Bamgbala (Sharpness Residential Home) v Commission for Social Care Inspection [2006] EWCST 741(EA) (14 February 2007) 

Decision of the Care Standards Tribunal

Mrs Folasade Bamgbala (Sharpness Residential Home)

v

Commission for Social Care Inspection

[2006] 0741.EA

Before:
Mrs Meleri Tudur (Chairman)
Mrs Bridget Graham
Mrs Margaret Williams

Decision

Sitting at the Tribunals Service, Rivershill House, St George’s Road Cheltenham between 22 January and 1 February 2007.

The Appellant was unrepresented and presented her own appeal.

The Respondents were represented by Mr Michael Curtis of Counsel, instructed by Mills and Reeve, solicitors, Birmingham.

The Tribunal heard oral evidence from:-
For the Respondents:
Mrs Kate Silvey,
Mr Timothy Cotterell,
Mr David Jones,
Ms Helen Godfrey
Mrs Belinda Newham
Mr Adam Parker
Ms Sara Causon
Mrs Dorinda Willis
Mr Afta Chiles
Mrs Mary Reynolds
Mr Dave McCahill

For the Appellant:
Mrs Folasade Bamgbala
Mrs Joyce Tremayne
Mrs Kendal
Ms Teresa Williams
Mr Simon Storrie
Mrs Ann Beyer
Dr Anifowoshe
Dr Ola Odunubi

The Tribunal also considered a substantial amount of written material presented by the parties.

1.	The Law

1.1	Section 14 of The Care Standards Act 2000 provides that:

“(1)	The registration authority may at any time cancel the registration of a person in respect of an establishment or agency –
(a)	………………………..;

(b)	………………………..;

(c)	On the ground that the establishment or agency is being or has at any time been carried on otherwise than in accordance with the relevant requirements;

(d)	On any ground specified by regulations.

(2)…..

(3)	In this section “relevant requirements” means:-

(a)	any requirements or conditions imposed by or under this Part; and

(b)	any requirements of any other enactment which appear to the registration authority to be relevant”

1.2	Section 16 of the Care Standards Act 2000 provides that:

“(1)	Regulations may make provision about the registration of persons under this Part in respect of establishments or agencies and in particular about –

(a)	the making of applications for registration;

(b)	the contents of certificates of registration.
(2)	…….

(3)	Persons registered under this Part must also pay to the registration authority at such time as may be prescribed an annual fee –

(a)	of such amount as may be determined under section 113A where the registration authority is the CHAI or the CSCI; and……

(b)	of such amount as may be prescribed where the registration authority is the Assembly.

(4)	A fee payable by virtue of this section may, without prejudice to any other method of recovery, be recovered summarily as a civil debt.”

1.3	Section 22 of the Care Standards Act 2000 provides that:

“(1)	Regulations may impose in relation to establishments and agencies any requirements which the appropriate Minister thinks fit for the purposes of this Part and may in particular make any provision such as is mentioned in subsection (2), (7) or (8).”

1.4	The Care Homes Regulations 2001 (“the Regulations”) came into force on the 1 April 2002 and extend to England only.  They apply to care homes that are not specifically excluded from the provisions of the Regulations.

2.	Preliminary Matters

2.1	Counsel for the Respondent made an application at the start of the hearing for clarification of the position in relation to Mrs Bamgbala’s witnesses: a number of letters or statements submitted by the Appellant to the Respondent’s solicitors had not been included in the hearing bundle because the Respondents objected to their production unless the witnesses were to be called to give evidence.  Excluded from the bundle were the documents produced by: Dr Ola Odunubi; Mrs D. A Browne; Mr Simon Storrie, Ms Cislin Ajikawo, Mrs A Beyer; Mrs Linda Seaton; Dr A.O.O. Anifowoshe.  Mrs Bamgbala confirmed that it was her intention to call all the witnesses to confirm the contents of the documents produced, although she had concerns regarding one of her witnesses, Mrs Browne, whom she believed to be on holiday.

2.2	Counsel for the Respondent made a further application in respect of evidence for the Respondents, which had also been omitted from the Tribunal bundle.  He sought leave to introduce statements from Mrs Helen Godfrey, and Mr David McCahill, which had been obtained shortly before the hearing and served upon Mrs Bamgbala.  There were also documents omitted from the bundle which he considered would be of assistance to the Tribunal in considering their decision, namely, a letter dated 4th November 2004 reporting on an inspection undertaken on the 5th October 2004; a letter dated 10th January 2006 reporting on an inspection undertaken on the 14th December 2005; Judgement dated 2nd May 2006 for outstanding fees due to the Commission from Mrs Bamgbala and a Notice of Proposal to Cancel registration, dated November 2006, regarding outstanding fees due to the Commission.

2.3	The Tribunal allowed the applications and directed that the additional documents should be added to the bundle.

2.4	Mrs Bamgbala requested that she be allowed to produce further witness statements as she had not understood that all the information for the Tribunal had to be produced prior to the start of the hearing.  The Tribunal granted leave for her to produce any additional material by 10am on the third day of the hearing, but that no further additional witnesses would be allowed to be introduced after that time.

2.5	Mrs Bamgbala further applied to the Tribunal for a witness summons to be issued to Mrs Linda Seaton.  A witness summons was issued and served on Mrs Seaton on the 23rd January 2007, requiring her attendance at the Tribunal hearing from the 31st January 2007 to the 2nd February 2007.  Mrs Seaton made written representations to the Nominated Chairman requesting that the summons be set aside.  After considering the application, the Chairman concluded that the summons should be varied, requesting her attendance at the hearing at 10am on Thursday 1st February 2007.  Mrs Seaton did not attend the hearing.

2.6	Counsel for the Respondent explained that one of their proposed witnesses in respect of whom a witness statement had been filed, Mrs A Doswell-Moore, was unwell and might be unable to attend the hearing.  During the course of the hearing, the position was confirmed in writing by Mrs Doswell-Moore’s GP, in a letter dated 25th January 2007.  Mr Curtis further indicated that the Commission did not intend to call Ms Sarah Norman, the decision maker who had confirmed the Notice of Proposal and issued the Notice of Cancellation, on the basis that her evidence was not challenged by Mrs Bamgbala.

2.7	On the final day of the hearing, the Tribunal, of its own volition, undertook a site visit to Sharpness Residential Home.

