W, R (on the application of) v National Care Standards Commission [2003] EWHC 621 (Admin)

Case No CO/4546/2002Neutral Citation Number: [2003] EWHC 621 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 17 February 2003
Strand
London WC2
B E F O R E:
MR JUSTICE MACKAY
Between
THE QUEEN ON THE APPLICATION OF "W"Claimant-v-
Between
NATIONAL CARE STANDARDS COMMISSIONDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR ROBIN ALLEN QC and MR P SPENCER (instructed by Gilbert Stephens of Exeter) appeared for CLAIMANTMR ROGER McCarthy QC and MISS TINA COOK and MR A WITHENDON (instructed by Legal Department of National Care Standards Commission) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE MACKAY: Since about 1988, W, the appellant, has owned and run a number of registered homes in and around the area of Exeter. These have catered for residents with significant learning disabilities, personality disorders and, in some cases, mental health problems of longstanding, sometimes serious in nature. By the time of the decision to which this Appeal relates there were three such homes in her ownership of relevance, namely, 1 St Anne's Road, Exeter, a home of which she was the manager, and two homes in Tedburn St Mary (near Exeter) - Plume Top and Five Mile Hill.[2]On 14 September 2000, 20 matters of complaint were formally put to her about her running of these homes by an inspection officer of Devon County Council, the registration authority for them. After discussions and representations were made on her behalf, the number of these complaints was progressively reduced until 19 September 2001 when the authority served her with notice of a proposal to cancel her registration in respect of these three homes on the ground that - "You are not a fit person to be concerned in carrying on a residential care home." Six main allegations were given in support of that notice.[3]Following further representations at a hearing from 12 to 14 February 2002, the last two of these six were withdrawn or struck out but the first four remained in issue and will be considered in more detail below.[4]She appealed against that notice, as was her right, to a Registered Homes Tribunal. After hearing her appeal the tribunal dismissed it on 5 September 2002, and she now appeals against that decision under Section 11 of the Tribunals and Inquiries Act 1992 as being a "person dissatisfied in point of law with that decision". The legislative background[5]Residential care homes were, at all times relevant to this appeal, required to be registered under the Registered Homes Act 1984 ("the 1984 Act"). The registration authority under Section 20 of that Act in this case was the Devon County Council. As from 1 April 2002 it has been the National Care Standards Commission. By Section 9 (1) (a) the registration authority has the power to refuse to register an applicant for registration in respect of a residential care home if satisfied that he or she is not a fit person to be concerned in carrying on such a home. The statute contains no definition of "a fit person". It is a trite but necessary observation to say that this whole legislative structure is plainly in place for the protection of the vulnerable and occasionally inarticulate section of society, and that has to be borne in mind when addressing such a definition.[6]By Section 10 (a) the authority has a discretionary power to cancel the registration of a person on any ground which would entitle them to refuse an application for his or her registration.[7]Though the 1984 Act has been repealed, it is accepted that it was the relevant legislation at the time of the matter with which I am concerned in this appeal.[8]By Section 15 of the 1984 Act an appeal against a decision of a registration authority lay to a Registered Homes Tribunal. These specialist tribunals were governed by the Registered Homes Tribunals Rules 1984. By Rule 5 (2) the authorities required not less than 30 days before the date fixed for the hearing of the appeal to send the tribunal and the appellant a "statement of the reasons for the decision". This document has been construed in the past as something less than a formal legal pleading or indictment to whose terms the authority is strictly bound. However it was said in R v Registered Homes Tribunal ex p Hertfordshire County Council (The Times, February 1996) by Tuckey J that it - "ought to be possible for an appellant and a tribunal to discern from the [statement] the factual matters in issue and the legislation relied on."[9]At this tribunal the appellant has the right to be represented and the tribunal sits in public. The appellant and the registration authority can call witnesses and cross-examine persons giving evidence in the normal way. The chairman has the power to compel the attendance of witnesses. By Rule 10 (2) the question of evidence is dealt with in these terms:
"The appellant, the registration authority or any witness may produce in evidence any document or information notwithstanding that such document would be inadmissible in a court of law and the tribunal may receive in evidence such document or information if the chairman of the tribunal is satisfied that it is desirable in the interests of justice to receive it."
