Kang v Secretary of State [2010] UKFTT 498 (HESC)

FTT-HESC
Kang v Secretary of State
[2010] UKFTT 498 (HESC) · 2010-10-13
[1]On 10 th June 2003 the Appellant was registered as responsible individual for a care home, namely Richard House. The registered provider was a company, Regal Care (Birmingham) Ltd. The Appellant was a director of that company. On 9 th November 2005, the home was closed by order of Walsall Magistrates Court. On 3 rd January 2006 the Appellant was referred for POVA listing by CSCI (as it then was) and he was provisionally listed on 28 th June 2006. On 11 th January 2008 the Secretary of State included the Appellant on the POVA list with a cross-listing on the POCA list. Notification was not received by the Appellant until 8 th July 2009. By notice of appeal dated 23 rd September 2009, the Appellant appealed that listing. The Law[2]S84(1) Care Standards Act 2000 provides that a registration authority can refer a care worker to the Secretary of State for inclusion on the POVA list where:
“(a) on the basis of the evidence obtained by it in the exercise of its functions under Part 11 of this Act, the authority considers that the worker has been guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and (b) the worker has not been referred to the Secretary of State under section 82 or 83 in respect of the misconduct.”
[3]Section 80 of the CSA 2000 defines a “care worker” as:
“an individual who is or has been employed in a position which is such as to enable him to have regular contact in the course of his duties with adults to whom accommodation is provided at a care home.”
The Issues[4]The question of whether the Appellant was a care worker within the meaning of the 2000 Act was raised as a preliminary argument. This is a case of statutory interpretation for the Tribunal to consider. If the Tribunal concludes that the Appellant was not a care worker at the material time, within the meaning of the CSA 2000, it must follow that he is not eligible for inclusion on the POVA and POCA lists. Respondent’s Submission[5]A skeleton argument had been filed by the Respondent dealing with this issue. That stated, inter alia, “(I) Mr. Kang was the responsible individual for a care home known as Richard House; (ii) in that capacity Mr. Kang was employed in a position which enabled him to have regular contact in the course of his duties with adults to whom accommodation was provided at a care home; (iii) it follows that Mr. Kang was a care-worker within the meaning of section 80 of the Care Standards Act 2000 and that he was subject to the listing requirements of Part VII of the Act.”[6]In opening the case, counsel for the Respondent accepted that it was not the case that a responsible individual would fulfil the statutory test of a care-worker in all cases. The argument was not that a responsible individual is a care-worker per se but that the Appellant was, at the material time, a care-worker based on his role as a responsible individual and on the basis of what, on the facts, he did to fulfil that role.[7]Counsel stated that, as the responsible individual for Richard House, the Appellant was responsible for supervising the management of Richard House and in the course of his duties he regularly visited the home, on a weekly basis. He also carried out Regulation 26 requirements, that is that the registered provider visits the home at least once a month and in the course of those visits carries out interviews with service users in private. On the basis of those facts, the Respondent argued that the Appellant satisfied the definition of “care-worker”. Appellant’s Submission[8]Counsel for the Appellant submitted that there was a factual dispute in that the Regulation 26 visits had not been carried out by the Appellant. He had delegated that statutory requirement to someone else. In any event, simply conducting those visits does not make a responsible individual a care-worker, as evidenced by the fact that other directors of the registered provider company are able to carry them out without needing POVA or POCA clearance. Decision on the Preliminary Issue[9]The Tribunal concluded that, as the Respondent’s case was based on the role that the Appellant actually undertook in the home, evidence would have to be heard before a decision as to whether he was a care-worker could be made. Evidence[10]It is not intended to go through the evidence given on behalf of both parties in detail in this decision. For the most part the facts were not in dispute. It was alleged by the Respondent and accepted by the Appellant that the catalogue of events which occurred shortly before the closure of Richard House and set out in detail in evidence by the Respondent’s witnesses were unacceptable. None of the allegations with regard to events in Richard House were disputed by the Appellant. Indeed, the Appellant in cross-examination accepted that his efforts at supervising the management of the home had been a failure and that, consequently, service users were put at risk. He also accepted that he had failed, in this instance, to properly discharge his obligations as a responsible individual, having delegated those responsibilities to a firm of management consultants.[11]The Appellant told the Tribunal that his involvement as responsible individual for Richard House had been in terms of being consulted over major items of expenditure; “Anything costing thousands of pounds” as he put it. He had employed a management consultant company to liaise with the registered manager on his behalf. He would only normally attend at Richard House late on a Tuesday afternoon and evening with his co-director, Ravinder Singh Takhar, in order to meet with the registered manager to discuss any major issues. Normally the meeting would take place in the manager’s office in the late afternoon and early evening in order to cause minimum disruption to the manager’s daily duties. He told the Tribunal that he had very little contact with the service users because the manager’s office is at the front of the building, off the reception area.