The Tribunal Procedure Rules (First-tier Tribunal) (Health, Education and Social Care) Rules 2008

Mr Dennis Clark
 Trading as Rosecroft Rest Home 

- v -

CARE QUALITY COMMISSION (CQC)
[2012] 1983.EA

DECISION

Panel: 				Judge Melanie Lewis 
	                          	Mr Richard Beeden (Specialist Member)
                                    	       Ms Claire Trencher (Specialist member)	

Hearing held in Brighton 21, 22 and 23 November 2012.

The Appellant represented himself.  He called Ms Jacqueline Garnie (Carer at Rosecroft Care Home) to give oral evidence.   

The Respondent was represented by Mr Paul Spencer of Counsel, instructed by Ms Beth Buchannan of Weightmans. He called Ms Sarah Montgomery (CQC Commission Compliance Manager), Ms Susan Slaughter (CQC Compliance Inspector), Ms Suzy Neave (Team lead Community Nursing Service) and PC Jewiss to give oral evidence.

Appeal

1.	By notice dated 28 August 2012 the Applicant appeals against the Respondent’s decision(s) dated 1 August 2012 to impose a condition on his registration pursuant to s.31 Health and Social Care Act 2008 that stopped Mr Clark from admitting any new Residents to Rosecroft. On 31 August 2012 the CQC served a Notice of Proposal to seek to cancel Mr Clark’s registration pursuant to Section 17 of the 2008 Act.
2.	The Section 17 HSCA 2008 Grounds for Cancellation set out a breach of seventeen regulations/relevant requirements. These were:-

(i)	Regulation 17 essential standards   involving service users.
(ii)	Regulation 18 – consent to care and treatment.
(iii)	Regulation 9 – care and welfare of service users.
(iv)	Regulation 14 – meeting nutritional needs.
(v)	Regulation 24 – co-operating with other providers.
(vi)	Regulation 11 – safeguarding service users from abuse.
(vii)	Regulation 13 – management of medicines.
(viii)	Regulation 15 – safety and suitability of premises.
(ix)	Regulation 16 – safety, availability and suitability of equipment.
(x)	Regulation 22 – staffing.
(xi)	Regulation 23 – supporting workers.
(xii)	Regulation 12 – statement of purpose.
(xiii)	Regulation 10 – assessing and monitoring the quality of service provision.
(xiv)	Regulation 18 – notification of other incidents.
(xv)	Regulation 20 – records.
(xvi)	Regulation 18 – notifications demanded by the 2009 inspection
(xvii)	Registration requirements:  these included keeping resident records out of general view and stored securely.
3.	Pursuant to Directions dated 13 September 2012, the two Appeals were heard together. The Grounds of Appeal stood for both Appeals.  Procedurally and evidentially we focussed on the Section 17 notice because the condition imposed would only have a practical effect if we decided to uphold Mr Clark’s Appeal in respect the cancellation of his registration in full or in part. 
4.	Under the Health and Social Care Act 2008 (HSCA) provisions amended the registration regime of certain providers and managers registered under the Care Standards Act 2000 (CSA) and introduced the functions of the Care Quality Commission (CQC) in respect of those registrants. From 1 October 2010 all new applications for registration were to be made under HSCA 2008.  

5.	The relevant regulations made pursuant to s.20 are The Care Quality Commission (Registration) Regulations 2009 (the 2009 regulations) and The Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 (the 2010 regulations). 

6.	We remind ourselves that it is for the respondent to establish on a balance of probabilities the facts upon which they rely in establishing that the registration of the appellant should be cancelled. 

7.	We are not simply reviewing the decision of the Care Quality Commission but making the decision anew. As such we can consider post decision evidence. 

 8.	No interim order was made prohibiting the publication of material which could lead to the identification of service users under rule 14(1) of the Tribunal Procedure (First-tier Tribunal) (Health Education and Social Care Chamber) Rules 2008.   We make that order  without any limit of time.  All the papers were however redacted. 

Background

9.	Mr Dennis Clark is the sole registered provider for Rosecroft Rest Home. Mr Clark opened Rosecroft in 1984. It was established that he owns a number of other businesses in the area. It was part of his Case that he wished it to be a Care Home, serving the needs of the community where he has lived all his life and continues to have a lifelong commitment. 