Thus the tribunal is not bound by the rules of evidence and the chairman is given a wide discretion to include all evidence he or she thinks it is just to receive. At the conclusion of the hearing the tribunal is bound by Rule 11 (2) to - "notify the appellant and registration authority in writing of the decision and the reasons for the decision."[10]There had been a preliminary hearing on 1 May 2002 at which directions were given including directions that the respondent authority send the appellant all witness statements relied on and an order for inspection of documents. The result was that by the time the inquiry sat for the first time on 10 June 2002 there were two large bundles of documents. The authority's bundle ran to nearly 390 pages, and included witness statements of all its witnesses together with reports or statements or other documents relied on and referred to by each witness. The appellant's documents bundle ran to some 260 pages and similarly included witness statements of those to be called on her behalf, care records relating to 12 residents and various other documents. The hearing took place over 11 days between 10 and 14 June and 2 and 9 August 2002. Both sides were represented by solicitors and counsel. The respondent called 12 witnesses and the appellant 11, all of whose details are set out in the decision. The appellant gave evidence over a period of just under two days. Each side put in extensive closing submissions, the appellant 26 pages and the respondent 23. The decision was reserved and issued on 5 September. The Statement of Reasons[11]It is necessary to return to this document as it is, in effect, the agenda for the hearing which was to follow. The respondent argues, rightly, in my judgment, that it is not to be treated as a legal pleading or construed as such. On the other hand, it is not contended that the tribunal is constrained to consider only the matters raised in it, but that if new or substantially new issues emerge or are raised the tribunal would have had to consider, as a matter of fairness, extending the opportunity to the appellant to deal with that.[12]The reasons in the statement reflected the first four reasons in the notice of proposal to cancel in September 2001. They were these: first, that she had intimidated both residents and staff. Under this heading came certain sub-headings,(a) regularly and persistently using foul language,(b) bullying staff, residents and professionals,(c) generating a culture of fear,(d) being verbally aggressive to residents and staff,(e) imposing unreasonable rules, smoking and having drinks, and not abiding by those rules herself,(f) failing to treat residents and staff with respect and dignity,(g) denying residents freedom of choice to move within the home as they chose,(h) forcing residents by unreasonable means to take medication, (i) and (j) were not proceeded with by the end of the hearing so I will omit them, (k) forcing residents to work at the day centre against their wishes.[13]In the second ground it was said that the appellant had been unprofessional in her dealings with Health and Social Services professionals in that she(a) intimidated Health and Social Services professionals,(b) used verbal hostility or aggression,(c) used foul language,(d) was dismissive of the views of health professionals and refused to work with them.[14]The third ground was that she had failed to report a serious incident to the registration authority, namely an allegation of rape made by a resident - JK - against a male member of staff.[15]The fourth ground was that she had falsified NVQ evidence in that a member of staff was required by her to copy out the work of another member of staff and submit it as part of her own NVQ Level 3 portfolio.[16]Before the hearing started the respondent's counsel provided an annotated version of this statement with cross- references to the evidence in the authorities bundle for each particular allegation. The appellant's counsel at the outset had submitted that some material in the bundles was not relevant to the grounds of cancellation, was hearsay evidence and was prejudicial and asked for further and better particulars of the allegations. The tribunal's view, as recorded in its decision, was that the appellant had had sufficient notice of what was being alleged, that the tribunal had already had and read the bundles and they were "sufficiently experienced to weigh evidence which is hearsay and discount evidence which is not relevant to the grounds of calculation." They said that due weight would be given to the witnesses who had given evidence.[17]In their decision, having set out, first, the background and the statement of reasons relied on, the tribunal then summarised the grounds of appeal which were essentially a denial of the allegations based on this basis that so far as no evidence was relied on that was motivated by malice or jealousy or ill will towards her and, so far as professional witnesses were relied on, they had each ulterior motives for saying what they said. The tribunal then considered in summary form the evidence of both sides. They said they found the evidence of the professionals, both from the respondent's inspection unit and from the authorities which had placed residents in the appellant's care, to be "compelling". By this finding they must have been referring, and were referring, to Mr Lane, the registration inspection officer from 1995 to 1998 for the respondent, his predecessor Mr Still and the six witnesses called from the various health trusts who placed people in these homes.[18]The tribunal in broad terms rejected the allegation that these witnesses had acted from ulterior motives.[19]Two former residents who had given evidence were described by the tribunal as sincere, but one of them had been in contact with a former member of staff who was herself disaffected and that may have affected "the vehemence of her evidence". The particular former member of staff referred to was said to have fallen out with the appellant and argued violently with her. In her case there was an attack on her credibility by the appellant because she said there was evidence she had had an affair with the appellant's estranged husband. The former member of staff, Mrs Densham, denied that. As to that particular dispute, the tribunal said:
"There was no conclusive evidence about this and even if we accept that she did it it does not invalidate all of what she said. We bore it in mind when weighing up the evidence."
