Maynard v Care Quality Commission [2009] UKFTT 268 (HESC)

FTT-HESC
Maynard v Care Quality Commission
[2009] UKFTT 268 (HESC) · 2009-11-09
[1]This is an appeal by Ms. Vida Maynard under Section 21 (1) of the Care Standards Act 2000 against the decision of the Respondent dated the 15 th December, 2008, to refuse an application by Ms. Maynard for registration as a provider and manager of a domiciliary care agency. Preliminary Issues[2]The Tribunal considered at the outset of the hearing whether to make a Restricted Reporting Order under Rule 14 (1) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (hereinafter called “The Rules”) but after hearing representations from both parties made no order. Facts[3]On the 31 st July, 2008 Ms. Maynard submitted an application to the Respondent’s Birmingham Office for registration of a domiciliary care agency which she intended to call Mayberry Care Services. On page 14 of the application Ms. Maynard set out the documents that she was enclosing with her application. Those included a curriculum vitae, certificates in relation to various qualifications that she had obtained a statement of purpose for the proposed service and a business plan.[4]Ms. Maynard’s curriculum vitae indicated that she had been employed as a Senior Care Assistant at Wishbone House, between March, 1993 and September, 1993 and that between December, 1995 and December, 1997 she had been employed as a Relief Scheme Manager at Loxton Court (Anchor Trust) and from December, 1997 to date was employed by Anchor Trust as a Scheme Manager. In addition from February, 2005 to date Ms. Maynard had also held the position as a Casual Community Care Assistant at the Laurels. Ms. Maynard set out in her curriculum vitae various tasks that she had undertaken in relation to the jobs that she had held.[5]As far as qualifications were concerned these were listed in the curriculum vitae and included a Care - BTEC First Diploma (September 1993 to June 1994), an Instructory Course in Counselling (December 1993), an Intermediatory Course in Counselling (January 1994) and Social Care – BTEC National Diploma (September 1994 to June 1997), all of these having been obtained at East Birmingham College. At Handsworth College Ms. Maynard had taken courses in word processing, database and accounts during 1999. At Josiah Mason College Ms. Maynard stated that she had gained an NVQ Level 4 (Care) in October, 2003. Ms. Maynard also gave details of in-house training that she had undertaken with Anchor Trust as well as external training that she had completed.[6]The Statement of Purpose submitted Ms. Maynard gave details concerning Mayberry Care Services and its aims and objectives. It was stated that:- “Mayberry Care Services is a company, totally committed to providing the highest quality community placement support and domiciliary care to adults with learning disabilities, associated and complex needs, to enable individuals to live as independent as possible in society.” The following statement was also included under the heading “Nature of Services provided”:- “ Mayberry Care provides rented accommodation, support and care services for adults with learning disabilities, aged between 18 and 64, some who have associated needs or challenging behaviours.”[7]The Business Plan submitted by Ms. Maynard also gave further details of Mayberry Care Services, their proposed clientele and how Mayberry’s services would be delivered, the Plan included the following:- “Mayberry Care Services is a company, totally committed to providing the highest qualify community placement support and domiciliary care to adults with learning disabilities, associated and complex needs, to enable individuals to live as independent as possible in society.”[8]Ms Maynard’s application was considered by Ms. Jane Walton, a Regulatory Inspector with the Care Quality Commission, who provided a witness statement in these proceedings and also gave oral evidence at the Tribunal hearing. Ms. Walton stated that Ms. Maynard’s application was to become the registered provider of Mayberry Care Services. In her application form Ms. Maynard had indicated that she would be the Manager of Mayberry Care Services and as the Commission had not received a separate application for a Manager of Mayberry Care Services, Ms. Maynard’s application was treated as a dual application to be both the registered proprietor and the manager.[9]In terms of the experience the Commission were looking for in an application to be a registered manager, Ms. Walton stated that there was an expectation that a registered manager would have at least two years experience within a senior management role. This did not necessarily have to be within the service area in which they wished to practice, but if not within a care environment they would need to demonstrate that they had a transferable skill.[10]In respect of both the registered manager and the registered proprietor the Commission had an expectation that an applicant would have two years experience of working within a domiciliary care environment. As far as the proposed service user group was concerned the Commission expected an applicant to have had suitable experience of the group to whom they were applying to deliver a service, for at least eighteen months to two years. In the case of the service user group with whom Ms. Maynard was proposing to work, given the complexity of those clients, Ms. Walton stated that the Commission would expect someone to have had experience and training of working with people with challenging behaviour.[11]As far as qualifications were concerned, Ms. Walton stated that in relation to management there was an expectation that an applicant would have been working as a manager and might have a NVQ Level 4 in Management or an equivalent qualification or be in the process of obtaining such a qualification. In addition to have done training in relation to the client group with whom they were expecting to work, to include training regarding adult safeguarding and the administering of medication.