10.	Rosecroft Rest Home was previously registered under the Care Standards Act 2000 and transitioned under the Health and Social Care Act 2008. On 1 October 2010, it is registered as providing Accommodation and Care to a maximum of nineteen older Residents. Before Residents were removed from the home on 2 August 2012, there were fifteen Residents and a lodger (who in many respects had needs resembling and was treated like a sixteenth Resident) residing at the home plus one member of staff (Ms Garnie) who lived there.

11.	 The mix of Residents is complex with higher dependency health and mental health issues, such as dementia, diabetes (insulin dependent), cancer and alcoholism. However the home did not provide nursing: that was provided by District Nurses that visited daily, GP’s and or emergency/ hospital services.

Chronology and Safeguarding history:

12.	It is necessary to examine the chronology in some detail as it is part of Mr Clark’s Case that he was not put on notice or given sufficient notice of concerns, and/or given no or sufficient time, to remedy them. It is the Respondent’s Case that there have been some long standing concerns relating to the home and had they known of the safeguarding concerns now exposed earlier then they would have taken action sooner. No safeguarding referrals or findings were referred to CQC before 13 July 2012 but we note that the minutes of the West Sussex Strategy held on 18 July 2012 record that the Contracts Manager had raised Rosecroft as an issue. 

13.	In July 2012, a Safeguarding Investigation made by West Sussex Social Services Safeguarding Authority, substantiated neglect in relation to a failure to report a Necrotic Sore of a Resident at the home. 

14.	District Nurses were visiting the home on a daily basis, in particular to support an Insulin Dependent Resident, who also had learning difficulties. A number of safeguarding referrals had in fact been made by this service prior to July.  In March 2012, a safeguarding meeting was convened but it did not include Mr Clark or report its findings to him. The history records four safeguarding incidents in April – May 2012. 
  
15.	On 23 May 2012, West Sussex County Council Contracts Team who had placed a number of Residents in the home undertook a contracts monitoring visit that lasted some 3 hours and included long discussions with Mr Clark and Ms Garnie and made a number of recommendations with regard to Residents’ needs not being met. Risks associated with Residents’ smoking in the bedroom, the absence of an up to date Statement of Purpose, lack of knowledge of the provider’s responsibilities contained with the Contracts for Care Homes Services Act 2007 and the Health and Social Care Act. They were also concerned that records were left around and suggested that a room at the end of the back extension be turned into an office.

16.	On 29 May 2012, Brighton and Hove City Council reviewed all Residents placed at the home and on a visit a number of concerns were raised. 

17.	The current enforcement action was precipitated by a referral from a Community Equipment Services Delivery Driver who failed to gain access to the Care Home on 7 July 2012 by the normal method of ringing/knocking at the front door. Whilst there was some dispute as to the length of time he had been at the premises, he called the police at 15:00 hours because for fifteen minutes or so, he hadn’t been able to raise any staff. Someone came to the front of the house whilst he was on the phone to the police, but it looked to him as if she had just woken up. He had been able to enter the property via the side entrance. An issue is that there was no gate securing the way to the rear of the building allowing free access in to the property and out given that it was normal practice for the rear door to be open/unlocked during the day. 

18.	On the same day, a Nurse had found a Resident on the drive way naked from the waist down. It has been established that this Resident was an old friend of Mr Clark’s and technically a Lodger rather than a Resident, who was an alcoholic. He told the Nurse that he was trying to get out to buy a bottle of vodka.  Again, she recorded a difficulty in raising Staff. 

19.	Further safeguarding referrals were made on 10, 13 and 14 July 2012 . We learnt that a new computer system in the District Nursing Service allowed the number of safe guarding referrals to be pulled together and the referral made to the CQC.

20.	On 20 July 2012, CQC carried out a responsive review.

21.	On 21 July 2012, the Safeguarding Authority received a further safeguarding referral from Sussex Police, in relation to a Resident found wandering in the street. It was that incident which PC Jewiss responded to. On the same weekend, the District Nurse raised two further safeguarding alerts. 