[20]They said that as a general proposition the authority's evidence came from four discrete groups of people: inspecting professionals, placing professionals, former staff and former residents. These, they believed, would not have been in contact with or colluded with each other before giving their statements. They noted, and were plainly struck by, what they called the marked similarities in the evidence which they thought laid weight to what was being said.[21]They summarised in broad terms the appellant's evidence in the course of which she had admitted some examples, for example, that she had used at times bad language but not in front of clients and accepted that she had not got on with a number of professionals, but otherwise she denied the allegations. She had called a current member of staff and two former members. The tribunal said they did not think those witnesses sounded rehearsed. These witnesses confirmed that cigarettes and drinks were rationed, cigarettes used as a sanction and some times as a reward. The appellant had called a general practitioner who provided medical care to the homes, three health care professionals and a social worker who had placed two clients with her. They accepted the sincerity of this evidence, all of which went to the effect that the witnesses spoke very highly of the appellant's care and the progress of their clients in her hands. They noted that they had had their contact with the appellant by arrangement and that they had not had disagreements or arguments with her.[22]In the next section of the decision the tribunal went on to make findings under the four grounds or headings of complaint in the statement of reasons. Their conclusion under the first was that the appellant - "used bad, foul and blasphemous language on a regular basis to both staff and residents and that the use of such language in a residential home is unprofessional and could be intimidating and demeaning to the recipient." The tribunal went on to remind itself this was one aspect only of the test of fitness.[23]So far as the general atmosphere in the homes, their finding was that there was concern expressed by residents when they knew the appellant was about to make an appearance at a given home and a particular remark from one particular resident was cited. They accepted that there was a blanket rule that cigarettes were only allowed at two-hourly intervals, that they were also used as a sanction and occasionally as a reward. They noted that all the professionals who gave evidence deprecated this practice, and that it was used to enforce compliance. They found that hot drinks were rationed to one every two hours though residents were allowed to drink water in between. Their overall conclusion on this topic was that the practice of using cigarettes as a sanction and limiting drinks was unacceptable and the rationing of cigarettes as a general rule for everyone was too rigid.[24]The tribunal then considered three specific incidents of forcible restraint involving individual residents on different occasions. They found that on the first such occasion the method and degree of force were inappropriate, that the second involved excessive force and confrontation. On the third occasion a resident had been held down and had medication forced into her mouth. On that third occasion they did not accept the appellant's denial that she was present when this happened and they found positively that she was. The only current resident who gave evidence said that incidents like this had happened lots of times and that other residents were sent out of the room when they went on.[25]They found finally that residents were compelled to go to the day centre, which was a smallholding attached to one of the Tedburn homes, but were not forced to work once they got there.[26]On the second main head relating to dealings with other professionals they accepted that the appellant did not intend to intimidate but did find that she was verbally aggressive, used foul language and refused to work with some of them. They gave as examples one nurse who cited an offensive remark being made to her and two other nurses who said they were treated with hostility. The tribunal was impressed by the apparent absence of motive of any of these three to fabricate and the confirmatory contemporaneous notes each had made. There was particular reference to dealings with Mr Bratt, a clinical psychologist with Devon Health Trust, with whom she had a difficult relationship which ended in a complete breakdown. The general finding under this head was:
"We find that the appellant was unable to detach her personal views and feelings about some professionals, in the interest of the residents, and as part of an ongoing professional relationship."
[27]The third ground was a single specific incident. The issue was not whether the resident in question had in fact been raped by a member of staff but how it was responded to. It was one which should have been reported to the registration authority within the period of 24 hours as required by Regulation 14 of the 1984 Regulations, which is a strict requirement. It happened while the appellant was abroad on holiday. The staff member receiving the complaint wrote a report, then telephoned the appellant for advice and was told by her to contact the police. The resident in question changed her allegation and withdrew it. The incident was reported orally to the resident's own social worker and a telephone message left - after some delay - with the registration unit. There was a technical breach, as the tribunal found, of the regulation and they said - " ..... if this was the only matter complained of it would not be a ground for cancellation in itself. The late reporting was a mistake but there was no attempt to cover up or hide the allegation. Where the allegation is so serious ..... we would expect a home owner to submit the report to the respondent in writing."[28]The final allegation was encouraging a staff member to plagiarise the work of another and submit it as her own to the NVQ. The appellant denied she had done this. The member of staff whose work had been copied was not able to produce his original work and therefore the best evidence here was not available, the direct comparison of the two pieces of work. They described in their decision the member of staff making this complaint as - "a sound witness. She had no reason to make up such an event." They found this ground made out.[29]Having thus addressed the four grounds in the statement of reasons, the tribunal expressed its conclusions, bringing the matter back to the question which was before it, namely, whether it had been shown that the appellant was not "a fit person". As this is the heart of their decision I should cite it in full. They said as follows:
"After considering the oral and written evidence we have found a substantial number of the respondent's reasons for cancellation to be well founded. We therefore find that the appellant is not a fit person. It was with some hesitation that we came to this conclusion. The appellant is a forthright woman in her early forties, who spent her own childhood in the care system. She stated that her motivation in starting her care work was to show that someone with her background could overcome it and help others. We do not doubt her sincerity and we expect that in the early years of her homes she was successful in her aims. We accept that many of the residents improved initially while at one of the appellant's homes. However by early 1999 she had 5 homes, 24 residents and 42 staff. The nature of the residents had changed in that they were a more challenging and complex group of people. In addition care practices develop and change, and the appellant failed to keep up with current methods of caring for such a client group, with particular reference to control and restraint, and encouraging independent living. In response to this investigation, while we bear in mind that she complained that the allegations were not specific enough, her response was one of denial. She has failed to be open minded and we do not consider that she is likely to be able to change her management style. She is a very determined woman who insists on having her own way. We find that her means of dealing with staff residents or professionals who disagreed with her is one of confrontation and intimidation. With the increasing demands on her and her staff her response was one of control and rigidity. She did care for the residents but she could not accept criticism or even suggestions for change, and she was not able to listen to advice."
They therefore dismissed the appeal. In this part of their decision the tribunal was plainly concerned to reach its overall view standing back from the particular allegations with which, no doubt, most of the hearing had been concerned.[30]In the appeal to this court an initial reading of the notice of appeal and the skeleton argument in support suggested in some places that an attack would be made on some of these findings of fact as either unreasonable, perverse or unsupported by the evidence - that no tribunal could have made. If persisted in this would have faced obvious difficulties, not least the absence of a transcript or agreed notes of the evidence heard. But it is expressly disavowed on the appellant's behalf by Mr Allen QC at this hearing before me. His preliminary point, as it might be called, related to the consideration of irrelevant evidence, not relating that is to specific grounds. It is undoubtedly true that, for example, Mr Still's long statement as part of the background recorded earlier allegations that had been raised against the appellant not included on the agenda for this appeal. No conclusions had been reached about these as he stated. I see no reason to doubt that the tribunal did discount this evidence and did not rely on evidence that was not relevant to the grounds before it. The complaint of Mr Allen, as I understand it, is that they should have identified the irrelevant evidence and said they held it to be irrelevant, as well as the relevant. It cannot have come as any form of surprise to this tribunal, in my judgment, containing as it did two professionals from this field, to have heard that a proprietor of such establishments had been in the past the subject of complaint. This must be an occupational hazard for those running such establishments. What is important is that no adverse conclusion was reached as a result of that, and, as I have said, I see no evidence that it was.[31]The main thrust of Mr Allen's submissions to me was that the reasons given for the tribunal's decision were inadequately expressed and insufficiently intelligible to such an extent that the decision is flawed and legally objectionable. Eleven specific areas of finding are attacked in this way.[32]Before considering them I must therefore set out what, in law, the obligations of such a tribunal are, this tribunal being one which has a statutory power, a statutory duty not merely to give its decision but to give the reasons for it. As the Court of Appeal held in Elliott and others v Southwark Borough Council [1976] 1 WLR 499 at 510 D:
"The duty to give reasons pursuant to statute is a responsible one and cannot be discharged by the use of vague general words which are not sufficient to bring to the mind of the recipient a clear understanding of why his request ..... is being refused."
[33]Both sides agree that the clearest expression of principle to be found as to what this means in practice is contained in the decision of the Court of Appeal in Meek v City of Birmingham District Council [1987] IRLR 250, where - sitting with the Master of the Rolls (Sir John Donaldson) who had been involved in several earlier decisions on this topic - Lord Justice Bingham, as he then was, considered the obligations of an industrial tribunal, a not dissimilar body from that which I am considering. He said:
"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted."
That passage suggests a three-stage process, the outlining of the story, the summary of basic findings of fact and a statement as to why and how those findings of fact lead to the final decision.[34]As Lord Justice Donaldson, as he then was, had said in the earlier case of Martin v Glynwed Distribution Limited [1983] IRLR 1198 at 202 in relation to that second phase, the summary of the basic findings of fact:
"So far as the findings of fact are concerned, it is helpful to the parties to give some explanation of them, but it is not obligatory."
[35]The tribunal with which I am concerned itself had its position considered by the Court of Appeal in Harrison v Cornwall County Council 90 LGR 81.

