Willow House Domiciliary Care Agency Ltd (formerly Willow House Ltd) 
and Mr L Wilson – Appellants
V
Care Quality Commission - Respondent
[2010]1709.EA and 1714.EA

Before

Miss Maureen Roberts, Tribunal Judge
Mr James Black, Specialist Member
Mr Graham Harper, Specialist Member

DECISION

Heard on 20, 21, 22, and 23 June 2011 at the Tribunals Service St George’s Road Cheltenham.

Representation:  The Appellants represented themselves and gave evidence. Until the hearing they were represented by Davis and Partners Solicitors Bristol.

The Respondent was represented by Ms K Brunner of Counsel instructed by Ms J Jones of Anthony Collins and Co Solicitors. Ms Kelly Legal Advisor from the Respondent was present.
The tribunal heard evidence from Ms H Taylor Registration Assessor for the Respondent, Ms J Burvill former Registration Assessor for the Respondent, Mr M Dunford Registration Assessor for the Respondent.

APPEAL

1.	The Appellants appeal against a decision made by the Respondent in November  2010 to refuse to register them as the registered provider and registered manager of a Domicilary Care Agency to be known as Willow House Domiciliary Care Agency Ltd.  
2.	The Appeal is made under section 21 of the Care Standards Act 2002.  The tribunal has the power under section 21 Care standards Act to confirm the decision to refuse registration, or direct that it should not take effect. The burden of proof is on the Appellants to demonstrate that they should be registered as a provider and as a manager. 

THE BACKGROUND

3.	In August 2008 Willow house Ltd applied for registration as a provider of a care home for four adults with learning disabilities at Willow House Ltd 52 Myrtle Close Robinswood Gloucester GL4 6YP. Mr Lee Wilson was proposed as the registered manager and Mr Alan Rooney was proposed as the responsible individual. Mr Rooney is the sole director of Willow House Ltd now Willow House Domiciliary Care Ltd. Fit person interviews and a site inspection were carried out by Helen Taylor the Assessor from CQC. Her concerns and a request for some further information was made in a letter dated 15 December 2008. 
4.	On 27 January 2008 the appellants withdrew this application. On 28 January 2009 Willow House Ltd applied for registration as a Domiciliary Care Agency (DCA). Mr Lee Wilson was proposed as registered manager and Mr Alan Rooney as responsible individual. The business plan proposed the provision of care and support packages to service users aged between 18 and 65 with a learning disability in their own home. The company was to be based at Kestrel Court Quedgeley Gloucester.
5.	There were delays in the processing of the application. The application was passed to the regulatory assessor on 22 June 2009. The assessor was Ms Burvill. She conducted fit person interviews and a site visit on 5 August 2009.
6.	The Respondent had concerns about the lack of experience and knowledge of both Mr Rooney and Mr Wilson. Mr Rooney had experience of being a teacher and head of Department at Gloucester College. Mr Wilson had been working in a care home and managing a small team. The Respondent took the view that their answers an interview demonstrated that they did not have sufficient grasp of the legislative framework and responsibilities attached to their proposed roles running a DCA.
7.	Mr Mark Dunford, regional registration manager for the Respondent at the time, decided to issue a notice to refuse registration to Willow House Ltd and Mr Lee Wilson as manager. This notice was issued on 16 October 2009. Willow house submitted written representations and these were considered by a different director within the Respondent. The Respondent's decision was to refuse both applications. It is against those decisions that the Appellants make this appeal.

THE LEGAL FRAMEWORK AND ISSUES LEADING TO THE HEARING

8.	The regulations which apply to this application are the Domiciliary Care Agencies Regulations 2002 (“DCA regulations”). Under section 13 of the Care Standards Act 2000 the Respondent shall refuse an application for registration if it is not satisfied that the requirements of the regulations under section 22 and any other relevant enactment are met.
9.	Under  DCA regulations the ‘registered provider’ would be Willow house Ltd and the ‘registered manager’ would be Mr Lee Wilson. The phrase ‘registered person’ would refer to Willow House Ltd and Mr Lee Wilson and the ‘responsible individual’ would be Mr Alan Rooney.
10.	The appeal was due to take place on the 6th September 2010. In the previous week the Respondent found out that the Appellant company had been dissolved and notified the Appellant's solicitor who was unaware of this fact. The Appellants requested an adjournment of the appeal to allow the company to be reinstated. The Respondent did not oppose the adjournment however as noted later in this decision the Respondent asks the tribunal to award costs to reflect the extra cost of having to prepare for the tribunal twice.