22.	On 23 July 2012 further safeguarding concerns were raised by the PCT District Nurses regarding the day care of Resident ‘M’. 

23. The second CQC on site inspection was carried out on 25 July 2012. 

24.	Mr Clark was advised that the CQC were considering the use of its most draconian powers under Section 30 of the 2008 Act, seeking an order from the Magistrates’ Court for immediate cancellation of the Home’s Registration. As instructed, he produced a Care Plan by 2pm that day, but the timing gave him, amounted to only about an hour and a half. 

25.	Mr Clark had understood that Mrs Montgomery was to telephone him by 3pm the next day.  Following negotiations with West Sussex County Council the Residents were removed.  Mr Clark was notified by email, but was in London that day.  

26.	On 1 August 2012, a Section 31 Notice of Decision was issued and the Residents removed. 

Summary of the Parties Cases

27.	Mr Clark’s Case is essentially that he had had insufficient notice of concerns and given insufficient time to comply with breaches of the Regulations.  

28.	Given the length of time that the Care Home has been open, the service it has given the community it serves, his willingness to take in an extended Client Group which other homes would not take for the low fees that Social Services were prepared to pay, made it disproportionate to cancel his registration. He produced a number of letters of support from Residents’ Families, including a detailed response from the son of one Resident ‘J’, whose care had been singled out for particular concern by the CQC. 

29.	We noted that on 16 August 2012 Mr Clark had approached a Consultancy who indicated that they would assist him in remedying identified defects.  This was not taken further.   He stated that he would seek outside help but no evidence of an identified provider was put before us.  He asserted that remedial action would be taken but there was no detailed costed plan or even an outline costed plan for us to consider.  

30.	The CQC invited the Tribunal to review the evidence against a number of themes. There was a myriad of evidence from a number of sources.

(i)	Of primary concern was Mr Clark’s lack of insight, his failure to understand and implement the 2009 Registration, and his response when challenged were wholly inadequate: 
(ii)	The home’s Statement of Purpose was basic and out of date.
(iii)	Records and record-keeping.
(iv)	Risks and risk assessments.
(v)	Environment.
(vi)	Health and safety.
(vii)	Poor care, neglect and other concerns.

The Evidence

31.	There were four files of written evidence. In addition, we made a short twenty minute site visit at the end of the first day which was helpful to us in gaining an understanding of the layout, both external and internal. 

32.	We first heard evidence from Mrs Montgomery. She had visited on the second ‘Responsive Inspection’. She identified a number of photographs taken by Mrs Slaughter and gave her own observations on what she saw.   She emphasised at a number of points that had the CQC known of the position earlier they would have taken action sooner.  

33.	 She did not accept that they had taken a bullying approach.  She  accepted that Mr Clark had a short time to respond, but in essence, she was looking for an immediate action plan which showed an understanding of the concerns and breaches which had been raised. She did not accept that she had agreed to telephone Mr Clark the following day,  but he had certainly understood it that way. 

34.	Mrs Montgomery attached little weight on the letter of intent from a Consultant dated 16 August 2012.  She described it as a ‘good start’,  but it came nowhere near addressing the very serious and immediate concerns raised. She accepted that Mr Clark, as he does now, asked if he could run a reduced service and be given time to amend the issues. For her, it was his lack of insight into the real nature of the problems that was of greatest concern. She stated that she had carried out many inspections but she didn’t see this as a Case where a remedial notice and certain practical steps in a clear time frame could be put in, such that the Safety and Wellbeing of Residents could be protected.  

35.	Mrs Slaughter was present at both inspections. On 20 July, she and her Colleague, a first-time Inspector, went round. On her second visit on 24 July, the wider-ranging nature of the concerns became evident to her. Like Mrs Montgomery, she described herself as appalled by what she had seen.  Both were concerned that issues identified at the time of the first visit had not been remedied. For example an unguarded ladder to the roof was still in place. Records were still left out around the communal areas (dining room and kitchen in particular) and there did not appear to have been any effort to begin a through clean of the home.  