3.	Background

3.1	The Appellant and Dr Ola Odunubi were joint registered providers at Severn View Nursing and Residential Home from 2000.  Severn View changed its status from a nursing home to residential and was transferred into the sole name of the Appellant on 1st December 2002.  Dr Odunubi’s involvement in the venture ceased in 2002, when Mrs Bamgbala became the sole proprietor and manager.  The name was changed to Sharpness Residential Care Home (“the Home”) and it was registered to care for 24 persons falling within the category of Older People (OP).

3.2	The Home was subject to inspection by the National Care Standards Commission, and it was in that capacity that Mrs Kathryn Silvey first visited the Home on the 8th October 2002, to undertake a two day announced inspection.  The NCSC was subsumed into the Commission for Social Care Inspection (“the Commission”).  From its inception as the registering and inspecting authority, Mrs Kathryn Silvey became the lead inspector in connection with the Home.

3.3	The first certificate of registration for Mrs Bamgbala, issued on the 12th December 2002, identified the Home as being registered to care for 24 persons over the age of 65, with one temporary condition to allow the residence at the home of one learning disabled younger person, who was already resident there.

3.4	By letter dated 30th September 2005, Mrs Bamgbala was notified by Gloucestershire Social Services Department that following concerns raised by the Commission, they would not be making new placements at the Home until further notice.

3.5	During the period from 2002 to 2004, inspections were undertaken approximately twice a year, with one announced inspection and an unannounced inspection every year.  Following the announced inspection in January 2004 and the issue of five statutory requirement notices to address identified breaches, the frequency of inspections increased to five during 2004, ten during 2005 and six during 2006.

3.6	On the 2nd May 2006, the Home was served with a Notice of Proposal to Cancel the registration of the Appellant as the Registered Person, pursuant to section 17(4)(a) of the Care Standards Act 2000.  Mrs Bamgbala made written representations objecting to the Notice and having considered them and the evidence to support the Notice of Proposal, the Commission decided to cancel the registration and the Notice was confirmed by Mrs Sara Norman on the 22nd June 2006.  Mrs Bamgbala appealed to the CST against the decision.

3.7	The final residents left the Home on the 1st December 2006, prior to the hearing of the appeal.

4.	The Issues

4.1	The Notice of Proposal to cancel Mrs Bambgala’s registration relied on the grounds set out in Section 14(1)(c) of the Care Standards Act 2000, that the Home is being or has been carried on otherwise than in accordance with relevant requirements.

4.2	Numerous breaches of the Regulations were alleged and included Regulations 4, 7, 8, 12, 13, 15, 16, 23 and 37.  Following consideration of the evidence presented and Mrs Bamgbala’s written representations against the Notice, Mrs Sarah Norman, Regional Director of the West Midlands Region of the Commission upheld the findings of the inspectors in relation to the identified Regulations, except Regulation 12, and she confirmed the cancellation decision.

4.3	Mrs Bamgbala lodged an appeal against the cancellation, and made allegations, as she had done in her written representations to the Commission, that she had been the victim of racism and a conspiracy.

4.4	In opposing the appeal, the Commission reinstated their allegation that Mrs Bamgbala had breached Regulation 12, by failing to ensure the service users’ privacy and dignity, based on additional evidence, which had come to light during the preparation of the appeal.

5.0	The alleged breaches.

Regulation 8(1)(a)(b)(ii) and (iii)

5.1	Regulation 8 (1)(a)(b)(ii) and (iii) provides as follows:

“The registered provider shall appoint an individual to manage the care home where there is no registered manager in respect of the care home and the registered provider is not a fit person to manage a care home or is not and does not intend to be in full-time day to day charge of the care home.”

5.2	During the period between January 2004 and October 2006, Mrs Silvey made a total of 17 visits to the Home.  Throughout the period, Mrs Bamgbala was the registered provider for the purposes of Part II of the Care Standards Act 2000.

5.3	A major issue in the allegation of Mrs Bamgbala’s fitness as a manager was the fact that she could not produce documentary evidence that she had completed her NVQ Level 4 qualification. It was accepted by the inspectors that Mrs Bamgbala had enrolled on the course in 2002 at Stroud College.  She had, however, failed to produce a final certificate confirming that she had attained the qualification.  The issue was raised in inspection reports from 2002 until 2006.  By June 2006, Mrs Silvey had received confirmation from Stroud College that Mrs Bamgbala had not been awarded the qualification from the City and Guilds.  Mrs Silvey referred in evidence to a Statement of Purpose for the Home, which identified Mrs Bamgbala as having an NVQ Level 4 (2002).

5.4	The Tribunal heard evidence from Ms Belinda Newham, Programme Area Manager for Management and Professional Development at Stroud College, that she had written a letter dated 23rd November 2006, confirming that Mrs Bamgbala had been enrolled at the College and had received unit certificates for all but the final module in the Registered Managers Award course.  Ms Newham confirmed that the final file containing the F6 module had been received and assessed by the College but had not been put through the external verification process.

5.5	When Mrs Bamgbala made enquires about the position some two years later, the College made a search of the premises to try to find the file but was unsuccessful.  The tutor had retired and no trace had been found of the work.  The College had therefore apologised for the error and Mrs Bamgbala had reregistered to do the module again because the work had to be less than two years old when assessed.

5.6	Ms Newham and a colleague had visited the Home to assess the final module which required practical, work based evidence of monitoring.  Consideration of the documentary evidence presented to them by Mrs Bamgbala, led the assessors to the conclusion that the record keeping was inadequate and Ms Newham informed Mrs Bamgbala that one of the pieces of evidence required was an inspection report from the Commission with the statutory requirements as well as documentary evidence of her monitoring of systems within the Home.  Mrs Bamgbala’s response was that if she had been told at the outset that the inspection report was a requirement, she would not have bothered to reregister on the course.

5.7	Mrs Bamgbala confirmed that she had received certificates for each of the units that she had completed and remained adamant that she had completed the course.  She gave evidence that she had been told by Mr Newbury, her tutor, that the F6 unit work was satisfactory and she gained the impression that the external verification process was no more than a formality.  In her eyes, she had simply not received the certificate for the qualification.

5.8	The second allegation of breach of the regulation arose because of Mrs Silvey’s perception that Mrs Bamgbala was not and did not wish to be involved in the day to day management of the Home.

5.9	Mrs Silvey gave evidence that from about 2003, Mrs Bamgbala had indicated to her, her intention of selling the Home, suggesting that she did not wish to be involved in the day to day running of it.  This was denied by Mrs Bamgbala, who submitted that she had been forced into a situation where she had to look for another manager because Mrs Silvey was dissatisfied with her as the registered provider.