EVIDENCE 

11.	Ms Taylor was the Registration Assessor who dealt with the first application to open a small home for four service users with learning disability. She checked the paperwork that had been prepared for the application, conducted a site visit, and the fit person interviews.
12.	Following her inspections she wrote a letter to Mr Rooney at Willow house Ltd on 15 December 2008. She outlined the alterations that needed to be done regarding the premises and she listed the areas in which Mr Rooney and Mr Wilson's had fallen short in respect of their understanding of their respective responsibilities.
13.	For Mr Rooney, she said that  he did not understand his responsibilities under the Care Homes regulations, he had limited understanding of his role in monitoring and guiding best practice in the home, he was not able to demonstrate how the company would promote equality and diversity, he was unclear about local safeguarding protocols and had a limited understanding of the wider legislative framework guiding practice in a care home.
14.	In respect of Mr Wilson she said that although he was aware of the Care Standards Act he was unaware of the regulations and the national minimum standards specific to the service he intended to manage, he had limited understanding of responsibilities under the Care Homes Regulations, limited understanding in relation to employment law, no knowledge of the wider legislative framework guiding practice in a care home, unaware of guidance in respect of supporting people who may present with challenging behaviour. He had limited knowledge of how to promote equality and diversity in the service.
15.	In respect of the documentation produced by the Appellants Ms Taylor said that she had reviewed safeguarding, complaints, medications, equal opportunity and visitors policies and found that they were not fit for purpose. She said she provided detailed guidance about what they should contain. She also told the Appellants that she would need to see copies of the reviewed documents and to include the following: statement of purpose, service user guide, lone worker policy, care planning pack, admission procedure, dealing with physical/verbal aggression and service user's finances. She also noted that no staff training and induction programme had been given to her on her visit and requested that this programme be submitted to her.
16.	Ms Taylor told the tribunal in evidence that she viewed the application with an open mind and thought there was a prospect that the application would be granted, provided the policies and procedures were produced and up to standard and the alterations made to the home.
17.	On 27 January 2009 the Appellants withdrew their application for the care home and on the next day, 28th of January 2009 they attended the Respondent's office in Bristol and submitted an application to run a DCA.
18.	As noted above there was a considerable delay in processing this application. It was allocated to Ms Burvill in June 2009 and she conducted her inspection of the premises and the fit person interviews on 5 August 2009.
19.	Ms Burvill told the tribunal that the visit lasted from approximately 10:10 in the morning to two o'clock in the afternoon. The timings are confirmed by the handwritten note she had put in her interview records. Tribunal had a full copy of all the notes that she had taken in respect of the inspection and interviews. The Appellants said that Ms Burvill  had only been on the premises some two hours. On the evidence we find that Ms Burvill arrived just after 10 o'clock and stayed until two o'clock. At the end of the interview she gave the Appellants half an hour of feedback about their application.
20.	The next day she sent a short e-mail specifying the documents that she would need to see in order to assess their application. These included a revised business plan, revised statement of purpose with correct contact details of the Respondent, a lone working and recruitment policy and procedure which needed to include details of the relevant regulations, any strategic plans/overview of how the service will operate as the Appellants did not employ staff at that point, evidence that company house had been advised of the change business and an up-to-date CV from Mr Wilson.
21.	It was the Appellants evidence that they had provided all the documents requested. They said Mr Wilson had put together a staff hand book while Mr Rooney was being interviewed and had given it to Ms Burvill at the end of the inspection and interviews.
22.	The notices of proposal to refuse registration were served, on both Appellants, on 16 October 2009. The contents recited the regulations that were in breach by the applications. Mr Rooney, on behalf of Willow House, submitted written representations which were considered by a different regional director. The notices were upheld.
23.	In brief the notice sent to Mr Rooney as the responsible individual of the Willow House Ltd stated that he had not demonstrated that he had the experience to run or carry on a DCA. The respondent stated that Mr Rooney was unable to demonstrate that he understood or knew the legislation regarding the service. It noted that this shortcoming had been pointed out to him during the first application. There was no evidence that Mr Rooney had undertaken the necessary training to carry on an agency. Willow House Ltd had not ensured that the service user plan and assessment of needs covered the range of needs that might be required of a person wishing to use a DCA.  Although the organisation had documents regarding safeguarding Mr Rooney himself was not fully familiar with the local referral process. The Appellant had not recruited staff and there was not a program for training provision nor a policy and procedure for induction that met the regulations. The staff handbook did not comply with regulations.
24.	Willow House Ltd demonstrated a lack of understanding that at that time the application for registration is made it must be ready to provide the service. The organisation and registered individual must show that they are fit to provide the service as prescribed by the relevant regulations at the point of assessment. The Respondent stated they had failed to do so and registration was refused.
25.	 In respect of Mr Wilson he also had not understood that they needed to be ready when they submitted their application for the service to start. The Respondent considered that Mr Wilson did not demonstrate that he had had enough experience and skill to manage a DCA. He did not have sufficient level of management experience and the Respondent did not consider he had sufficient  transferrable skills from a care home background, where he worked, to run a DCA. The Respondent stated that Mr Wilson continued to display a lack of knowledge and understanding of the relevant legislation. A person applying to register to provide a care service must show that they are fit to do so as prescribed by the relevant regulations at the point of assessment and this Mr Wilson had not done. In these circumstances registration was refused.