36.	 Mrs Slaughter had grave doubts that the Home had enough Staff and that the Staff appeared to be doing a mix of Caring and Domestic Duties  with inter-changing Roles and a real risk of cross-infection.  Her observations enforced concerns raised by the District Nurses. There appeared to be no cleaning systems, and it appeared that laundry from a hotel owned by Mr Clark was also done in the Home. Meat was kept in open cupboards in the kitchen, as were cleaning materials.   Three sheep and hens lived in the garden.  A hen was observed to enter the kitchen. 

37.	There appeared to be no appreciation of the danger to Elderly People with dementia or Residents seeking alcohol, as bottles of alcohol were also found. There appeared to be no appreciation of the dangers let alone a risk assessment of allowing certain Residents to smoke in their rooms. 

38.	  The CQC relied in particular on five Care Plans but Mr Clark put in others. In particular concerns were raised about a Resident ‘J’. Mrs Slaughter was concerned that her room was bare, her drawers were nailed shut and there were no toiletries in the room.  Her son wrote a strong response, concerned that his mother’s situation had not been fully understood by the Inspectors. She had been diagnosed as bi-polar although this does not appear in the records kept by the Home, who only knew that she had a history of depression and dementure.  Mrs Slaughter was concerned that if her toiletries and furniture had been removed for her protection, this was not referred to in any Care Plan, and no alternative strategies seem to have been considered. In this and other Cases there was no adequate Risk Assessment.  

39.	PC Jewiss together with a Colleague called at the Home on Saturday 21 July 2012, (between the two inspections), in response to a welfare issue raised by a Member of the Public.  A Resident ‘A’ had left the Home via the back door, side access and missing gate and although they had not gone far became disorientated and confused.    The Member of the Public guessed that ‘A’ might be a Resident of the Home as they were nearby had telephoned the Home and a Member of Staff collected the Resident.   The Member of the Public was concerned that the Resident appeared bruised. She had also heard screaming coming from the Home. In the event, PC Jewiss was satisfied that there was no welfare concern. She heard one Resident screaming (not ‘A’) and when she finally saw ‘A’, saw that she had no bruise.  Her concern was the response of Mr Clark who initially refused to allow her into the premises until she threatened to arrest him.  In oral evidence she accepted that he had wanted to check on the Resident as he was not aware that she had injured her face, before allowing the Police Officer to talk to her but maintained her concern about his unnecessarily hostile attitude. Her Colleague had spoken with the Resident ‘B’ (‘A’s husband) who seemed to enjoy the contact. He had an asthma attack but Staff were called and we clarified Ms Garnie brought his medication spray. The Police Officers were satisfied there was no welfare issue and then left.   

40.	Ms Suzy Neave led the District Nurse team. She highlighted issues that she herself had seen or were reported back to her by District Nurses. They included Security, Health and Safety, Environmental Issues and Infection Control.  The Nurses had to ask for liquid soap and papers towels. The liquid soap was provided for a while but no system was put in place to ensure it was always available. The paper towels were never provided. 

41.	Ms Garnie has worked at Rosecroft since 2001. She lives in and was on shift from 11am to 8pm each day but is on call at night. She never has a day off and it didn’t appear that she has had any holiday.  She said that was her choice, she did not get too tired and loved her job and had the best interests of all the Residents at heart. Her oral evidence and much of the written evidence made clear that whilst she was not the Registered Manager, she carried out many of the Management Roles. She said that she had an NVQ 4 Qualification, but this was not in our papers although other Training Certificates and an NVQ at level 2 were.  

42.	 Ms Garnie was very candid in her oral evidence in recognising the Home’s shortfalls. There were generally two Carers on duty plus herself.  She stated that Mr Clark was there all day.  The Staff were an established team.  She conceded that the rota was an unusable and unworkable document. It was not right that the Staff simply relied upon each other’s oral transfer of information. The majority of the record-keeping was done by her. She conceded most Care Plans were not up to date. She was pressed on the issue of record-keeping, which had been raised as a mandatory action point at the 2009 inspection.  She said that Mr Clark had asked her to remedy this on several occasions. The Statement of Purpose referred to earlier legalisation and was an example of information that needed updating.  Over the last year, she had learnt to use a computer. Mr Clark cannot use a computer and frankly accepted that she was better at the paper work than he was. 