5.10	It was alleged by Mrs Silvey in her statement that Mrs Bamgbala was “..never there managing the home…” when she arrived to inspect.  In oral evidence, Mrs Silvey acknowledged that the statement was incorrect and confirmed that there had been some occasions between 2002 and 2006 when Mrs Bamgbala had not been present in the Home when the inspectors arrived.

5.11	The inspection reports confirm that from the 17 visits by Mrs Silvey between 2004 and 2006, Mrs Bamgbala had not been present on Mrs Silvey’s arrival on two occasions, outside of the period in early 2006, when she had notified the Commission that she was appointing Norwich Healthcare Limited to manage the Home.  On one of the two occasions, she had arrived within five minutes, having been at the house, which was her home.

5.12	Mrs Bamgbala gave evidence that she had been advised by the inspector prior to Mrs Silvey that she should relocate some of her office tools to her home, given the very small space available in the office.  She did not consider it unreasonable that she should be coming and going to the house during the day and chose to eat her meals there. In her view, the house was sufficiently close to the Home for her to be able to be called at very short notice if her presence was required.  She stated that the house was on the same compound as the Home, and whilst not physically attached to the Home, the access points were less than 50 yards apart.

5.13	Mrs Silvey did not consider this appropriate and expected her to be on duty within the Home, if her name appeared on the rota.

5.14	An issue had arisen about the fact that Mrs Bamgbala’s name did not appear on the rota.  Mrs Silvey considered this to be an indication that Mrs Bamgbala was not arranging appropriate management of the Home when she wasn’t available, on the basis that if her name did not appear on the rota, then she was not present and should have appointed another manager. A rota for the week commencing 28 February 2005 was produced in evidence, which identified Mrs Bamgbala as being “off”, except when she was working nights for one night a week.

5.15	Mrs Bamgbala gave evidence that she did not consider it necessary for her name to appear on the rota, because she was almost always present in the Home.  Mrs Silvey advised her that if she was the manager and on duty then her name should appear on the rota.  Mrs Bamgbala gave evidence that as from March 2005, when Mrs Silvey had drawn the matter to her attention, her name had been included on the rota.

5.16	Mrs Bamgbala gave evidence that she respected the elderly and that in her culture, they were cherished, life being regarded as a ladder, up which all climb. It had been her ambition to own a home.  Despite her evidence that to own and manage her own care home had been her lifelong dream and ambition, and her statement that she did not intend to appoint a manager to run the Home for her, Mrs Bamgbala presented evidence that she had tried to appoint appropriate managers to the post.

5.17	In early 2003, Mrs Bamgbala was put in contact, through a mutual friend, with Mrs Ann Beyer, who was at that time unable to work due to health problems.  Mrs Beyer gave evidence at the hearing that she had management experience in sheltered accommodation for learning disabled adults, which she had managed from 1998 to 2001.  She did not have experience of managing a care home but she had relevant experience within the care sector.  Mrs Beyer was invited by Mrs Bamgbala to visit the home to assess whether she thought it feasible that she should take on a management role when her health improved.  She offered advice to Mrs Bamgbala over a period of some months, but concluded in the summer of 2003 that her health would not allow her to take on a management role.

5.18	Following the failure to appoint Mrs Beyer, Mrs Bamgbala went to an agency to try to find a suitable manager.  They provided her with the details of Mr Paul Lawrence whom she appointed to the role of general manager in November 2004.

5.19	Mr Lawrence had no prior experience of the care industry but had significant experience as a manager in the car industry.  He appeared keen to move into the area of care and used his management skills to implement changes to the administration of records and documents within the Home.

5.20	An application for his registration as the registered manager was submitted in February 2005, but Mrs Bamgbala was informed that as Mr Lawrence did not have two years’ experience in a senior management post within a care home or an appropriate NVQ Level 4 qualification, then his application was bound to fail.  Mrs Bamgbala withdrew his application and she dismissed Mr Lawrence from his post in July 2005.

5.21	Mrs Bamgbala gave evidence that she had submitted three CVs to Mrs Silvey for her consideration so that she could advise her on the right candidate for the post of manager.  She did not receive any response from Mrs Silvey.

5.22	On the 30th May 2005, Mrs Bamgbala wrote to a Ms Wood in Cheltenham offering her the post of Care Manager, but she did not receive any response to the job offer.

5.23	At the time of Mr Lawrence’s appointment, Mrs Linda Seaton, a long standing employee at the Home, whom Mrs Bamgbala had “inherited” when she purchased the Home, was appointed as Deputy Manager.  Again, Mrs Seaton did not have the requisite experience or qualifications to be appointed as a manager, but she was appointed to the post of Deputy or Assistant Manager, with the intention that she should obtain the qualification of NVQ4 in Care Management, whilst building up her experience in a senior management post.

5.24	In December 2005, Mrs Bamgbala entered into an agreement with a management company, called Norwich Healthcare Ltd, to take over the management of the Home.  She had concluded that she must sell the Home because it was no longer financially viable, having had placements stopped by Gloucestershire County Council since September 2005.  She entered into an agreement with Mr Gosai director of Norwich Healthcare Ltd giving the company a management role, with the intention that they should purchase the Home as a going concern, completing as soon as possible.

5.25	Norwich Healthcare Ltd placed Mr Afta Chiles in the role of Manager of the Home from February 2006, with Mrs Linda Seaton as Deputy Manager.  When Mr Chiles arrived, he did so on the understanding that Mrs Bamgbala was banned from the premises and was not to be involved in any way in the day to day running of the Home.  In oral evidence at the hearing, he stated that when Mrs Bamgbala came into the Home “she would cause unrest.”  Mr Chiles confirmed that during the period when he stayed at the Home in March 2006, he had taken Mrs Seaton to open a new bank account in the name of Norwich Healthcare Ltd in order to deposit into it the payments received for the service users’ accommodation.

5.26	Between December 2005 and April 2006, Mrs Bamgbala was unwell, and had been advised by her cardiologist to keep away from the Home.  In April, however, she was advised by her solicitor that she should make her presence felt and she resumed her attendances at the Home, announcing on the 3 April 2006 that she was now back in control.  Despite her return, the boundaries, in terms of management responsibility, were unclear and there was some disagreement regarding the assumption of responsibility within the Home.