[12]After Ms. Maynard submitted her application she was then sent a pre-interview questionnaire to complete which she duly did, her response being dated the 29 th October, 2008. Ms. Walton in her evidence stated that on the whole she found the answers provided Ms. Maynard to be satisfactory, save for the areas indentified by Ms. Maynard as ones that she might need to improve upon, so that the people who used her services benefitted from a well run service. Ms. Maynard in answer to this question about areas to improve had identified gaps in her computer and administrative skills. Ms. Walton was concerned that she had failed to identify what Ms. Walton regarded as a far more serious gap in her knowledge, namely in the provision of a service for people with learning disabilities.[13]On the 30 th October, 2008 Ms. Walton conducted a “Fit Person Interview” with Ms. Maynard. Ms. Walton’s notes of the interview together with a typed version were provided to the Tribunal. Those notes indicate that Ms. Maynard was asked about her skills and experience relevant to managing the service for which she was seeking registration. Ms. Maynard had stated that her current employment related to people over 55 years of age and that she was responsible for health and safety. She dealt with tenancy agreements and finances, but did not do hands on care at the scheme where she worked. She liaised with social services to provide care if a tenant required it. The domiciliary care agency concerned would then supply the carers that were needed.[14]In terms of management Ms. Maynard said that she trained relief managers at the scheme as part of her job and had recruited two cleaners. She was not the relief manager’s line manager, but she did do their induction. She managed the two cleaners which included doing their appraisals and induction. As far as experience with people with learning difficulties was concerned Ms. Maynard said that she had none and had received no training at the Laurels in respect of people with learning difficulties. She worked there for two or three days per month and weekends, where her training had been in such areas as health and safety, back care and manual handling, first aid and food and hygiene. The Laurels was a respite service for people with learning difficulties. There was a one day behavioural course which she had not done. She had arranged to do some medicines training with Boots. At the Laurels Ms. Maynard said that she worked with the clients and was responsible for washing, dressing, activities, supporting in the community and also supporting with food and exercising choices. She wrote up a daily report.[15]As far as management experience or qualifications were concerned, Ms. Maynard stated that she was doing a RMA at Josiah Mason College which she had started in August, 2008 and which she hoped to complete soon, but was not sure when.[16]Ms. Maynard was also asked in the interview about the services that she proposed to provide. She explained that she had leased a property at 34 Wallbank Road for residential use and Mayberry Care Services would provide supported living accommodation when they received referrals for people with learning difficulties between the ages of 18 and 65.[17]There were also questions put to Ms Maynard regarding the legal framework that existed for running a domiciliary care agency, staffing and the safeguarding of clients.[18]Ms. Walton in her evidence indicated that Ms. Maynard had submitted a range of policies and procedures for Mayberry Care Services which the Commission had considered as part of Ms. Maynard’s application. In the typed notes of the interview (although not the handwritten notes) there is reference to some of the policy documents entitled “Assistance with Medicines Procedure” with the note stating as follows:- “ This policy states “it will be the responsibility of the manager to ensure that all clients have an adequate supply of medication and that repeat prescriptions are arranged. “The Home Manager will enter into an agreement with an NHS pharmacy …………….” Ms. Walton stated in her evidence that in her view this document did not demonstrate sufficient knowledge of the administration of medication within a domiciliary care setting, that the wording was more appropriate for a care home rather than a domiciliary care agency.[19]Although not recorded in the notes of the interview Ms. Walton in her evidence stated that she explained to Ms. Maynard that she did not consider that Ms. Maynard had sufficient experience in the care management or working with people with learning difficulties. That she had told Ms. Maynard at the end of the interview that she proposed to refuse her application for registration and she had then explained to Ms. Maynard the options that were open to her. In particular that she could employ a manager and be the registered proprietor herself, she could withdraw her application or have it determined on the basis of the evidence submitted. There was also a discussion about a potential conflict of interest if Ms. Maynard provided the rented living accommodation to service users for whom she was also providing domiciliary care.[20]The typed notes of the interview under the heading “Summary” included the following:- “Applicant’s PIQ responses are adequate. The applicant has a very inadequate experience with working with the client group for whom she wishes to provide a service for. She has undertaken no relevant training relating to caring for people with Learning Disabilities. She is currently undertaking RMA course, however her current employment does not involve line management of carers, and may therefore find it difficult to provide robust evidence in order to complete the course. She has no previous line management experience. The applicant has no experience of working within a DCA setting.”[21]On the 31 st October, 2008 Ms. Maynard wrote to the Commission enclosing an amended Mayberry Care Services, Statement of Purpose and a Client Information pack stating in her letter:- “It was clear from your visit that providing domiciliary care and supported living services together is not going to be possible.” The introduction to the amended Statement of Purpose reads as follows:- “Mayberry Care Services is a new company offering adults with learning disabilities a home, support, care and new opportunities to suit their specific needs.”