43.	 She agreed that there were areas of concern over the cleanliness. It was not a well kept environment. She had hoped it provided a homely atmosphere but agreed a lot of areas needed improvement, even basic clearing Rotas and Audits. 

44.	She found it difficult to accept that there had been neglect of the Residents although she conceded that on occasions, their basic needs had not been met. She acknowledged that insulin was kept in the fridge in the kitchen although it did have a thermometer.   

45.	In his oral evidence, as in his written evidence, Mr Clark highlighted the many ways in which as he saw it, he had been too kind. He had taken in a Resident who was a Paying Tenant, because he was an old friend whose alcoholism had lead to him being homeless.  He had taken a too-wide Client Group, some of whom needed supported living not Residential Care. 

46.	 He had sought legal advice but decided to advance his own Case. He said that he ‘learnt so much in answering’ the breaches raised by the CQC. He would prefer to manage the Home but just on a smaller scale. When questioned about staffing, it was clear that he left this to Ms Garnie.  During questions, Mr Clark conceded that his cleaning and record-keeping was not ‘top-notch’. It was he agreed, ‘a bit haphazard’.  

47.	When questioned by Mr Spencer, he accepted that he had a number of other businesses, but was adamant that he was in the Care Home every day. He had no up-to-date training. 

Tribunal’s Decisions and Reasons

48.	The Panel considered all the written and oral evidence, the opening and closing submissions by Mr Spencer and we fully used our inquisitorial powers to understand the response put forward by Mr Clark. We noted the support from Residents’ Families, in particular the Resident ‘J’. Her son had filed a very detailed response. 

49.	The Panel decided on the basis of the evidence taken as a whole and applying the law, outlined above, that the Appeal should be dismissed on the basis that Mr Clark does not fulfil the statutory criteria for Registration under Section 17 (1) ( c)   HSCA 2008. This is because he cannot or will not demonstrate he can comply with the relevant S.20 Regulations, including the 2010 Regulations. 

50.	When considering Mr Clark’s evidence, the Tribunal concluded that despite being given every assistance and opportunity to explain his position, Mr Clark failed to satisfy us that he has any real insight into why things had gone wrong. In turn, we could not have confidence that he could run an effective Home in compliance with the Regulations in the future. 

51	Having read all the evidence and had an opportunity to observe and hear Mr Clark over three days, it was clear to us that he finds it hard to accept that his own view of himself as a Benevolent and Caring Provider could be challenged by anybody else.  Conversely though, he has, as he accepted, been reliant on Regulators to tell him what needs to be done to maintain his Registration.  He has had a responsive not provocative approach. He failed to grasp that the CQC is a Regulator and has no advisory role.   He put forward no credible reasons as to why he had not familiarised himself with legislative changes in 2010. His aim to run a homely Rest Home does not mean that he does not have to comply with the Regulations. 

52.	Mr Clark expressed the view that he had not been told what he was doing wrong and on 25th July he was not given time to put it right and consequently CQC’s actions were disproportionate and unfair. We do share Mr Clark’s concern over the timescale for producing the Action Plan requested by CQC. Whilst we appreciate at that point they were looking to take action under section 30 (which they told Mr Clark), 2 hours is not a reasonable time frame. Further, once they had the agreement of the placing authorities to move the Residents out forthwith and so took action under S31 and S17 which afforded a longer timeframe, this was not as far as we were able to ascertain, clearly explained to Mr Clark who then in effect had a month to work on a Care Plan, Systems and to put right what was wrong with the Premises. Mr Clark told us that he was unable to proceed because he had not had the report from the CQC arising from their visit. A draft of that report (later withdrawn and a substitute sent in October) was sent to him in August, but not withstanding this unhelpful occurrence, Mr Clark cannot claim that all this was all news to him. He had not actioned at least one important requirement (related to record keeping) from the 2009 Inspection. He and Ms Garnie had had a long conversation with WSCC in May at their visit in which many of the issues on which the CQC has acted were raised. Ms Montgomery gave evidence that she discussed their concerns with Mr Clark at her visit on 24 July and served a Code B Notice which stipulated the eight most urgent items to be addressed, her follow up email on 25 July and the letter of 1 August from CQC running to some 45 pages setting out why they were taking action could leave no room for doubt that action was urgently required. 

