evidence of one resident’s medication being administered to another.

348.	The main witness allegation the over prescribing of drugs was Sheree Brockie.  She had no evidence at all to support the assertions she made to CSCI, including that SK had been giving people extra tablets since September 2006 (i.e. for some 18 months by the time of her call). She accepted in cross-examination that she did not know and was not sure where Mrs Kaur allegedly got extra stocks of medication from and that it was a mistake when she told CSCI that she had seen extra medication being given since September 2006.

349.	We were not shown one MAR sheet in evidence which is said to have been changed so that people get extra doses of diazepam that the doctor has not prescribed. 

350.	Neither were we convinced about the evidence of Rehana Muzamel that SK had drugs in her bag. As the Respondent fairly submitted to us it is also possible that staff in fact saw PRN medication being administered.

In late 2007 SK forced MF to take an extra diazepam, even though he knew had taken enough. He eventually accepted.

351.	Rather than be criticised for her treatment of MF the evidence suggested that SK was the first person for some 10 years who had sought to have his medication fully reviewed and a correct regime put in place. We do not find that there was any credible evidence to suggest that this allegation is made out.

CSCI made a number of requirements about poor medication practice after 31/01/08

352.	SK accepts that she added additional tablets which had been prescribed for MF from one blister pack to another. The tablets were prescribed by Dr Meera Roy mid-month and she collected them from the pharmacy where they were supplied in a blister pack. That meant there were two blister packs for the same month and staff were forgetting to administer the second tablet so she did it to try to avoid the staff not giving the correct amount.

353.	Whilst this was clearly not the correct way of dealing with the issue as soon as CSCI pointed this out to her there was apparently not a repeat of the problem.  We do not consider this was misconduct.
 
AM’s medication was increased in February 2008.AM’s health records were inaccurate.

354.	We accept SK’s evidence that AM’s medication was increased in February 2008 after Dr Preshara had checked him thoroughly, done a blood test and had a good talk with AM.   
 
BW’s care plan inaccurate.

355.	In her evidence Ms Ahern said her concern was that no risk assessment had been carried out and documented. Clearly this had not formally been done. However the risk to BW was appropriately dealt with by an entry in the communication book for 5th January 2008 shows that staff were instructed to:- 
“Keep an eye on Brian when he is in bedroom, check him few times and don’t let him go out. Monitor him eating & taking his medication. Give him one by one tablet at a time. Don’t give all the tablet together for swallowing. Medication should be given him using a glass of water”. 

356.	A few days later the care plan was changed to record that he should be encouraged to eat food slowly and chew thoroughly. We do not find that SK acted unreasonably or in breach of duty.  All staff would have known of the risk. There was no act of misconduct.
	
Failing to arrange a dental appointment for GL, claiming to have done so, leaving him in intolerable pain and requiring emergency treatment in A&E.

357.	The allegation here is that SK went on holiday, knowing that George had toothache and that he was taking pain-killers. When asked by Sheree before SK left, she said that an appointment had been made. However his pain got worse and worse and actually when records were checked, SK had failed to make any appointment at all. In the end, he had to have his tooth extracted as a matter of urgency on 8 March 2007.
358.	SK’s case was that Sheree Brockie had no opportunity to tell her of the incident recorded on 2nd March 2007 but, in any event, in cross-examination she said that the instruction to give paracetamol and the information about the alleged appointment was given on the day before GL was pacing and crying which was 7th March 2007 and when Mrs Kaur was away on holiday. There is no evidence that she was told GL had toothache and therefore failed to arrange adequate dental care for him before she went on holiday.

359.	On balance we do not find that SK did tell Ms Brockie that she had made a dental appointment.  We do not find she was guilty of misconduct about this matter.

Allegation 14: Mohammed Azeem

360.	This allegation was withdrawn.
Allegation 15: Inadequate staff on duty/Failing to Perform Adequate CRB Checks

361.	SK does not accept that there were inappropriate staff on duty when VG died. Ulana’s CRB check had been done and Helen had an up to date CRB check from her employment at Loretta House. Helen was a qualified doctor. However SK accepts that a CRB check was pending on Helen. There was a risk assessment dealing with Helen’s contact with residents pending her CRB check, specifically stating that she was to have no contact with service users until receipt of her CRB. Yet, Helen was on duty with Ulana (who was 18 years old) and yet she was the one who is alleged to have carried out CPR.