[22]Ms. Walton’s evidence was that she had then discussed with the Commission’s Mr. Graham Martin, a Registration Regulation Manager, the documents submitted by Ms. Maynard and what had been said at interview. Mr. Martin provided a written statement in these proceedings and also gave oral evidence. Mr. Martin confirmed that he had considered the Appellant’s application and had had discussions with Ms. Walton regarding the Fit Person interview. In his evidence he gave details of the experience, training and qualifications that he considered a provider/manager required in the context of working with people with learning disabilities, including those with challenging and complex behaviours. In doing so Mr. Martin made specific reference to the Domiciliary Care National Minimum Standards, with particular reference to the National Minimum Standards 19.8 and 20.5.[23]Mr. Martin in his evidence also commented on some of the policies and procedures that had been supplied by Ms. Maynard and indicated that he did not consider that the documents regarding the medicines procedure were correct in that they appeared to be contradictory and in his view it was essential that Ms. Maynard had training in this area. In relation to the staff handbook Mr. Martin said that overall he considered it to be reasonably satisfactory, although there was an absence of satisfactory standards to be delivered to the service users and it did not say how a manager would follow up any allegations of abuse. He was also concerned about the answers that Ms. Maynard had given at interview in relation to safeguarding procedures. There was also no statement within the handbook about record keeping, guidance was required on what a care worker should record, this was important information that needed to be available to other workers. Mr. Martin also expressed concern regarding the client assessment procedures and emphasised the need for the documentation to contain a description of an individual service user’s vulnerability, so that they received the appropriate care. Mr. Martin indicated that the British Institute for Learning Disabilities (“BILD”) provided training programmes on the assessment of people with learning disabilities and professional practice in this area.[24]Mr. Martin’s evidence was that after considering Ms. Maynard’s application he was not satisfied that she had sufficient qualifications, skill and experience as required by Regulations 9 and 10 of the Domiciliary Care Agency’s Care Regulations 2002 (“the regulations”). As a result he had sent a Notice of Proposal to Refuse Registration to Ms. Maynard on the 15 th December, 2008. The letter set out in some detail the reasons why the Commission were refusing to register Ms. Maynard, based on the documents she had submitted and her interview with Miss Walton.[25]Ms Maynard responded in a letter dated to the Commission dated the 12 th January, 2009. In relation to her knowledge/qualifications Ms Maynard stated that she had completed some in-house training on the protection of vulnerable adults and had spoken to Millennium Care (a Domiciliary Care Agency) and the manager of the Laurels about their procedures. The reason for not having received any training specific to caring for people with learning difficulties was because she could not physically fit this in around working weekends and bank holidays. She acknowledged that there were gaps in her required knowledge in relation to providing a service for people with learning difficulties, but she was constantly training and updating her knowledge to fill in these gaps. Ms. Maynard then gave details of the experience that she had had of providing personal care with Anchor and prior to that at Wishbone House as well as during the work placements whilst at college and at the Laurels. In addition she had cared for her father after he had had a stroke. In relation to obtaining qualifications and knowledge in the management of challenging behaviour or complex needs, Ms. Maynard again stated that she could not fit this in around working weekends and bank holidays, but was planning to take on some training in the new year with the Birmingham Care Development Agency.[26]In regard to her skills and experience Ms. Maynard stated that she believed that she had gained skills whilst a manager at St. Oswald’s which were transferable to running a domiciliary care agency. She was the line manager for Relief Managers and cleaners as part of her work at Anchor. Whilst she did not do the care herself in relation to the tenants, she did arrange care packages from outside agencies. Although she did not have any direct experience of assessing people with a learning disability she did have experience of assessing the elderly and she considered the process to be the same and therefore her skills were transferable. As far as the conflict of interests was concerned in providing clients with accommodation as well as domiciliary care, Ms. Maynard stated that clients would hold a tenancy with GS Holdings Limited and not Mayberry Care Services.[27]Ms. Maynard challenged the assertion that she did not have a sufficient or detailed knowledge and understanding of the role and responsibilities in relation to being a proprietor ; she submitted that she had demonstrated that she did have the knowledge by drawing up the policies and procedures that she had presented. A considerable amount of investigation had taken place over a number of years in regard to the policies and procedures that would be needed in running Mayberry Care Services.[28]A number of documents were appended to Ms. Maynard’s letter including information on medical training courses and the role of the Scheme Manager at Anchor. In relation to the latter this included the following information:- “…The Scheme Manager can play a valuable role in feeding back to the health and care agencies involved in delivering a care plan, in consultation with the Tenant, whether or not the care plan is working and whether any changes are required. If the care plan is not working the Scheme Manager can play a role as the Tenant’s advocate, should the tenant agree to this approach….”