53.	 Mr Clark also failed in his duties as an Employer. According to the questionable Staff Rota, he put into evidence he has at least 3 Staff working more than 48 hrs per week, only one of whom has signed to opt out of the working time directive and that was signed on 22 July this year. Yet we were also told this was and had been for a considerable time the usual staffing arrangement. The evidence submitted by Mr Clark shows that at 3pm on a Saturday (the day of the Delivery Driver’s safeguarding alert) there would have been two Staff (Ms Garnie and Staff Member No 4) on duty plus two Staff (No 6 and 7) changing over. It is simply not credible that none of them would have been within earshot of the delivery over a period of at least 15 minutes. The rota in evidence also told us that Ms Garnie was the only Member of Staff on duty on Tuesday afternoons between 4pm and 8pm. Yet elsewhere we were told that there was always at least two Staff on duty. He was very vague when pressed to explain the hours and the rates of pay of the Staff and again clearly left this to Ms Garnie, even though he was the Manager.  

54.	Having  analysed all the  evidence for ourselves, we find that each of the outcomes relied on in the Section 17 Notice is made out, save that in closing Mr Spencer withdrew reliance on breaches in relation to a Resident ‘M’ and his Catheter Care, but only as the evidence on timings was not complete.  We find that the opening submission set out on behalf of the CQC, are amply made out.  We agree that a number of clear themes emerged and had been present for some time. The oral evidence instead of clarifying issues has caused us to have further concerns as to the way this Rest Home was run. We spent time examining systems, but the overall picture that emerged was  that there were no systems. 

55.	 Neither was there any clear Action Plan.  Such Plan as was advanced was essentially more of the same but on a smaller scale, at least to start with. We felt it was telling, that even at the close of the hearing, Mr Clark was saying he would do whatever he was required. It was another example of him failing to be proactive. 
 
56.	It is Mr Clark who is the Registered Manager of the Home, although it is clear that he left a great deal of the day to day Management and Paperwork to Ms Garnie. It is he who must bear overall responsibility.  It is he who failed to keep up to date and to ensure that the Home complied with the Regulations.  He failed to keep up with his Continuing Professional Development Obligations.  

57.	  The evidence which we have accepted showed serious concerns about the Care of some of the Residents.  Mr Clark was seen to move a Resident manually and not use the hoist.  He allowed an alcoholic to become a paying guest, with seemingly little consideration of the impact he would have on what was the Resident’s home.  A Safeguarding alert was raised in relation to this man when a Nurse found him shuffling on his bottom on the Drive outside, naked from the waist down looking for vodka.  Another alert was raised by an Ambulance Driver who could not gain access, when he had been called to a Resident who had a fall.  Even at the weekend after the first Inspection visit, concerns were raised. 

58.	  The statement of Ms Neave exhibited a number of Safeguarding alerts.  Whilst we understand that Mr Clark may have felt aggrieved that these, were not raised with him, we are satisfied that on a number of occasions, District Nurses did raise concerns directly with him. He saw this as ‘getting on his back’ rather than any form of constructive criticism. 
59.	The Home’s Statement of Purpose is basic and out of date. This is not a small matter as it is indicative of a systematic failing by a Proprietor who has run a Care Home for twenty-eight years and failed to keep himself up to date. Information in Residents’ Rooms was out of date, some of it dating back to 2002.

60.	We have considerable concerns about Records and Record Keeping. It was conceded that the Staff Rota was woefully inadequate.  We accept that it is more likely than not that it was hurriedly put together in response to a request for the rota by Ms Montgomery. It wasn’t at all clear to us how cover was provided when Staff were sick or on holidays. The overall view we gained was that Staff did their best but had inadequate direction and were poorly supported. It is striking reading the comments from Residents to the CQC Inspectors, how many of them referred to having to wait or not liking to bother Staff, who they could see, were busy.