Lord Justice Dillon said at page 94:

"That reasons have to be given for the exercise by a tribunal of a power, even a discretionary power, is not in dispute ..... But it is not necessary, in my judgment, that the decision-maker should tabulate in his decision each and every factor either way which he took into account in reaching his decision, with the consequence that the decision can be challenged if it can be suggested that anything not actually specified in the decision as taken into account could have been relevant. The position is much the same as with decisions of industrial tribunals."
[36]Drawing these decisions together for the purposes of this case, I extract the following broad propositions. First, this tribunal is bound to give not just its decision but proper reasons for it. Secondly, those reasons, to be proper reasons, should enable the losing party to understand why he or she has lost. Thirdly, where it has been necessary to resolve "basic findings of fact" those should be expressed in a summary way, but one that is clear and comprehensible to someone with knowledge of the case. Fourthly, in reaching each such finding of fact the tribunal does not have to give a complete account of the evidence relating to it or the submissions made on either side of it or a recitation of everything it has considered. It does not have to descend to the level of detail which would be appropriate to be found in the judgment of a court of record governed by the formal rules of evidence. Fifthly, the findings of fact should be such as to be capable of rationally supporting the eventual final decision, in this case the question - unfit or not?[37]With that in mind I approach the particular points made on the findings in this case by Mr Allen on behalf of the appellant. The tribunal plainly accepted in large part the evidence of two former members of staff, Angela Densham who had been the manager of one home and had been dismissed, and Joanne Prowse. They were both very important witnesses on a number of matters. Mrs Densham was a key witness, for example, on allegations relating to the use of bad language, improper use of cigarettes and drinks as sanctions and improper use of force on patients. She had been sacked by the appellant in circumstances of some acrimony and was said to be motivated by malice towards her. On the basis of the evidence of an inquiry agent she was said to be conducting an adulterous relationship with the appellant's ex-husband which Mrs Densham denied. In the face of this denial, as I have said above, the tribunal reached the conclusion that they could not reach a conclusion, but that even if they could they would not think it was something which would invalidate her evidence. They bore in mind the allegation when weighing up her evidence.[38]In considering the evidence of this witness and the other witness it must be borne in mind the tribunal's finding that it was impressed by the similarities between the groups of witnesses who had not been in contact with each other.[39]Joanne Prowse the tribunal found to be a sound witness. In her closing arguments to the tribunal the appellant had said that her credibility was undermined by virtue of a relationship she was carrying on with the son of the appellant. She had also made allegations - with Mrs Densham - such as that unfit food had been supplied to residents, and these had not been picked up and put forward by the authorities. That was said to indicate an absence of credibility on both their parts.[40]In my judgment, it was no obligation of the tribunal's to recite in full all evidence which went in favour of or against the credibility of these two important witnesses. They reached a clear assessment of them. They knew that their bona fides in each case was under challenge and they made an evaluation of them as witnesses which is clearly made.[41]In a decision of this type I accept the respondent's broad submission that it is not necessary to load the task of the fact finding tribunal to the extent of requiring it to recite and then reject the points that have not found favour with them.[42]Similar points are made as to two former residents to whom I will refer as JK and RD. In their regard the tribunal's finding was that both "were sincere" though as I have said the tribunal did note that one of them - RD - had been in contact with a former disaffected staff member, namely Mrs Densham, which is something that might have affected the "vehemence of her evidence". Again, they made the point that there were marked similarities between the evidence of these two witnesses and that of others with whom they had not been in contact. For part of RD's evidence and the whole of JK's the tribunal sat in camera in circumstances that the parties are not able to agree, and, I will therefore assume, in circumstances which were imposed against the will of the appellant by the tribunal, presumably because it felt that the quality of the witnesses' evidence might be impaired if they gave it in the presence of the appellant. Her representatives of course continued to hear the case.[43]In closing submissions the appellant argued that RD was unreliable, had been untruthful in the past, had been manipulative, and on some of these allegations she had made concessions in her evidence to the tribunal. JK had made a serious allegation against a member of staff, that which appears in the fourth ground, and had then withdrawn it. Both sides, as one would expect, made detailed submissions as to why the evidence of these two should and should not be accepted.[44]My judgment is that the tribunal was under no obligation to go further than it did provided it made clear what weight it attached to the evidence of these witnesses. What is needed and what was supplied is a finding of the basic facts in a reasonable summary way, not a decision on each piece of the jigsaw of evidence and each final argument pointing or pulling in one direction or the other.[45]Mr Allen attacked the findings that the appellant used bad and foul and blasphemous language on a regular basis to staff and residents which was unprofessional and demeaning to the recipients. His complaint is that it is not possible to see how this has been reached or whether the tribunal has done any rationalisation. He asks rhetorically whether they have made any allowance for the context in which these remarks were made.[46]I find myself unable to accept these criticisms. The tribunal recited examples of the language said by staff, residents and the appellant herself to have been used. They reminded themselves in terms that a great deal depends on the tone of voice and the circumstances. They also reminded themselves to put out of account any personal prejudices that they might feel based on class or religious beliefs. In my judgment, having set its task out in that way a specialist tribunal is entitled to express its findings on such an issue as this in the way that this tribunal did. The question of the general atmosphere in the homes[47]The tribunal accepted that some residents were anxious about being told off by the appellant. They cited a remark from one particular resident on hearing of her impending arrival, saying, "Oh, my God, don't tell her I have been in my room," and of other residents generally expressing concern at her arrival. Mr Allen says of the person to whom this remark was attributed that on specific occasions he can be seen in the care records as saying that he was happy to be at Plume Top, as is clearly the case, and his father expressed similar views. He was however not the only resident said to have expressed such views. His general happiness at Plume Top could well have co-existed with a feeling of oppression on the occasion of the appellant's visits and was not inconsistent with it or a complete answer to this charge.