5.27	On the 25th April 2006, Mrs Seaton sent a letter to Mrs Bamgbala setting out grievances, which she wanted to discuss with Mrs Bamgbala at a meeting.  She threatened to report Mrs Bamgbala to the Commission for using a foreign language, referred to a total lack of communication between them, demanded that she respond to fire alarms and raised a personal grievance for non-payment of wages for her and another six staff members.  Finally, Mrs Seaton told Mrs Bamgbala not to spread “malicious gossip that you are the manager at Sharpness.  In this instance you need to accept that I am not answerable to you.”  Mrs Seaton sent a copy of the letter to Mrs Silvey, Sarah Garside and Norwich Healthcare Limited.

5.28	On the 27th April 2006, Mrs Seaton issued minutes of a staff meeting, recording the fact that she was pursuing a grievance procedure against Mrs Bamgbala for non-payment of wages and that Sarah Garside, described as the employment solicitor for Norwich Healthcare Ltd, was dealing with an application to the Employment Tribunal for all staff. The minutes further recorded that Mrs Seaton was the Acting Manager at the Home and that staff were to see her for all matters.  Mr Chiles confirmed that she was line managed by him.

5.29	Mrs Seaton, allegedly with the support of Norwich Healthcare Ltd’s solicitors, successfully pursued an application to the Employment Tribunal against Mrs Bamgbala for non-payment of wages. Mr Chiles gave oral evidence that he had been with Mrs Seaton to open a new bank account so that service users’ contributions could be banked in Norwich Healthcare Ltd’s name, without Mrs Bamgbala’s knowledge.  He also gave evidence that Norwich Healthcare Ltd would not pay staff wages unless the staff signed contracts of employment with them, which the staff did not wish to do until the sale was completed.  He later gave evidence that Norwich Healthcare Ltd would have paid the staff wages, if Mrs Bamgbala had paid them their fee of £20 000.  In a letter dated the 9th June 2006, addressed to Mrs Bamgbala, he informed her of another home, in the same situation, who had paid a fee and whose staff had not been paid.

5.30	Mr Chiles confirmed in oral evidence that he had been in full time attendance at the Home from 7th February 2006 until the 20th or 21st March 2006.  During that period, he lived in the Home and had thereafter, visited for about two days every fortnight.  His last visit to the Home had been on the 19th May 2006. Norwich Healthcare Ltd remained in nominal control of the management until early June 2006 but the actual day to day position was far from clear.

5.31	Mr Chiles left the employ of Norwich Healthcare Ltd on the 6th June 2006 and on the 9th June wrote a letter to Mrs Bamgbala providing her with a copy of his letter of resignation from the company and informing Mrs Bamgbala that he had not been paid his salary.  He advised Mrs Bamgbala to look carefully at her contract to identify means of repudiating the contract on the basis of breaches of conditions by Norwich Healthcare Ltd.

5.32	At the date of the hearing, the situation remained unresolved, although Mrs Bamgbala confirmed that she no longer intended to sell the Home to Norwich Healthcare Ltd.  The company continued to have a legal charge registered against the property at the Land Registry.

Regulation 12(4)(a)

5.33	Regulation 12(4)(a) provides that:
“The registered person shall make suitable arrangements to ensure that the care home is conducted (a) in a manner which respects the privacy and dignity of service users;”

5.34	The Notice of Proposal referred to an incident, which occurred during an unannounced inspection visit, on the 4th June 2005.  The inspection was undertaken by Mrs Silvey and Mr Tim Cotterell.  It was alleged that they went into the office and that Mrs Bamgbala had become irate with Mrs Silvey and had stood over her in a threatening manner, clicking her fingers and shouting at her, threatening to bring her God down on Mrs Silvey, saying “Have some of my culture”, in an intimidating voice before leaving the office.   Mr Cotterell gave evidence that he had told Mrs Bamgbala that her behaviour was racist and asked her to calm down.  Mrs Bamgbala gave evidence that she had clicked her fingers only once, having realised that she had left papers in the house, and had said “Oh my God” when she realised that Mrs Silvey would require those documents, and that she had then left to fetch them.

5.35	The allegation of a breach of Regulation 12 was made on the basis that Mrs Bamgbala’s shouting could have been heard in both the lounges where residents were sitting and could have been a cause of concern and distress to them.

5.36	A second allegation of breach of the same regulation arose as a result of a complaint by Mrs Mary Reynolds that Mrs Bamgbala had raised her voice to her in the office, shouting and threatening curses and causing her such distress that she had been unable to attend her next appointment and had to take to her bed.  The allegation had formed part of a complaint to the Commission by Mrs Reynolds, which had been formally considered at the time, but not upheld.

5.37	Mrs Reynolds also made other allegations dating back to about 2003, in relation to the service users, whom she had befriended.  She gave oral evidence at the hearing that in order to prepare her statement, she had relied on diaries, which she compiled at the time, to assist her in her recollection of events. One incident arose when she took Eileen to hospital and Eileen became distressed because she had holes in her pants. The Appellant’s case was that the carer who had dressed Eileen that morning had been reprimanded when she was told of the distress caused by the incident.  A second allegation related to the service user Mrs I, who had a disagreement with Mrs Bamgbala, and who told her that she would tell her son A about Mrs Bamgbala.  Mrs Reynolds’ evidence was that Mrs Bamgbala had told Mrs I that she was going to have sex with A that afternoon. Mrs Bamgbala left and Mrs I became distressed.  Mrs Reynolds consoled Mrs I saying that Mrs Bamgbala should not have said what she did.  Mrs Bamgbala then said that it was a joke and that she wasn’t going to joke with Mrs I again.  From this Mrs Reynolds understood that she was threatening to isolate Mrs I and to treat her differently to the other service users.

5.38	The decision maker who considered the Notice of Proposal did not uphold either of the allegations on the basis that there was insufficient evidence in relation to them.

5.39	In defending the appeal, the Commission reinstated the allegation and added further allegations that Mrs Bamgbala had abused a service user, Mrs K, by humiliating her in front of other residents, calling her stupid and treating her like a child, calling her a baby.  Mr Chiles gave oral evidence that Mrs Bamgbala came into the house and “made a bee line for Mrs K and upset her until she cried.”  He gave evidence that he had heard Ms Bamgbala on more than one occasion threaten to return Mrs K to her previous home at a psychiatric unit called Stoke Park.  He claimed to have heard Mrs Bamgbala threaten to return Mrs K there on numerous occasions, shouting at her in front of other service users and causing her distress.