[29]Mr. Martin stated that he had considered Ms. Maynard’s letter and acknowledged that it showed willingness on her part to learn and demonstrated some skills and knowledge that would be transferable to a domiciliary care setting. Ms. Maynard had recognised that there were gaps in her knowledge, but did not appear to understand the size of the gap. In particular there appeared to be little understanding that there might be a big difference between caring for an older person on discharge from hospital and the extensive support required for a person with a learning disability living in the community who additionally had challenging behaviour and complex care needs.[30]Ms Walton stated that Ms. Maynard’s written representation s as set out in her letter of 12 th January were considered by Mr. Gerald O’Hagan, a Deputy Regional Director in a different region of the Commission, who had had no prior involvement in Ms. Maynard’s application. He had written to Ms. Maynard on the 28 th January, 2009 confirming that the Notice of Proposal to refuse her application dated the 15 th December, 2008 would be upheld. In his letter of the 28 th January, 2009 Mr. O’Hagan stated as follows:- “The reason for my determination is that I am satisfied that:- You do not have sufficient knowledge and qualifications (for example about the range of needs that the people with learning disabilities can present with – including challenging behaviour). You do not have sufficient skills and experience (for example, with respect to managing care staff and work with people with learning disabilities, and with respect to the proposal of Mayberry being landlord and care provider). Some of your answers to questions about care for service users, in particular your answer to the question about what action you would take if an incident of alleged abuse was reported to you – would not safeguard service users well enough.”[31]On the 25 th February, 2009 Ms. Maynard appealed to the Tribunal against the Commission’s refusal of her application. In her appeal letter she stated that she had hands on role as a support worker at the Laurels in Stechford, Birmingham and had been working with that organisation for four years. She supported a range of users with various learning disabilities some of whom have physical disabilities. She had an NVQ 4 in Care and was currently in the process of completing her Registered Manager’s Certificate. She had managed a sheltered housing scheme for over 55’s for the past twelve years, the staff that she managed there, were the relief scheme manager and two domestic staff. She had for the past six months been on secondment for Anchor Trust as Area Scheme Manager covering 16 schemes in Birmingham, Wolverhampton and Bilston. There were over 300 clients in these schemes and Ms Maynard supported people with dementia, learning disabilities and mental health problems. The staff that she managed included 16 scheme managers, the relief scheme managers and all the domestic staff.[32]It was also stated by Ms. Maynard that Birmingham Care Development Agency were running a course entitled “Working with People with labels of Challenging Behaviour”,(“BCDA”) which she would be attending at a date to be confirmed in the future. In the meantime if she took on any clients with challenging behaviour she would ensure that Mayberry Care Services had qualified support staff with experience in that field to develop the appropriate support. BCDA were also running a course entitled “Safeguarding Awareness” which she would also be attending.[33]It was also stated that Mayberry Care Services had over 90 policies and procedures and that Ms. Maynard had been liaising with Birmingham City Council and had introduced an easy to read leaflet for clients which outlined what abuse was, who the abuser might be and what they could do to protect themselves from it. The mission of Mayberry Care Services was to provide care to clients in their own homes.[34]Ms Walton in her evidence stated that Ms. Maynard had failed in her Notice of Appeal to the Tribunal to mention that her experience at the Laurels had been on a part time basis, namely two to three days per month for the past four years, which Ms Walton said was equivalent to approximately six months full time. It was also Ms Walton’s view that Ms Maynard had failed to recognise that in her role as Manager, in order to ensure that staff were working to best practice guidelines, Ms Maynard herself needed knowledge and experience of caring for people with challenging behaviour. In addition Ms Walton stated that at the Fit Person interview, Ms Maynard had stated on several occasions that she was not the direct line manager for any staff and had never managed a team of care staff in a care setting.[35]Ms. Maynard submitted a written witness statement in support of her appeal in which she conceded that she did need more training, including training in relation to supporting clients with challenging behaviour and that she was taking steps to address this. She also stated that she had registered with an agency to gain experience of working with adults with learning disabilities and with challenging behaviour and/or complex needs. In addition she was enrolling with the BCDA to complete their Leadership and Management Award in September.[36]It was also stated by Ms. Maynard in her witness statement that Mayberry Care Services wanted to support clients to find good quality accommodation that would meet their needs in the community. They would source the accommodation through different companies, working in partnership, so the client would have a tenancy agreement with a company and Mayberry Care Services might then provide support services to the client.[37]When Ms. Maynard gave oral evidence she said that since April, 2009 she had been doing voluntary work at a small home where the clients were adults with learning difficulties. She had done a couple of days in the week but her work was mainly at weekends. It was a small care home with three clients and she was volunteering as a Care Assistant.