26.	Mr Mark Dunford as the Regional Manager at the time of these applications gave evidence to the tribunal regarding the procedure followed by the respondent in determining such applications. He acknowledged that in 2009 because of the change from CSCI to CQC there had been a change in the way that applications were dealt with in that they were initially checked and scanned in a centralised office and then sent to Regional offices for assessment .This could account for the delays in processing and allocating the second application.
27.	He was the manager who made the decision to send a notice of proposal to refuse registration. He said he was concerned by the lack of experience and knowledge of the Appellants. He reiterated the view that when any new service is being inspected at the point of assessment it needs to be ‘good to go’ with members of staff, systems, procedures and policies all correctly in place. This was not the case for the Appellants.
28.	Mr Dunford had checked the status of the company shortly before the appeal hearing date in September 2010 and found that it had been dissolved. He also visited the registered office of the company, Kestrel House in Gloucester. He found that Willow House was no longer occupying that building and that no one on site had any recollection of Willow House Ltd using the building.
29.	On this point it was the Respondent's submission that the very fact that Mr Rooney had failed to ensure that accounts were filed with Companies House and had allowed Willow House Ltd to be dissolved was evidence of his lack of competency in running the company. There was evidence before the tribunal that the current accounts are now overdue.
30.	The witnesses for the Respondent emphasised the complexity of running a DCA. Compared to a small care home running an agency is considerably more complex with differing needs of service users, staff working alone and in service users’ homes. The standards are high in order to meet the complex needs of vulnerable people.
31.	It was the Respondent's evidence that the shortcomings listed to the Appellants at the end of their first application and repeated at the end of the second application for the DCA were still apparent at the tribunal hearing and indicated they had not learned from their experience.
32.	In the Respondents view there was a lack of strategic planning, a failure to give time to prepare documents properly, a failure to submit accounts to Companies House on time.
33.	Despite the amount of time that had elapsed since the application was made, and this was an issue about which the Appellants complained, the Appellants had not taken the time to prepare a new set of policies procedures and documents that complied with regulations. It was the Respondent's evidence that were the Appellants to start in business the next day they would immediately be breaches of regulations in respect of the documents and the fact that no staff  were employed. It was the Respondents view that the Appellants position remained almost the same at the time of the tribunal hearing as it had been in December 2008 and that there had been little change and improvement since that time.
34.	The tribunal heard evidence from both Appellants. Mr Rooney accepted that he did not have experience in providing personal care. Nor did he have experience in business. However he said that he had worked in education for a considerable length of time most recently at Gloucester college working with students who have learning difficulties. In that role he had been involved in recruiting staff and quality assurance. He was part of a team responsible for devising the provision of education to students and planning that provision.
35.	He said that he was not good in interviews. He had been responsible for preparing all the policy and procedures. He had got the house ready. He referred to a mentor who runs care homes and who heard given him a lot ‘of pointers’ about how to proceed. Mr Rooney was not certain if he had looked at the regulations or how much he had used the website of CSC I/CQC.
36.	As an example of one specific area which was examined by the inspectors, Mr Rooney was asked why the staff handbook had not been ready when the August 2009 interviews took place. He said that the Appellants had run out of time in preparing; they were aware that it was needed but they had not got round to it. They had not wanted to postpone the interview. He accepted that the staff handbook was still not in accordance with regulations for example the address for CQC was not included in it. 
37.	 With hindsight Mr Rooney felt that he should have purchased the whole package to cover the documentation and policies required.
38.	Mr Wilson gave evidence of his experience in the care sector. He has worked for a company providing residential care for learning disability adults in a small home for the past nine years. Since the beginning of the year he has been the acting manager for a small home. He has helped with moving service users and assisting staff, caring for a particularly difficult service user, in another property.
39.	Mr Wilson has had some experience of recruitment and training and the assessment of service users but this has been under the organisation of the company for which he works. He has no direct or indirect experience of DCA work.
40.	Mr Wilson was asked about his knowledge of the legal framework for DCA's. He said that he hoped that the appeal would be allowed and that the Appellants would be given some time to get their documents in order. He accepted that he understood that if the agency opened tomorrow it would be in breach of some of the regulations. He said that during the tribunal hearing it had become clear to him that the documents and policies did not comply with the regulations. He submitted that the revisions were minor ones. He acknowledged that the tribunal had no legal powers to allow the Appellants to have time to put their house in order.
41.	 In summary it was the Appellant's evidence that they had sufficient training and experience between them to run a DCA. They complained about the delay in processing their second application. They said that they expected that they would receive advice and guidance from the Respondent and that at the date of the appeal hearing if they were given just a little bit more time they would ensure that their documents policies and procedures were compliant with the regulations and national minimum standards. It is fair to conclude that the Appellants acknowledged that they were not ready to start a DCA at the date of the hearing were they to succeed in their appeal. 