5.40	On the 31st May 2006, Mr Chiles wrote a letter of complaint to the Commission making allegations of abuse against Mrs Bamgbala.  In oral evidence, he explained that he had not seen any incidents at the Home after the 11th April 2006 and had not been present when Mrs Bamgbala was alleged to have shouted at Mrs K.  He claimed that the delay in reporting the alleged abuse  had been because he had been requested by Mr Gosai, Managing Director of Norwich Healthcare Ltd to keep quiet about the matter whilst negotiations for the sale of the Home were ongoing.

5.41	Another allegation arose from an alleged conversation between Mrs Bamgbala and another service user, where Mrs Bamgbala insinuated that she was having an affair with the service user’s son.  Mrs Bamgbala denied the conversation in its entirety.  The conversation was reported by Mrs Reynolds, who expressed her opinion that the service user was distressed by Mrs Bamgbala’s comments and her subsequent perception of the service user being bullied by Mrs Bamgbala because Mrs Reynolds had made reference to the lewd suggestion as inappropriate.

5.42	Mrs Beyer gave oral evidence that during her period of contact with the Home, Mrs Linda Seaton had been childminding her granddaughter at the Home after school every day and that she had seen Mrs Seaton giving one of the male residents a bath with the grand-daughter present in the bathroom.  She had raised the issue with Mrs Seaton who had told her that her daughter could not look after the child because she was working and generally dismissing her complaint as unimportant.  Mrs Bamgbala stated that she too had raised the issue with Mrs Seaton, but that she had refused to stop childminding, telling Mrs Bamgbala that if she left, then the residents would leave as well.

5.43	A further allegation pursued was that Mrs Bamgbala had failed to provide a cordless phone in the Home so that users could receive telephone calls in their rooms. Mr Adam Parker gave evidence about an inspection he carried out on the 26th August 2005 with Ms Ann Doswell Moore.  One of the recommendations was that the Home should provide a cordless phone for the use of the service users. Mr Parker gave oral evidence that he had been shown a cordless phone but that it was not working on the day.

5.44	Mrs Bamgbala gave evidence that she had spent £1250 on a cordless phone system for use by the service users.

Regulation 13(2).

5.45	Regulation 13(2) provides: “The registered person shall make arrangements for the recording, handling, safekeeping, safe administration and disposal of medicines received into the care home.”

5.46	The issue of the safe handling, recording and administration of medicines at the Home was a major issue in the course of the inspections.  Between 2002 and 2005, issues arose relating to medication during the course of several of the inspections undertaken.

5.47	Statutory requirements were identified in relation to medication issues during the inspections in 2003 and 2004.  In January 2005, the unannounced inspection identified a number of issues relating to the use and administration of medication.  A statutory requirement was identified, using a very broad brush approach, that the registered person must address all the medication issues identified in the report.  The issues identified related to the recording, methods of administration, training of staff, the absence of a medication administration procedure and the medication reference book being out of date.  The report said that the Commission’s pharmacist inspector would visit to complete a thorough audit of the medication. The date set for compliance with the requirement was the 15th March 2005.

5.48	Mrs Silvey requested Mr David Jones, the Pharmacist Inspector, to attend the Home and his first visit was on the 8th April 2005.  Mr Jones wrote to Mrs Bamgbala on the 11th April 2005, stating that a number of significant shortfalls in meeting the standards and regulations for medication had been found.  He also referred to her failure to address the issues identified in Mrs Silvey’s report by the deadline.  A total of seven statutory requirements were identified in the letter, three of which were to be addressed within 10 days of receipt of the letter.  The letter itself ran to seven pages of A4 paper, excluding the requirements and recommendations and contained detailed information about Mr Jones’s concerns.  Mrs Bamgbala did not respond in writing to the letter and did not produce an Action Plan for remedying the issues raised.

5.49	At an unannounced inspection on the 11th May 2005, Mrs Silvey reported that “There has been an improvement in the handling and recording of medication in the home and many of the issues raised in the report following the last inspection have been addressed.”  She went on, however, “There is still progress to be made to fully comply with this standard and ensure the safety of service users with regard to medication.” Despite the improvement identified, a further five statutory requirements were made in the May report, all of which related to compliance with Regulation 13.

5.50	Mr David Jones undertook a further inspection on the 19th May 2005.  In his letter of report, dated 3rd June 2005, he confirmed that there had been an improvement in the handling and recording of medication in the home and that many of the issues raised had been addressed.  Again, he indicated that there was still progress to be made, not only to comply with the National Minimum Standard but also to ensure the safety of service users.  He reiterated in his letter the same six requirements as identified by Mrs Silvey in her May 2005 report.

5.51	On the 7th June 2005, Mr Paul Lawrence wrote to Mr Jones, confirming compliance with the statutory requirements and enclosing with his letter copies of the relevant policies and procedures.  Mr Jones gave evidence that when he received the letter, he noted that part of the policy was missing and contacted Mr Lawrence to request a full copy.  Mr Lawrence promised to send him a copy on his return from annual leave.  When it did not arrive, Mr Jones again contacted the home on the 11th August 2005.  Mrs Bamgbala told him that Mr Lawrence had left and that she would arrange to send him the relevant document.

5.52	On the 19th August, Mrs Bamgbala sent to Mr Jones a letter purporting to provide him with the documents he had requested.  Mr Jones responded on the 1st September explaining that the document enclosed was an NHS policy written in 1998, was not up to date and did not refer specifically to the Home.  His letter explained again what he required.

5.53	On the 13th September 2005, he received a letter enclosing a part of the policy sent by Mr Lawrence, a Croner policy and June 2003 guidelines from the Royal Pharmaceutical Society.

5.54	At the hearing, it was alleged by Mrs Bamgbala that the relevant documents making up the policy had been sent to Mr Jones, but that the document had been printed on both sides of the page and consequently, Mr Jones had not copied the documents in their entirety for inclusion in the Tribunal bundle.  Mr Jones gave very clear evidence that he had not previously seen the missing pages from the policy.  He confirmed that he had received a copy of the policy from Mr Lawrence at the May inspection, and that he had written comments on it to suggest improvements before returning it to Mrs Bamgbala under cover of the letter dated the 7th June 2005.  He was adamant that he had not subsequently seen a complete copy of the policy as amended.