[38]In regard to courses, she had not pursued the BCDA Course in relation to working with people with labels of challenging behaviour. Ms. Maynard also said that she had not started the Leadership and Management Award at South Birmingham College. She had however completed a medication course with Boots, but had not yet received the certificate. She had attended a Safeguarding Vulnerable Adults Course in August, 2009 delivered by Pathways in Tysley and in July, 2009 she had completed a course on Epilepsy, but in neither case had she received certificates.[39]The Tribunal were also told that Ms. Maynard had completed her secondment and had gone back to her original post with Anchor Trust. Ms. Maynard then explained what her role with Anchor Trust involved, including the assessment of potential new tenants into the sheltered housing scheme.[40]In answer to questions from Ms. Brunner, Ms. Maynard said that the reason that she had included within the description of adults with learning disabilities, those with complex needs and challenging behaviour, was because clients came with a number of issues which could make them complex. Ms. Maynard said that she had had to deal with clients with challenging behaviour at Anchor Trust and gave an example of a client with a speech impairment who lashed out if he was unable to make himself understood.[41]Ms Maynard said that if when she was doing an assessment for Mayberry Care Services she might decide that she could not meet the needs of a particular client, it was all about doing the assessment and deciding what qualifications staff members had at any particular time. Ms Maynard said she had not made a list of those clients that Mayberry Care Services could and could not manage. Although she had held an open day in January, 2008 and made it clear to those that had attended that she could not meet the needs of clients with physical needs.[42]Ms. Maynard was asked about her qualifications and said that she had intended to do a management course, but in the event had not started one. In terms of the Registered Managers qualification, she had three modules to complete but had now decided to take the full award. She had spoken to her tutor who said it was better to be assessed working with the client group that she intended to work with in the future, as a result she had done no further work on the Registered Managers award. In terms of the Leadership and Management Course, Ms Maynard said she needed a staff team working with clients with learning disabilities and she was therefore not in a position to do the relevant course at the moment.[43]Ms. Maynard accepted that she needed more training in working with clients with learning disabilities and complex needs, but she considered this to be an ongoing process and not something that she needed to complete before being registered. In assessing prospective clients she would decide whether she could meet the needs of a particular client group. The Birmingham Care Agency did a course on challenging behaviour, but she had not yet signed up to it. Ms Maynard said she was unable to say which course in relation to adults with learning disabilities that she was going to take and she was looking at a number of courses.[44]In relation to her experience, she had been on secondment from the 4 th August, 2008 until the 1 st April, 2009. She was the line manager at Anchor in respect of the Relief Managers and two cleaners. She recruited the cleaners and the Relief Managers. She had dealt with a grievance in respect of the cleaners, but had not otherwise dealt with any staff disciplinary procedures. At Mayberry Care Services if she was going to employ someone she would bring in outside help to provide guidance on the recruitment process in order to be objective and independent. Ms Maynard stated that she had provided personal care as part of her role at the Laurels and also recently in relation to the volunteer work that she had undertaken at the care home. She had not worked at a higher level because she wanted to gain some hands on experience.[45]Ms. Maynard said that she did not consider that it would be part of the job of Mayberry Care Services to deal with medication, only what was on the client’s care plan. She would not for example, physically give tablets to a client, but if they were unable to get a tablet out of a bottle the worker would put it in the client’s hand. Ms. Maynard accepted that Mayberry’s written policies in relation to handling medicine needed updating and that had been an oversight.[46]In relation to staff recruitment and training, Ms Maynard said she would provide induction and ongoing training, including appraisals, although not all of the training would be delivered by her personally.[47]Mr. Tony Dann gave evidence on behalf of Ms. Maynard; he had signed a written statement dated 12 th August, 2009 and also giving oral evidence. He stated that he had been Ms. Maynard’s line manager for three years at Anchor Trust and during that time she had been Scheme Manager at St. Oswald’s Court in Small Heath and had also been seconded to the post of Area Scheme Manager, providing cover at multiple schemes when colleagues were absent.[48]Mr Dann said Anchor Trust Housing Schemes catered for a variety of tenants with different needs, including tenants with Dementia and learning disabilities. Ms. Maynard was conscientious, hard working and had a substantial knowledge of policy , procedures and methods of effectively working with vulnerable adults, many of whom had a high level of need for care and support.[49]Mr. Dann gave evidence that St. Oswald’s Court had about 35 flats, the residents were over 50 and were in need for support, safety and security. A care package would be brought in where necessary with the help of social services. Any personal care required by residents was provided by external agencies, the clients being assessed by those agencies. The Scheme Manager would provide feedback if a care package was not working. He did not recall Anchor Trust staff having specific training in providing care.