[12]The Appellant was referred to paragraph 20 of his statement dated 9 th March 2010 in which he refers to being the responsible individual for 3 care homes owned by the company of which he is a director. His statement indicates that for those 3 homes he carried out Regulation 26 visits in addition to having contact several times a week. The Appellant explained that this paragraph referred to homes in Birmingham, Worcester and Darlaston and not Richard House or Appleby Court in Liverpool because the Regulation 26 visits were carried out by management consultants in both of those homes. He confirmed that most of his contact with Richard House had been done by telephone and that he only ever visited to see the manager once a week.[13]In cross-examination, the Appellant explained that when Richard House had been purchased in May 2003 it had been a failing home requiring considerable input to try and turn it around. He, himself, did not feel confident in his abilities to do this and had, therefore, employed a firm of management consultants to deal with the day to day problems. Whilst he had had regular contact with service users in the 3 other homes for which he was the responsible individual, he had not done so in the case of Richard House because of the presence of management consultants who, he felt, had that responsibility. Indeed, his fellow directors had stated that he should not “tread on anyone’s toes” and leave it to the consultants. In the case of Richard House he was just acting as someone from head office. On his weekly visits he accepted that he could have spoken to other members of staff but did not. At the time of those visits most service users were being prepared for bed. The Appellant had limited time and wanted to use that time to sort any issues out. The Tribunal noted, however, that Amanda Hennessy, for the Respondent, had given evidence that one of the service users at Richard House had told her that she had discussed the lack of refurbishment and activities with the Appellant on one occasion. Ms Hennessy was not, however, able to assist the Tribunal with any other information as to the level of contact the Appellant had with service users in general.[14]Evidence was given by Mr. Takhar that he went with the Appellant on 95% of his visits to Richard House. He confirmed that contact with any service user was minimal and was limited to merely greeting them if they were in the area where he and the Appellant were. He, himself, never interviewed any of them in relation to any matters raised following inspections by CSCI because he considered that to be the responsibility of the management consultants. In cross-examination he accepted that , had the Appellant wished to carry out regulation 26 visits, he could have done so and, similarly, could have had contact with service users if he had had a desire to.[15]The Respondent’s witnesses were unable to identify what contact the Appellant had had with service users. He was the person, however, that was considered to have ultimate responsibility for the supervision of the management of Richard House. Decision of the Tribunal[16]As set out earlier in this decision, in order for the Appellant to be eligible for inclusion on the POVA and POCA lists, he must, at the material time, be a care-worker within the meaning of the Care Standards Act 2000.[17]The initial argument set out by the Respondent relied on the allegation that the Appellant carried out regulation 26 visits at Richard House and the duties carried out by him at Richard House in his role as responsible individual. Clearly, the allegation with regard to regulation 26 visits was not borne out by the evidence at the hearing and that fact was accepted by counsel for the Respondent in his closing address. However, counsel reminded the Tribunal that the definition of “care worker” in the 2000 Act refers to being “able” to have regular contact in the course of his duties with adults to whom accommodation is provided at a care home. Given the evidence that the Appellant attended Richard House on a weekly basis, and on the evidence of Mr. Thakhar would exchange greetings with service users if they were in the vicinity, it was suggested that that was sufficient for him to be classed as a care-worker within the statutory definition.[18]Counsel for the Appellant argued that it must be accepted that a responsible individual can be a care-worker but that the test must be not how a responsible individual might have contact with service users but rather the circumstances in which he does have contact or intends to have contact. For the Secretary of State to argue that a person is a care-worker because he has the capacity to contact service users is to say that responsible individuals per se are care-workers because all responsible individuals have that capacity.[19]Of course vulnerable adults must be protected and the Tribunal has directed it’s mind to that. However, it seems to the Tribunal that, whether a person is a care-worker must be decided with regard to what contact with vulnerable adults they actually did have or intended to have rather than what opportunity for contact they might have had, had they so wished. In this case, should the Appellant ever apply to be a responsible individual again, no doubt the registering authority will have regard to his accepted failure to effectively supervise the management of Richard House before deciding whether or not he is a fit person. The Tribunal considers that that is the appropriate method for the registering authority to avoid a recurrence of the troubles that ensued at Richard House.[20]In the view of the Tribunal the Respondent has not established that the Appellant had or intended to have regular contact with service users. The fact that he could have done so had he wished to does not bring the Appellant into the definition of care-worker on any reasonable construction of the term as defined. Were it to be so, then all responsible individuals would be classed as care-workers.[21]On balance, therefore, the Tribunal has concluded that the Appellant fails to fall into the statutory definition of “care-worker”. That being the case he does not fall to be eligible for listing on the POVA and POCA lists and, therefore, the questions of misconduct and suitability have not been considered.[22]The appeal is allowed and the tribunal directs that the Appellant’s name should be removed from the POVA and POCA lists forthwith.[23]The decision is unanimous Date 1 November 2010 Carolyn Singleton (Tribunal Judge) Ray Winn Tim Greenacre