5.55	On the 17th October 2005, Mr Jones attended again at the Home to carry out an unannounced inspection.  Despite the indications by Mr Lawrence in his letter in June that the requirements had been addressed, a number of the same issues were evident again on this inspection.  Although Mr Jones did not issue an immediate requirement notice, he did issue a letter of serious concern confirming issues for immediate attention discussed with Mrs Bamgbala during the inspection.  Following the visit, Mr Jones issued a further 12 requirements, five of which were previous unmet requirements with extended timescales and an additional seven, not previously identified.

5.56	Mrs Bamgabala responded by letter dated 2nd November 2005, confirming that she had addressed the issues raised by Mr Jones, and stating “Every requirement is now update (stet) and duly actioned.”

5.57	On the 14th December 2005, Mr Jones visited the Home on an unannounced follow-up visit.   Mr Jones again noted that there were improvements, although the issue of the policy and procedures documents had not been resolved and Mr Jones gained the impression that Mrs Bamgbala did not understand what the Commission wanted of her.  He agreed to send to her copies of the previous information.  Mr Jones left two immediate requirement notices and his letter of the 15th December identified a number of additional new issues.

5.58	Mrs Bamgbala responded by letter dated 17th December 2005 confirming that all the necessary action had been taken.

5.59	A letter reporting the outcome of the inspection was not sent to Mrs Bamgbala until the 1st June 2006.  The letter indicated that an inspection of all the radiators would be undertaken at the next inspection, but the letter post dated the inspection to which it referred, which took place on the 26th May 2006.

5.60	Mr Jones’s next visit to the Home was again at the request of Mrs Silvey and undertaken on 9 August 2006.  Once again, Mr Jones recorded an improvement in the management of medicines, but there were still requirements issued with respect to medication.  A complete and up to date medicine policy and procedure, specific to the Home, was still outstanding, as was the written policy for the use of homely remedies.

5.61	A recurring problem in relation to medication was the storage temperatures and the method of storage in the refrigerator.  On several visits, Mr Jones noted that eye drops were not kept refrigerated after opening and on two visits Daktakort cream was in service users’ rooms when it, too, required refrigeration.  Mr Jones had on more than one occasion identified the need to mark the dates of opening of medicines with a limited shelf life and he had identified concerns about the temperature in the medicine trolley. He found out of date medication in the trolley and in service users’ rooms.

5.62	Other concerns raised in the context of medication, were issues such as the care plan of a service user who was being administered both a laxative and an anti-diarrhoea medicine and another service user, who had two laxatives prescribed by the GP to be given regularly but neither of which were administered at the time of the inspection.

5.63	At about the time of the visit in August 2006, the Commission had introduced new guidance to inspectors about the quality assessments in reports and in his report dated the 22nd August 2006, Mr Jones assessed the quality of provision at the Home relating to medicine as being “adequate”. Mr Jones explained in oral evidence that he had to choose between four levels of attainments:  poor, adequate, good or excellent.  In his opinion, he did not consider the provision to be poor, and neither did it fall to be described as good.  He, therefore, used the category “adequate”, although in his own personal view, he did not consider the administration and management of medicine in the Home to be adequate.  He felt bound, however, by the criteria to be implemented by the Commission and used the categorisation as directed.

5.64	A report dated 22nd August 2006 identified that there were suitable arrangements in place for the management of medicines but went on to identify further improvements, which Mr Jones considered necessary to comply with the Regulation.  One new requirement was identified but four of the previous requirements were still unmet.

5.65	Mrs Bamgbala responded to the report with a very indignant letter, dated the 24th August 2006.  In it, she expressed her dissatisfaction with Mr Jones’s reiteration of the previous unmet requirements identified by Mrs Silvey and suggested that he had not found a copy of the British National Formulary (BNF) issue 51, which he had identified as being out of date at the inspection, because he was too busy looking for other breaches.

5.66	In oral evidence, Mr Jones explained that the previous unmet requirements were included automatically in his report, because of the method of work imposed by the Commission.  On every report, any previously unmet requirements are reprinted as ongoing.  He had not, therefore, carried out any additional inspection on his visit and had not pursued any other breaches.

5.67	On receiving Mrs Bamgbala’s letter, Mr Jones was very concerned, again gaining the impression that Mrs Bamgbala had not understood what was being asked of her.  His concern was such that he wrote another lengthy letter to her, but her reaction to it suggested to him that she did not appreciate the importance of the need for rigorous attention to detail regarding the use and administration of medicine.

5.68	Mrs Bambala gave evidence that because she had a nursing background she was well aware of the need for detail and structure in the recording, storing and administration of medicines.  She maintained in oral evidence that she had put in place the necessary recording systems, but that Mr Jones had not seen them on his inspections.  She referred to his indication within his report of the 9th August 2006 inspection that her copy of the BNF was out of date.  She had provided with her letter a copy of the most recent issue, but could not offer any explanation why, if it was in the office at the time of the inspection, it had not been seen by Mr Jones.

5.69	In oral evidence at the hearing, Mr Jones expressed his concerns about the administration of medicines in the Home and explained the potential risks to service users in the event that medicines were either administered, not administered or wrongly administered.  Examples of incidents which had caused him particular concern were: the occasion when the Home failed to change the medication prescribed for Mr Dennis Darwin on his discharge from hospital, despite the fact that the discharge slip had been sent home with him; an incident where a couple’s medication had been mixed up on the pre admission assessment.  Mr Jones explained that in the circumstances, the administration of the wrong medicine to each of them could have had serious health implications for them both. Another concern was that Mrs Fowler’s MAR chart had been marked as “course completed” but some members of staff were still administering medication to her on the basis that the information on the chart was incorrect.

5.70	At the hearing, Mr Jones produced a letter, which he alleged had been given to him by Mrs Bamgbala during the August inspection, as proof that a medicine error at the Home had been appropriately dealt with.  The letter was a disciplinary letter addressed to Ms Theresa Williams.  Mrs Bamgbala claimed not to have seen the letter previously, explaining that she was not even present at the Home at the time of the error, which occurred in March 2006.  Similarly, the recipient of the disciplinary letter denied any previous knowledge of its existence and claimed not to have received a copy.  Neither offered any alternative explanation as to how the letter, which was addressed to Ms Williams, had come into the possession of Mr Jones during the August inspection.

5.71	Mr Jones also gave evidence that he had not previously found any Home inspected to make so little progress when given advice and guidance by the pharmacist inspector about the way of managing medicine.  He acknowledged that progress had been made during the period that he visited the Home, but felt that by making such frequent inspections and multiple requirements, the Commission were effectively managing the home for Mrs Bamgbala.