61.	We accept the concern of the CQC that the documents produced were not Care Plans. Even if up to date, they simply describe the person’s presenting behaviour at the Home. The Care Plan should identify how to support the Resident, give clear guidance as to how to provide Care and Deliver treatment. They did not comply with NICE Clinical Guidelines for Dementia Care. There were many examples of this. Two Residents of the Home who had been there since February 2012 had no Care Plan. Mr Clark tried to explain this away on the basis that it would be ‘demeaning’ and that they were only there temporarily which clearly was not the case. Many were out of date. The Care Plan we read states that Resident ‘J’ was appropriately supported but the reasons for the absence of her personal possessions and toiletries was not recorded, and no alternatives were suggested.   The Records record that she had previously suffered from depression, but not that she had been diagnosed with Bi-polar disorder.

62.	We dwell on this point. The theme of Mr Clark’s evidence was that they knew their Residents, as did their Staff. However, no clear Support Plans were in place to support a number of identified needs.  Care Records did not adequately record Resident’s abilities and how for those less able, they could be assisted to make decisions about how they spent their day. The Care Plans we read were descriptive and were lacking any real analysis of problems, interventions, implementation and evaluation. 

63.	Similarly, there didn’t appear to be any Systems in place to monitor the quality of care provided or learning from accidents or incidents such as falls. No assistance had been sought from outside Professionals although we were told that a Sussex Falls Prevention Service exists.

64.	We read a number of Accident Reports. For example, we read about one Resident ‘K’ who had had a number of falls. What is again striking is that there appeared to be no continual Risk Assessment or attempt to update her changing needs. Of particular concern was that Mr Clark when spoken to by the Inspectors didn’t understand how to raise a Safeguarding issue. The Staff did not appear to be trained in this regard. They had failed to take on board the Safeguarding Strategy Minutes of March 2012. 

65.	We made a Site Visit. We saw for ourselves that each room had a toilet and sink. The areas were small with a number of tight and difficult to reach corners. We were presented with no evidence that the Home was following any established Best Practice, or that there was a schedule of minimum cleaning frequencies operating, or for example any colour coding of cleaning equipment. Cleaning fluids and paint in the kitchen were indicative of this. Even on the two days of Inspection highlighting concerns raised by the District Nurses, there was Care Staffs inter-changing their Roles between their Care, Cleaning and Food Preparation Duties. On the day of the Inspection Visits, two Members of Staff were observed undertaking all Caring, Cleaning and Catering Duties for the sixteen people in the Home. 

66.	We were given numerous examples Health and Safety issues. These included exposed wires (which Mr Clark claimed were not live), loose wires and cables, and unguarded incandescent light bulbs in bedside lamps with trailing flexes. Confused and alcoholic Residents were exposed to the risk of hazardous chemicals. We noted that the downstairs windows did have window restrictors, and whilst there were only some upstairs, the windows without restrictors were of a design that provided restricted access. A ladder which had caused the Inspectors concern on the first visit was still there at the time of the second visit. There was no side gate. Even when pressed in oral evidence, Mr Clark seemed unable to identify the risk this could pose. Mr Clark spent some time challenging the length of time the Delivery Driver had been on the premises but failed to recognise that he would not have been able to come back round the back, and enter the Home, had their been a locked side gate.  If there been an adequate buzzer or bell systems in place there would have been no reason for a Member of Staff, if they were on duty, not to have been alerted by a Delivery Driver or similar. We find that there is evidence that on balance, waking Staff were asleep on duty, when he called. 

67.	Overall we accept that the Residents were subjected to a poor quality of Care.  This does not reflect on the individual Staff Members whom it was accepted were caring in their approach.   However we find that the Staff had a very limited view of what constitutes neglectful and abusive practice which in turn relates to long standing systematic failings in the Management of the Home.   Mr Spencer told us that lessons had been learnt in this Case. We can only record our concern that the situation went unchecked for so long.  We have clearly set out the history and it is clear that concerns had been raised about Rosecroft for some time but no action taken. 

Decision

It is our unanimous decision that the appeal be dismissed. 

Order 

Pursuant to rule 14(1) of the Tribunal Procedure (First-tier Tribunal) (Health Education and Social Care Chamber) Rules 2008 an order prohibiting the publication of material which could lead to the identification of Service Users. This order is not time limited.  

Tribunal Judge Melanie Lewis
3 December 2012