Inadequate Checks on New Staff

362.	The evidence supporting this allegation is as follows:

(a)	The CSCI report from January 2006 identified this as a failing and SK was specifically told by the report that she needed to ensure that various things were done before new staff commenced work;

(b)	Despite this, the CSCI report from the unannounced visit in July 2006, noted that “it is of concern that once again shortfalls were identified in regards to the home’s ability to safeguard residents by ensuring that the appropriate recruitment checks are undertaken”. The shortfalls at the time were that two references had not been obtained for both people, discrepancies with referees had not been checked and references had been accepted on photocopied paper;

(c)	Despite these warnings from CSCI, Angela Grant noted in her letter to CSCI on 26 March 2008 that “I began work in Turnbull House with no POVA check or CRB had come back, even though there are no issues with my POVA or CRB”;

(d)	Rehana also alleges that she was allowed to commence work before her CRB check came through. When she pointed out the inappropriateness of this, she was told “Don’t worry, daughter” and told to come in any event. SK states that she did not allow her to have contact with residents in the meantime, but as Rehana says this would have been completely impossible in such a small care home, where managers were expressly supposed to do care as well as management. She was adamant that she cared before her CRB check came through.

363.	This is clearly misconduct placing the residents at risk of harm, especially as CSCI reports seem to have been ignored in this respect.  Robust recruitment checks are absolutely crucial to ensure the safety and well-being of residents.
	Tribunal’s findings as to misconduct 

364.	In the light of our findings set out above we have found on the balance of probability that SK has been guilty of misconduct in connection with a number of matters.  We are satisfied that these put users at harm or potential risk of harm.

Suitability

365.	In the light of the above we turn to the issue of suitability and we find this issue a difficult one. At the outset we should say in our judgement SK does not have the skills or aptitude to work as a care home manager or proprietor. 

366.	However the evidence clearly showed SK had a caring nature and a good relationship with some of the residents and in particular R.  She did have some insight to the failings in the home. She will never again be a registered proprietor or manager of a care home because she would never pass through the application stage. 

367.	Similarly we are completely satisfied that she never intended to cause harm to any of her users. Indeed in the two incidents of the mop and the VG her anger was caused by her staff being abused by the user and her seeking to respond to that.  Through out her time in the home she was clearly hard working and committed to the home and the users in it. There was no doubt that relatives and other visitors to the home felt positive about her.
 
368.	Conversely quite clearly SK has no real insight into the care of vulnerable adults. Our efforts to seek to obtain from her evidence of her suitability in this respect was not met with answers which demonstrated a real understanding and neither did her previous experience show it either.  She clearly has no insight into what now constitutes best practice.
 
369.	On balance we found that SK was controlling by nature and some of the misconduct for instance the mop incident unacceptable.

370.	We accepted the submission on behalf of SK that we were entitled to judge her suitability by reference to other roles for which she is qualified. So if the Tribunal were to decide that she could safely be an aroma therapist working with vulnerable adults under supervision she should deemed suitable.

371.	However for the following reasons we have concluded she is not suitable to work with vulnerable adults:

(a)	The number and nature of the allegations of misconduct render her unsuitable to work with vulnerable adults in the future;

(b)	When one adds to the misconduct  the other incidents/allegations (which are relevant to suitability but may not amount to misconduct) then it is absolutely clear that she is unsuitable to work with vulnerable adults; and further

(c)	This misconduct occurred when she had the support and guidance of CSCI;

(d)	Donna Ahern takes the view, which we share that the reason why she continued to ignore CSCI and do her own thing is because she had no insight into the fact that what she was doing was wrong. This means that she is inherently unsuitable;

(e)	The fact that SK has been prepared to be untruthful to the Tribunal about the extent of her misconduct (and other matters) shows an unwillingness to accept blame or to learn from her mistakes. Such a person is inherently unsuitable to work with vulnerable adults.

The Tribunal’s conclusions

372.	For these reasons we conclude that SK is not suitable to work with vulnerable adults. 

Is SK suitable to work with children?

373.	Given the reasons that we have found as to suitability to work with vulnerable adults for similar reasons we are satisfied that SK is not suitable to work with children. 

Order

1.	That this appeal be dismissed.

Tony Askham 
Tribunal Judge
August 2011