[48]I cannot accept that this finding at all events was not adequately articulated and expressed.[49]Drink and cigarettes: as to the use of these in any improper or unprofessional way, the actual findings are clear. The tribunal accepted that it was what it called "a blanket rule" for all residents - with one noted exception - only to be allowed cigarettes at two-hourly intervals.[50]In my judgment, it is nothing to the point to argue, as the appellant seeks to, that for some residents one can see, as is clearly the case, that such a stipulation is written into their care plan by the health professionals responsible for them. The point the tribunal is making here is this was a universal rule, universally applied, and that it was that feature of it which was wrong. Also the handing out of cigarettes was effected or withheld as a sanction and/or a reward. Their finding to that effect led into the opinion from all the professionals who gave evidence (therefore presumably on both sides) who deprecated it as a practice. Mr Allen argues that individuals required boundaries in both these areas and that must be right. Equally, this tribunal, specialist as it is, must be taken to have known that in such establishments there have to be rules, there have to be limits.[51]The matter of drinks was also considered separately and again the finding is that as a matter of practice these were limited to one every two hours. The tribunal's description of this as unacceptable was on the basis that it was too rigid as a policy. Mr Allen's point is that it is not possible to reach this finding or to understand the nature of this criticism of the tribunal without looking at the position of each individual resident.[52]In my judgment, this too is adequately expressed. It was at the heart of this failure, as the tribunal saw it, that the appellant was not looking at the position of each individual resident on his or her own merits and that that is what they were criticising.[53]There were three occasions in which evidence was given as to inappropriate use of force or methods of restraint by the appellant on individual residents. The first - LC - had become hysterical on an occasion in September 1997 and in the culmination of this event the appellant had admitted slapping her face. The finding here was that in the face of the appellant's argument this was the only way of calming this resident down. The tribunal's view was the amount of force and method of restraint used were inappropriate.[54]The criticism made against this finding is that there was much conflicting evidence about this particular allegation. It was not reported at all until late on and it was not in the original list of 20 complaints to which I have referred above. It was not mentioned by the principal witness of fact, Mrs Densham, until about October 2000. On any view of this incident from the contemporary documents it can be seen that LC was seriously out of control and causing physical damage within the home. What, asks Mr Allen rhetorically, was the appellant to do about it? What was the appropriate method of restraint? The answer to this last point is pre-eminently, in my judgment, one for a tribunal such as this, whose members are chosen for their knowledge of this area of care and need no expert assistance to help them set the standards or decide whether it is ever acceptable to restrain a highly disturbed resident in this way. They set what the standards are and that is something fully within their function.[55]Again this is another example of a finding where I do not believe they have to recite all the conflicting arguments of either side on the basic facts.[56]The second restraint was involving a resident called RM. Again I have been taken through the various contemporary reports and statements relating to this matter. Here, on 6 March 2000 Mr Lane, the registration and inspection officer, having looked into this complaint, wrote to the appellant's solicitors and said that the allegations against her and her husband, who was also implicated in the alleged improper restraint of RM, were not substantiated and no action was contemplated against either of them. The tribunal was plainly entitled to take a different view and they did so, and they said why. They said that they were assisted by three separate and independent reports of the incident including one written by RM himself on the day of the occurrence in which he described himself as shaking violently and very badly after being hurt. One of the other three reports to which they are referring is plainly that of the carer who witnessed it.[57]The complaint made by the appellant about this finding is that here the tribunal is finding proved an incident which the respondent's own relevant officer two years before had not found proved. The argument is not that they were not entitled to take a different view of the facts - because plainly they did and plainly they were - but they have not accounted sufficiently for their having done so.[58]In my view they have done that, albeit in a summary and short way, by giving their reasons, the three separate and independent reports written close to the event. I can understand that the appellant finds this, as a finding of fact, difficult to accept. But I cannot understand that she should have difficulty in understanding what it is that has moved the tribunal to make it because that is plain on the face of their decision, in my judgment.[59]The third such incident involves a resident MG. Again, as in the other cases, this arose out of the difficult question of compelling residents to take medication. Here there was a contemporaneous day book entry, according to which the appellant was physically present and involved in the restraint and forcible medication of this resident. The appellant denied in evidence that she was there and the maker of the day book entry denied she was there too, but was unable to account for what she had written in the day book. Mrs Densham, and the patient herself in her witness statement, gave a clear account that she was present. This is very typical of the type of acute conflict of evidence that the tribunal faced at various points in their decision.[60]The appellant again argues that they have failed to explain in their reasons how they did reach a resolution. Again it is possible quite simply and shortly to see what impressed the tribunal. Two pieces of the evidence are cited, the entry in the day book and the statement given by the resident herself which enabled them to find, on the balance of probabilities, that not only did this incident occur - as to which there was no dispute - but that the appellant was present and active in it. These reasons, in my judgment, are entirely adequate and enable the reader to understand why it is the finding has been reached. Dealings with other professionals[61]It is not said in the decision nor was it, as I understand it, the respondent's case that this hostile attitude was shown by the appellant to all such persons, only to some. The tribunal found that three nurses who had given evidence of verbal abuse - one of them of having been called "a fucking bitch" by the appellant - had no reason to lie and had all made contemporaneous notes. One social worker gave evidence of an aggressive response by the appellant to what seemed a standard response for information about a client. The appellant admitted that she had a problematic relationship with one inspection officer and that her relations with a clinical psychologist from Devon Health Trust, Mr Bratt, about whom she used very critical language, had eventually broken down completely in such a way that there was no communication between them. As against the six examples, Mr Allen argues that there was evidence from eight other professionals with whom she had regular dealings, that they enjoyed a normal relationship with her and no account seem to have been taken of that fact in the tribunal's decision. The concluding sentence of this section of the decision reads:
"We find that the appellant was unable to detach her personal views and feelings about some professionals, in the interest of the residents, and as part of an ongoing professional relationship."
[emphasis added].[62]It is plain that they realised this was not a universal or invariable problem, but it is a finding they were entitled to make on the evidence and which they did make with clarity and in an unambiguous way.[63]The third ground was the allegation of rape made by a resident - JK - against a male staff member, reporting it to a female staff member who, in turn, reported it to a female staff member who, in turn, telephoned the appellant who was abroad on holiday and sought her advice. The facts were not in issue. Nor was the fact that Regulation 14 imposes a strict duty on the owner to report such happenings to the authority within 24 hours, and that was not done. The complaint made here is that the tribunal's conclusion was that this was only a technical breach, not one which on its own would justify unfitness "in itself". They said that the late reporting was a mistake but that there was no attempt to cover up or hide the allegation. What, asks Mr Allen rhetorically, significance did this incident have in their overall analysis? It is not possible to detect. He says that it either should have been excluded altogether, in which case the tribunal have said so, or proved, which clearly it was not, at least not in its full rigour.[64]The respondent says that the tribunal is placing some weight on the findings but not a weight of any great significance, that they were entitled to do that as these regulations are strict and made for the protection of vulnerable people and the tribunal is entitled to leave this allegation in the scales as carrying some slight weight in the overall exercise.[65]In my judgment, that analysis is right. That is what the tribunal appears to have done and said it was doing. And, in any event, this ground was not significantly influential, as I read it, in the making of the overall decision.[66]Finally, the fourth ground relied on was an allegation that the appellant had instructed Joanne Prowse, a care worker, to copy out another care worker's work and submit it to the NVQ as if it were her own, to obtain a Level 3 qualification. In fact in 2001 there was an investigation by the City and Guilds, who issue such qualifications, not limited to Joanne Prowse but to the effect that a number of trainees in the applicant's employment were having portfolios fabricated for them. Devon County Council, on 31 October, reported to the appellant's solicitors that they had found no evidence of malpractice. Contemporaneous documents from the City and Guilds which were before the tribunal showed that they were looking at a number of alleged cases of plagiarism and had been "unable to find evidence to support" the allegations. Specifically they had looked at Miss Prowse's work as did Devon Training for Skills, a different arm of the County Council from the Registration and Investigation Unit.[67]The City and Guilds concluded that they were "unable to comment" on Miss Prowse's statement as to her own portfolio. It is plain from a reading of the documents that they had not got Mr Johnson's paper for comparison, which would have been the only true test to a level of any form of certainty as to whether this allegation was made out. They were therefore to that extent in the same position as the tribunal. Devon Training for Skills concluded that they was therefore no reason to query its authenticity, looking at the Prowse report, from an internal or external verification view point.[68]These findings, in my judgment, while plainly relevant, left the matter open for decision by the tribunal to form the view that it did form. It had the evidence of Miss Prowse before it and decided that she was "a sound witness with no reason to make up such an event". It rejected the notion that this story was a malicious invention. It was entitled to form this view. The basis of the decision is expressed. Again there is no need to recite lengthy indications such as they were from the various investigations into this matter if they were not moved by them, as they were entitled not to be. The last four lines of this ruling can only be read, in my judgment, as intended to be complimentary of the appellant's attitude towards employee training and is an appropriate epilogue to their finding on count 4, putting, as it were, the other side of the coin, that which favours the appellant. That led to the concluding passage in the decision which I have set out in full above.[69]Properly and necessarily as I have said above the tribunal stood back from the detailed grounds it had been considering. It had worked through those grounds in a structured way. It had made basic findings of fact and then in its conclusions it looked at the overall picture, both in its negative aspects as well as the positive aspects which favoured the appellant. It reached a conclusion which is adequately stated, which is comprehensible and plainly based on the evidence it heard.[70]In the context of this case and despite the criticisms made in this appeal, I find no justification for categorising this decision as legally flawed to the extent that is necessary to call for interference with it by this court as being the product of a legally erroneous approach. In my judgment, it is not, and for those reasons I dismiss this appeal.[71]MR WITHENDON: There is an application on behalf of the respondent for its costs; perhaps I can hand up a schedule. This was served upon my friend the day before the hearing before your Lordship. At the outset - and it will be readily apparent when you see it that it is not in the form prescribed by the Civil Procedure Rules and is a very brief document - the first page sets out the costs incurred. On the second page there are the specific details as to Mr Lane's costs. On the third page there is the differentiation between the legal costs, and they were basically counsel's. There is one addition of £400 to cover costs of today's hearing which should be added on top. So far as the detail is concerned, all I can say is this. In a schedule which my learned friend has handed to me today - in relation to the appellant's costs those were to be claimed in the sum of £22,417.[72]MR JUSTICE MACKAY: I never know to what extent you can look at the other side's when looking at these.[73]MR WITHENDON: I would say that it is indicative. I appreciate that you have no detail, but they are modest in my submission.