[50]In terms of management it was the Scheme Manager who arranged the recruitment, training and discipline of the cleaners and in respect of the Relief Scheme Managers. As part of her secondment Ms Maynard had been providing cover for schemes across a wide area. Mr. Dann stated that Ms. Maynard did not have experience in her role at Anchor Trust of assessing personal care needs for people with learning disabilities. She would however have come into contact with clients with a variety of needs; including those having challenging behaviour with Dementia, there was a number of tenants with such needs in St. Oswald’s Court. There had been no formal training provided to staff on working with clients with challenging behaviour.[51]Mr. Warren Powell also gave evidence on behalf of Ms. Maynard, both in terms of a written witness statement and also by way of oral evidence. Mr. Powell stated that he was the Registered Manager of the Laurels, which was situated in Stechford, Birmingham. The aim of the Laurels was to provide a quality respite/short break service to young adults with learning disabilities from Birmingham.[52]Mr. Powell told the Tribunal that Ms. Maynard had done all aspects of the care which was provided at the Laurels, including medication, financial and support needs, Ms Maynard had been given a wider experience than the normal care staff at the home because of her future plans. Mr. Powell went on to say that the service users at the Laurels had a wide range of disabilities, including some with physical difficulties and others with challenging behaviour.[53]Mr. Powell said that the work that Ms. Maynard had carried out did not involve undertaking assessments of service users as that was done by social workers. However once the Laurels had received a referral then Ms. Maynard had gone through the care plans with Mr. Powell.[54]After completing the evidence we heard final submissions from Mrs. Brunner and Ms. Maynard. The Law[55]Section 12 (1) of the Care Standards Act 2000 (“The Act”) states as follows:- “A person seeking to be registered under this Part shall make an application to the registration authority.”[56]Section 13 of the Act states as follows:- “(1) Subsections (2) to (4) apply where an application under Section 12 has been made with respect to an establishment or agency in accordance with the provisions of this Part. (2) If the registration authority is satisfied that:-(a) the requirements of regulations under section 22; and(b) the requirements of any other enactment which appears to the registration authority to be relevant, are being and will continue to be complied with (so far as applicable) in relation to the establishment or agency, it shall grant the application; otherwise it shall refuse it. (3) The application may be granted either unconditionally or subject to such conditions as the registration authority thinks fit. (4) On granting the application, the registration authority shall issue a certificate of registration to the applicant. (5) The registration authority may at any time - (a) vary or remove any conditions for the time being in force in relation to a person’s registration; or (b) impose an additional condition.” Section 22(1) of the Act states:
“Regulations may impose in relation to establishments and agencies any requirements which the appropriate Minister thinks fit for the purpose of this Part and may in particular make any provision such as is mentioned in subsection (2), (7) or (8).”
[57]The relevant regulations are the Domiciliary Care Agencies Regulations 2002. In the context of running an agency, where Ms. Maynard would in effect be the registered provider and manager, the relevant regulation in respect of her fitness to be a manager is Regulation 9 which reads as follows:- “(1) A person shall not manage an agency unless he is fit to do so.(2) A person is not fit to manage an agency unless:- (a) he is of integrity and good character; (b) having regard to the size of the agency, the statement of purpose and the number of needs of the service users – (i) he has the qualifications, skills and experience necessary to manage the agency; and (ii) he is physically and mentally fit to do so; and (c) full and satisfactory information is available in relation to him in respect of each of the matters specified in Schedule 2.”[58]In relation to the general requirements and training required to be a registered person these are set out at regulation 10 and read as follows:- “(1) The registered proprietor and the registered manager shall, having regard to the size of the agency, the statement of purpose and the number and needs of the service users, carry on or (as the case may be) manage the agency with sufficient care, competence and skill. (2) If the registered proprietor is -(a) an individual, he shall undertake;(b) an organisation, it shall ensure that the responsible individual undertakes; or(c) a partnership, it shall ensure that one of the partners undertakes, from time to time such training as is appropriate to ensure that he has the experience and skills necessary for carrying on the agency. (3) The registered manager shall undertake from time to time such training as is appropriate to ensure that he has the experience and skills necessary for managing the agency.”[59]The Tribunal has the power under Section 21 of the Act to confirm the decision to refuse registration or direct that it shall not have effect. Conclusions[60]The application by Ms Maynard was to be registered as the proprietor of Mayberry Care Services and as there was no separate application for a manager, in effect to be the registered manager as well. The intention was that Mayberry Care Services would operate as a small domiciliary care agency.[61]In terms of how and to whom it was intended to deliver services , the picture presented by Ms Maynard was somewhat confusing. The original Statement of Purpose that was submitted for Mayberry Care Services described its Mission as aiming to provide:
“. .adults with learning difficulties with accommodation to meet their individual needs and to support them with day opportunities. To facilitate personal care, support, development and independence where required.”