5.72	Mrs Bamgbala disputed the evidence and insisted that the medication issue had been addressed and the standard met.  She gave evidence that the issue of failure to dispose of old medicine was a set up – the medicine having been brought in by a relative for disposal and the Deputy Manager, Mrs Seaton, having left it in the medicine trolley to implicate Mrs Bamgbala in the failure to manage the medicines and comply with the regulation.

5.73	Mrs Bamgbala produced a copy of the Medicines Procedure and Policy, which she claimed had been handed to Mr Jones at the inspection in August 2006. The document consisted of four double sided A4 pages.  The front copy of Mrs Bamgbala’s copy had, in Mr Jones’s writing, the words “All received 8 August 2006”.  Mr Jones gave evidence that he had only seen four single pages of A4 prior to the day of the hearing, and stated that they were not consecutive pages.  As a result, he did not understand the document.  He confirmed that he had recognised it as part of a policy document complied by Mr Lawrence in 2005, but which he had annotated with proposed amendments.  He suggested that the documents he had received from Mrs Bamgbala had been part of the original policy and another old version of an NHS policy document produced in 1998.  Mrs Bamgbala was adamant that she had sent the entire document to the Commission and that they had failed to photocopy both sides of the double sided document.

5.74	Mrs Bamgbala gave evidence that she had arranged for the refrigeration of eye drops following the matter first being identified as a requirement, but that Mr Jones had found an unopened bottle to which his inspection report referred in August 2006, but that an unopened bottle did not need refrigeration.

Regulation 15(1). (2)(b)

5.75	Regulation 15 provides as follows:
“(1)	Unless it is impracticable to carry out such consultation, the registered person shall after consultation with the service user or a representative of his prepare a written plan (“the service user’s plan”) as to how the service user’s needs in respect of his health and welfare are to be met.
(2)(b) The registered person shall keep the service user’s plan under review;”

5.76	Mrs Silvey reviewed a sample of service users’ care plans at every inspection and found them wanting.  In her view, the plans weren’t detailed enough and were not reviewed regularly.  At the inspection on the 11th May 2005 she found that care plans were not reviewed monthly and a service user assessed as high risk for pressure sores had no action plan recorded.  A service user on respite did not have a care plan and there was no action plan for a service user who wandered.  No risk assessment or protocol had been recorded for a service user who had had epileptic seizures.

5.77	Mrs Bamgbala submitted that the service users’ plans were detailed documents and she made reference in her oral evidence to a request by a social worker for a copy of one of the service users’ plans because it was a good example of a detailed plan.  The evidence was challenged by Helen Godfrey from Gloucestershire Social Services on the basis that she had asked for a copy of the plan, for practical reasons, not because of its quality.

5.78	Mrs Silvey was also concerned about the lack of reviews of service users’ plans.  On the 11th May 2005, she found that a service user’s manual handling plan had not been reviewed since 2003.  She also noted in 2006 that one service user’s plan, which had been inspected and found not to have been reviewed at the previous inspection, had, by the time of the next inspection, an entry indicating that it had been reviewed prior to the previous inspection. It was her evidence that the entry had not been present at the time of the previous inspection.

5.79	Mrs Silvey accepted in oral evidence that care plans could vary in style and content, but did not accept that those used at the Home contained sufficient information and were not rigorously maintained and reviewed.

5.80	Mrs Bamgbala’s evidence was that her plans were more than adequate and that Mrs Silvey had not scrutinised her records carefully enough and had missed some of the entries made.

Regulation 16 (2) (c)

5.81	Regulation 16(2) (c) states: “The registered person shall, having regard to the size of the care home and the number and needs of service users – provide in rooms occupied by service users, adequate furniture, bedding and other furnishings, including curtains and floor coverings and equipment suitable to the needs of service users and screens where necessary.”

5.82	Mrs Silvey relied upon her findings from an unannounced inspection on the 10th March 2003 for the breaches to Regulation 16.  There were numerous environmental issues raised and several outstanding from a previous inspection on the 8th October 2002.  Further inspections in August and September 2003 revealed concerns about the standard of furnishing at the Home and in October 2003, the CSCI received and investigated an anonymous complaint alleging that the Home was in a dilapidated state, was dirty and the furniture was in poor condition.  The complaint was upheld in relation to the condition of the Home and requirements made to clean, tidy and decorate the Home.

5.83	In January 2004, Mrs Silvey reported that major refurbishment was taking place at the Home but even so, she issued a statutory requirement notice on the 3rd March 2004 relating to the failure to provide adequate furniture bedding and other furnishings.  The notice contained a number of requirements including the provision of radiator covers; repainting areas such as corridors, bathrooms and toilets; refurbishing the ground floor toilet block; repairing and cleaning, amongst others. A further statutory requirement notice was issued to implement the provision of an easy chair in every bedroom.  On the 24 May 2004, time for compliance with the Notices was extended and it was further extended in June to the end of September 2004.

5.84	Improvements in the environment of the Home were recorded in the report dated January 2005 but by October 2005, the report identified further concerns arising from new floorcovering, which had been unevenly laid.  At the hearing, Mrs Silvey gave evidence that she had been told by one of the carers that Mrs Bamgbala had laid the floor herself.

5.85	Mrs Bamgbala maintained that she had been in dispute with Allied Carpets, who had laid the floorcovering, regarding the quality of workmanship and that they had not, at the time of the inspection, returned to relay the floor.  The invoices produced from Allied Carpets were dated 11th February 2004.

Regulation 23(d) and (p)

5.86	Regulation 23(d) and (p) provides that: “The registered person shall having regard to the number and needs of the service users ensure that –
(d)	all parts of the care home are kept clean and reasonably decorated;
(p)	Ventilation, heating and lighting suitable for service users is provided in all parts of the care home which are used by service users.”

5.87	Mrs Silvey gave evidence that on inspections conducted in 2002 and 2003, the Home had been in a “dilapidated” state and required significant work to put into good order.  In her view, the gains made in improving the environment between 2002 and 2005 were only as a result of the Commission’s frequent inspections and the imposition of statutory requirements on the Appellant.

5.88	Mrs Bamgbala gave evidence that she did not consider there to have been any breaches of the Regulations after 2003, when she had financed a significant amount of work to refurbish the property.  She disputed Mrs Silvey’s claim that her work was only as a result of the Commission’s requirements, maintaining that the work had formed part of her long term plan to undertake the work in stages, as and when her financial position allowed.