MR JUSTICE MACKAY: Mr Spencer, this is not in the sort of form one would expect.

[75]MR SPENCER: No.[76]MR JUSTICE MACKAY: You are fully entitled to say "How can I get in behind it if I do not know how many hours are claimed and what the charging rate is." But on the basis that £7,500 is for both counsel, and the solicitor is only claiming £638, do you have anything to say to me on these?[77]MR SPENCER: No, save this, and can I deal with it in this way? I am instructed that in relation to the legal fees incurred for two counsel and solicitors, in the light of our own costs counsel and solicitors on behalf of the appellant were effectively engaged in setting out the grounds and preparing for the case. In relation to Mr Lane's costs, my instructing solicitor points out that Miss Cook was present throughout the course of the 11 days' hearing.

MR JUSTICE MACKAY: Are you saying you should not pay for Mr Lane?

[79]MR SPENCER: Yes, because the solicitor was here on the appeal before your Lordship on Friday, as was Miss Cook.

MR JUSTICE MACKAY: They could field any questions about what went on at the hearing.

[81]MR SPENCER: And indeed they did.[82]MR JUSTICE MACKAY: They did. That is a fair point. As to the rest of it, what about the legal costs? You are entitled to say, if you want to make something of it, we want something better than this and we had better go for detailed taxation. The question is do you want to?[83]MR SPENCER: Perhaps I ought to have a formal schedule at some point so my solicitor could have a look at it. On the face of it, I would have to concede that it does not appear .....[84]MR JUSTICE MACKAY: It does not seem outrageous. What I will do is to say - I do not know whether I have power to say this - if I summarily assess them (and I was thinking of taking out Mr Lane, I think your point about him is right) the extra £400 is today's attendance effectively.[85]MR WITHENDON: Yes.[86]MR SPENCER: Just in relation to that, it is always slightly invidious but my fee is significantly less than that and one never .....[87]MR JUSTICE MACKAY: It is swings and roundabouts, Mr Spencer. It sounds as if you probably did better on the brief fee.[88]MR SPENCER: It is always unsavoury.[89]MR JUSTICE MACKAY: You have to do it. Can I do this is what I am saying.[90]MR SPENCER: Perhaps we ought to have a schedule because we do not know how the figure is made up. We know that Mr McCarthy was instructed on Wednesday and Mr Allen, on behalf of the appellant, was instructed shortly after the judgment was given in September. I know he has had two conferences, one of which was exceptionally lengthy. While there is disparity there is no .....[91]MR JUSTICE MACKAY: There is no virtue in my making an order nisi because if I send you off for a detailed assessment no doubt they will give you a better breakdown and hopefully you would agree without the need to trouble anyone. If there are disputes it should be done on detailed assessment. The answer is you may have your costs, having succeeded in the appeal. I will say A's costs - detailed assessment. I will give you an interim payment on account of costs of £7,500. If they want to argue the balance they can do so on detailed assessment. You had better persuade them that you have a more convincing case than is set out here.[92]MR SPENCER: I am grateful.[93]MR WITHENDON: I take it from that you have indicated that Mr Lane's costs .....[94]MR JUSTICE MACKAY: I indicate, understandable though it was for him to be here from his own point of view, or others, I do not think it was necessary or reasonable to charge you with it. I would disallow his costs but I allow a reasonable fee for counsel attending this judgment this morning.[95]MR SPENCER: Can I raise one matter? Your Lordship knows that the judgment in this case has significant ramifications for the appellant.

MR JUSTICE MACKAY: Yes, obviously in terms of her interests.

[97]MR SPENCER: Her name will go on the list of cancelled persons. Effectively she will be prevented from running or being involved in any way .....

MR JUSTICE MACKAY: Can you never come back from this position?

[99]MR SPENCER: She can make an application, as I understand it, in 10 years time to be restored.

MR JUSTICE MACKAY: In how many?

[101]MR SPENCER: In 10 years time, if my understanding is correct.[102]MR JUSTICE MACKAY: You do not need to persuade me this is not a very serious decision with consequences for her. I can see that plainly.[103]MR SPENCER: In relation to the judgment we would like to reflect on it but, as you accept, it raises important points - fundamental matters - so far as the appellant is concerned. On that basis - I cannot put it any higher at this stage - we would seek permission from your Lordship to appeal to the Court of Appeal.[104]Can I raise one matter in relation to the evidence of Joanne Prowse? Your Lordship focussed in, as you must and you were entitled to do, on the evidence presented by the City and Guilds in relation to whether there had been copying out and plagiarism by Joanne Prowse at the behest and encouragement of the appellant. Your Lordship made reference to the fact that there appeared to be some evidence before the City and Guilds that others had been involved in that. With respect, there was no evidence of that before the tribunal. The tribunal focussed on the single issue of whether there had been proper evidence before the tribunal that Miss Prowse herself had been encouraged to plagiarise her NVQ at the instruction of the appellant. Clearly the judgment was given in great detail and great length after careful consideration of the issues on Friday. Without wishing to be .....[105]MR JUSTICE MACKAY: Do not be bashful. If you are asking for permission to appeal you have to persuade me that you have reasonable prospects of succeeding in showing that I am wrong. Do not feel inhibited about that. I can be as wrong as the next person.[106]MR SPENCER: In the light of that the case falls down as the law appears to be clear in the Meek and Elliot cases. This case must fall down to your Lordship's interpretation and understanding of the facts. Whilst the respondent will take some encouragement that you have concurred with the careful views of the tribunal formed over their analysis and consideration of the evidence over 11 days, your Lordship has had less time to consider it from the papers, that it is clear and you are assisted by the judgment. Clearly in relation to the facts, the facts fall to be interpreted. In our submission there were powerful and cogent reasons set out in the skeleton argument for a different interpretation of the facts in the light of the submissions made in each of the four respects that your Lordship has identified and we have in the skeleton. We submit that this would be an appropriate case for permission to be given to appeal to their Lordships' House should the appellant wish to pursue her remedy further.[107]MR JUSTICE MACKAY: Thank you. I understand entirely the position. I am afraid I am going to refuse permission in this case. You must see if you can interest the Court of Appeal in it, but I do not see, in a case of this sort, real prospects of success. You must try elsewhere.(Judge confers with the court associate). When will it be paid - 28 days?[108]MR SPENCER: Can I ask that that £7,500 be paid within 28 days?

MR JUSTICE MACKAY: 28 days would seem reasonable to me.

[110]MR WITHENDON: I have no objection.

MR JUSTICE MACKAY: Is that to include VAT?

[112]MR WITHENDON: I think that would include VAT.

MR JUSTICE MACKAY: To include VAT.

[114]MR SPENCER: Can I mention one other matter, a factual matter? At about 11.35, when your Lordship was dealing with the resident MG, you fell into the error, which we have all done, of referring to MG as a patient or an in-mate. You used on several occasions the word "patient". He was a resident; it is a minor matter.[115]MR JUSTICE MACKAY: No. It is not a minor matter, it is important. You were right to pick me up. I was conscious of trying to use the word "resident" and probably failing. I will get the chance to correct the transcript so .....[116]MR SPENCER: It was at about 11.35. It is MG. It was done twice.[117]MR JUSTICE MACKAY: Thank you for pointing that out. I will correct that on the transcript. ------

Cited in 1 later judgment