Whilst in the same document under the heading, “Nature of services provided” it is stated that:
“ Mayberry Care provides rented accommodation, support and care services for adults with learning disabilities, aged between 18 and 64, some who have associated needs or challenging behaviours.”
The Client Information Pack refers to the provision of accommodation, support and care under one roof and gives details of a particular property, where it is envisaged clients will leave and where care will be delivered.[62]After the interview with Ms Walton, Ms Maynard amended her Statement of Purpose describing Mayberry Care Services as offering adults with learning difficulties a home, support, care and new opportunities to suit their specific needs.[63]There is a lack of clarity as to where services are to be provided, but in fairness to Ms Maynard part of the confusion may have arisen during the interview with Ms Walton, in relation to what is required by the regulations and the identification of a potential conflict of interests.[64]In terms of the client group with whom Mayberry Care Services will be working , again it is unclear with the original documentation referring to adults with learning difficulties, some of whom have associated and complex needs and/or challenging behaviours. When giving evidence at the hearing Ms Maynard stated that she had included complex needs and challenging behaviour as clients could come with a number of issues that could make them complex. When she did an assessment she would decide whether her service could meet the needs of that particular client or not.[65]In considering whether Ms Maynard meets the requirements of section 13 of the Act we have considered in particular regulations 9 and 10, given that Ms Maynard is applying in effect to be registered as a provider and manager. It is not disputed that Ms Maynard is of integrity and good character or that she is physically and mentally fit to manage the agency. The question in our view is whether she is fit to run and manage the agency, with particular reference to whether she has the necessary qualifications, skills and experience.[66]In terms of qualifications these are set out by Ms Maynard in her Curriculum Vitae and include NVQ Level 4 (Care), BTEC First Diploma (Care) and BTEC National Diploma (Social Care) and in addition Ms Maynard has also completed a number of short courses. Mr Martin in his evidence referred to the Domiciliary Care, National Minimum Standards, standard 20 deals with Qualifications, and 20.5 makes specific reference to Managers and reads as follows:
“20.5 Managers obtain a nationally recognised management qualification equivalent to NVQ level 4 in management within 5 years from the date of application of these standards, or following that period, within three years of employment.”
Ms Maynard has not completed any management training and we consider that to be a weakness, however we do not regard having a management qualification at the time of applying for registration to be essential, provided an applicant has relevant experience and demonstrates a willingness to become trained.[67]We have then considered Ms Maynard’s qualifications in relation to working with adults with learning disabilities. We accept on a balance of probabilities, Ms Maynard’s evidence that when she was taking her BTEC Diplomas she worked with a range of clients, including the elderly. We accept also that her NVQ Level 4 may have covered some aspects of clients’ behaviour. We also note that Standard 20.2 refers to newly appointed care or support workers delivering personal care, are required to register for the relevant NVQ in care award, either NVQ in Care level 2 or level 3 within the first six months of employment and complete the full award within three years. Ms Maynard has already obtained an NVQ Level 4 in care. It is not indicated in the National Minimum Standards that a manager should have a specialist qualification in working with a specific client group, such as adults with learning disabilities.[68]In looking at Ms Maynard’s experience we have gone through a similar process as we have undertaken in relation to her qualifications. In relation to management, on the evidence presented we consider Ms Maynard’s experience to be limited. Whilst at Anchor Trust we were told that Ms Maynard has managed two cleaners and a relief manager in circumstances where she was not working alongside the relief management. Some of the key aspects of management include recruitment, discipline, grievances, supervision and training. Ms Maynard demonstrated little experience in all of these areas, although we acknowledge that in relation to training it might be possible for Ms Maynard to bring in outside trainers. Ms Maynard’s lack of experience in this area is of particular concern, given that she has no management qualifications which might underpin her practice.[69]In spite of having worked for a number of years with Anchor Trust, as well as her work at the Laurels and her recent voluntary work, Ms Maynard has had little experience of working with clients with learning disabilities. Mr Dann in his evidence indicated that only 1 or 2 residents at St Oswald’s Court, about 5% would fall into this category. At the Laurels, Ms Maynard was effectively working as a care worker and was not involved in doing assessments. In her role as a Scheme Manager we accept that she has had a role in assessing the needs of the tenants, but not from the perspective of a care professional. Although we have referred specifically to regulations 9 and10 in the context of registration, regulation 14 refers to the preparation of service user plans, which require an assessment of the service users needs. We cannot see how Ms Maynard would be in a position to do this, given her lack of experience in care assessments. There needs to be an awareness of a service users care needs. In addition Ms Maynard’s would not be in a position to demonstrate to any members of staff how to identify a service users needs and put the necessary provision in place.