FINDINGS

42.	The Respondents’ witnesses gave evidence first. The tribunal then heard from each of the Appellants. It was clear from their evidence that they were neither fit nor ready to start a DCA service at the date of the tribunal hearing. Mr Wilson admitted this in his evidence to the tribunal. 
43.	The tribunal accept that it is for the Appellant's to satisfy the tribunal that the regulations have been complied with at the date of the hearing. They have not been able to do so and it is evident that breaches of regulations would occur if the appeal succeeded.
44.	Further the tribunal accept that many of the issues listed in the letter of 15 December 2008 still remain outstanding. Despite the application in January 2009 and the consequent inspection and interviews in August 2009 and considerable length of time that has elapsed little further preparation has been carried out by the Appellants.
45.	The Tribunal noted that Mr Wilson has continued in work and clearly has continued to further his experience and training. However he still does not have direct experience of a DCA and whilst his skills are relevant he does not have sufficient experience at this stage.
46.	Mr Rooney as Willow House still shows a lack of understanding of the legal framework, a lack of strategic planning, a failure to finalise all documents in August 2009 in time. He has not taken any steps to gain experience of the running of a DCA.  Further he failed to note the due date for his company accounts which led to the company being dissolved.
	
CONCLUSION AND DECISION
47.	The tribunal concludes that the Appellants have not satisfied us that the requirements of the regulations would be met if they were granted their appeal.

APPEALS  DISMISSED.

Our decision is unanimous 

COSTS

48.	The Respondent had submitted a schedule of the additional costs incurred following the adjournment of the appeal hearing due to take place on 6 September 2010.
49.	The tribunal were directed to rule 10 of their own rules which provides that the tribunal may make an order in respect of the costs only’ if the tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting proceedings.’
50.	In this case it was argued that the adjournment was caused solely as a result of Willow House Company being dissolved following the failure of Mr Rooney to file accounts with Companies House.
51.	Mr Rooney did not dispute this failure or the fact that there had been additional costs as a result of his failure. The company was reinstated in February 2011 and after its reinstatement there were further directions when the new date for the present hearing was fixed.
52.	The tribunal was informed that Willow House Domiciliary Care Agency Ltd has no assets. We noted that Mr Rooney is the sole director of the company and we made some enquiries as to his means. He informed us that he had not been working for the past two years waiting for the registration to be completed. He had been overseeing the rebuilding of a holiday home in France for part of the time. It is evident that the he has assets both in the UK and in France.
53.	After hearing both sides on this matter the tribunal ORDERS that the  Appellant, Willow House Domiciliary Care Agency Ltd pays the costs of £7428 as outlined in the schedule prepared by the  Respondent. 

Maureen Roberts
James Black
Graham Harper     29 June 2011