[70]The Commission identified a number of areas of concern which they stated highlighted Ms Maynard’s lack of knowledge of statue, regulations and policies. The Notice of Proposal to Refuse Registration indicated that Ms Maynard had demonstrated a poor understanding of safeguarding vulnerable adults in terms of adult protection issues and of the process for protecting service users. Ms Maynard gave evidence that she had now taken a safeguarding vulnerable adults course, but she was unable to produce a certificate or documentation in respect of that course. However the answers that Ms Maynard gave when cross-examined on this subject did not in our view demonstrate an in depth understanding of safeguarding procedures, in particular the involvement and role of other agencies and the preservation of evidence.[71]In respect of the administration of medication, Ms Maynard was unclear when giving evidence about the role of a domiciliary care agency.

(b) requires a registered person to:

“ specify the circumstances in which a domiciliary care worker may administer or assist in the administration of the service user’s medication, or any other task relating to the service user’s health care, and the procedures to be adopted in such circumstances.”
National Minimum Standard 10.1 sets out the need to identify parameters and circumstances for assisting with medication. “10.1 The registered person ensures there is a clear, written policy and procedure which is adhered to by staff and which identifies parameters and circumstances for assisting with medication and health related tasks and identifies the limits to assistance and tasks which may not be undertaken without specialist training.” Ms Maynard in her evidence accepted that the medication policies provided for Mayberry Care Services needed amending and up dating, in particular to make them relevant to a supported living situation. It was unclear how Ms Maynard would determine when and in what circumstances Ms Maynard and any staff she employed would administer medication. At one point when giving evidence Ms Maynard said that the domiciliary care was more about prompting the taking of medication rather than giving, but later said she would apply cream, would place tablets in a service users hand but not in their mouth. Ms Maynard did not demonstrate an understanding of the need to clearly specify policy and procedures in respect of medication or an understanding how you then ensure that such policies and practices are delivered in practice.[72]We acknowledge that Ms Maynard does have some relevant qualifications and some relevant experience, as well as some transferable skills. However we consider, for the reasons stated, that there is a particular weakness in not having sufficient experience and training in working with adults with a variety of learning disabilities, including those who have complex needs and those who have challenging behaviour. This has particular implications on Ms Maynard ability to assess service user’s needs and identify particular issues that may arise.[73]This coupled with Ms Maynard limited management skills will in our view impact on her ability to impart information to her staff to ensure that they understand the issues and deliver the correct service. This lack of relevant experience and knowledge was particularly apparent in Ms Maynard’s evidence on implementing policies for example, in relation to safeguarding vulnerable adults and the administering of medication.[74]We do not consider that Ms Maynard currently has the necessary, qualifications, skills, competence and experience necessary to manage and run a domiciliary care agency. That means that under the provisions of regulations 9 and 10 she must be considered unfit to manage and run a domiciliary care agency , therefore we confirm the Commission’s decision to refuse registration.[75]However we would comment that Ms Maynard has clearly put in a considerable amount of work into her registration application. In her submissions to the Commission and in her evidence to this Tribunal, Ms Maynard acknowledged that there were gaps in her training and experience. If Ms Maynard wishes to pursue her goal of operating a domiciliary care agency then she will need to fill those gaps, by undertaking appropriate courses and training and obtaining relevant experience in working with adults with learning disabilities.[76]As far as the Commission is concerned, we would urge them to be as open as possible with applicants at an early stage of the registration process in identifying potential shortfalls in their application and making it clear that further information can be supplied and amendments made to documentation that an applicant may have submitted. ORDER The Appeal is DISMISSED and the decision of the Respondent to refuse registration is confirmed. Stewart Hunter (Nominated Chairman) Wendy Stafford Elena Fowler Date: 6 th November 2009.