5.89	The issue of ventilation and heating arose because of an inspection undertaken on the 26th May 2006, when it was alleged that the service users were cold and had to use blankets to keep warm, whilst sitting in the lounge. Mr Tim Cotterell explained that his handwritten notes identified this as something that Mrs Bamgbala had told him, herself, at the start of the inspection, explaining that she struggled constantly to keep the temperature at 30°F.  Mr Cotterell did not have a thermometer with him to check the temperature in the Home on that day.

5.90	The other issue was in relation to the allegation that the downstairs bathroom was unheated and that the sash cords to the lounge windows were broken, so that the windows could not be opened safely.  Mrs Silvey had been informed by telephone by Mrs Seaton on the 8th June 2006 that the sash cord on the only remaining window that would open in the lounge had broken.  In oral evidence, Mrs Silvey stated that she had seen the broken sash cord herself and had not relied on oral information from Mrs Seaton.  Handwritten notes of a telephone conversation with Mrs Seaton on the 8th June 2006 indicated that she had told Mrs Silvey about the broken sash cord.

5.91	Mrs Bamgbala gave evidence that there was no problem with the heating and that the service users used crochet blankets over their knees as comforters and for dignity, when sitting in the lounge.  She did not dispute that the sash cords were broken on the windows, but expressed her distaste at the fact that Mrs Seaton should have informed the inspector rather than the registered provider of the problem.  In her view the issue should have been raised with her first, so that it could be addressed.

Regulation 17(2) and Schedule 4(9)(a)

5.92	Regulation 17(2) states: ”The registered person shall maintain in the care home the records specified in Schedule 4”.

5.93	Schedule 4 (9)(a) provides: “A record of all money or other valuables deposited by a service user for safekeeping or received on the service user’s behalf which – (a) shall state the date on which the money or valuables were deposited or received, the date on which any money or valuables were returned to a service user or used, at the request of the service user on his behalf and where applicable the purpose for which the money or valuables were used; and  (b) shall include the written acknowledgement of the return of the money or valuables.”

5.94	The issue of the treatment of service users’ money was of great concern to Mrs Silvey.  She gave evidence that in 2002, four service users had transferred into the Home from another care home that had closed.  When Mrs Silvey started her inspections, she was dissatisfied with the recording method used by Mrs Bamgbala in respect of service users’ money and offered advice on their future maintenance.  A random check of service users’ monies revealed that transactions were recorded as a running total, without identifying the details of the expenditure incurred.

5.95	At the inspection on the 10th March 2003, Mrs Bamgbala expressed her concern about the service users’ monies.  She was advised by Mrs Silvey to maintain records of all monies deposited by a service user for safekeeping and records of incomes.

5.96	On the 22nd August and the 10th and 25th September 2003, Mrs Silvey again undertook inspections and was concerned about the manner in which records of service users’ income were being kept.  In her view, the records were not sufficiently detailed to confirm income, expenditure and balances.

5.97	It was at this point that Mrs Bamgbala expressed to her, her concern that she had not received payment from the local authority for some of the service users placed.

5.98	The four service users had transferred from a home which was in the Thames and Chiltern Trust (TACT) and it became clear to Mrs Silvey at the time of her inspection, that money paid as contributions for the service users’ accommodation, payable by Gloucestershire County Council, had not been paid to the Home. The service users’ welfare benefits entitlement had not been paid either, despite the fact that it was, by then, approximately 8 months after they had arrived.

5.99	Mrs Silvey contacted both TACT and Gloucestershire County Council, who confirmed that Mrs Bamgbala had not invoiced the accommodation costs.

5.100	At the same time, Mrs Silvey identified a need for at least one of the service users to have an appointee, to receive her welfare benefits entitlement.  Mrs Reynolds, who had befriended the four, was approached by Mrs Bamgbala to become the appointee, but she declined on the basis that it would be inappropriate for her to do so.  Mrs Bamgbala therefore became the appointee and at a subsequent inspection, Mrs Silvey identified a problem with the absence of a clear record of individualised spending for each of the service users.  In her evidence, Mrs Silvey stated that on enquiry about her records, Mrs Bamgbala produced a black bag, which contained receipts for purchases made on behalf of the service users and offered them to Mrs Silvey as proof of the expenditure she had undertaken on their behalf.

5.101	At the announced inspection on the 22nd and 23rd January 2004, further concerns were identified regarding service users’ monies.  A statutory requirement notice was issued in respect of this and a further visit occurred on the 5th and 18th May 2004 to check the compliance with the enforcement notice.

5.102	Mrs Silvey found that Mrs Bamgbala failed to implement the post inspection recommendations relating to service users’ money.

5.103	Mrs Silvey calculated the length of time that one of the service users had been living at the Home, and deducted the amount represented by the invoices and receipts provided. She concluded that the Home owed the service user £400.  At the same time, the Home claimed that the service user owed the Home the sum of £69.23, a discrepancy of £469.23.

5.104	On the visit on the 18th May 2004, Mrs Bamgbala produced the sum of £480 which she said belonged to the service user and stated that she must have recorded the monies wrongly.

5.105	The incident caused Mrs Silvey considerable concern and she arranged a meeting with Ms Sara Causon, a Senior Auditor with Gloucestershire County Council.  She was requested by Mrs Silvey to conduct an audit of the management of the service users’ money by the Home, on behalf of the Commission and to prepare a report for their consideration.

5.106	Ms Causon undertook the audit within very specific parameters and completed the report on the 4th April 2005.  In oral evidence, Ms Causon gave evidence that she had received a box of receipts from Mrs Bamgbala which she had audited.  She was certain that she had used all the relevant receipts that Mrs Bamgbala had given her to identify relevant expenditure.

5.107	Ms Causon gave evidence that she had also worked through expenditure records in order to identify whether alleged payments made on behalf of service users could be verified by receipts.  A particular area of difficulty was in relation to hairdressing services:  services for both hairdressing and chiropody were added on to the service users’ invoices, with a surcharge of £2.50 for the use of utilities by the stylist or chiropodist.  Ms Causon questioned the validity of the surcharge on the basis that service users were already paying for the utilities in their accommodation charges.

5.108	Mrs Bamgbala gave evidence that she had not added any further sums to invoices once this matter had been brought to her attention by Ms Causon.

5.109	Mr Chiles wrote to the Commission on the 31st May 2006 alleging that during his period in the Home no hairdressing services had been arranged with an external hairdresser and that service users’ hair had been cut by one of the carers, Alicia.  In oral evidence, he confirmed that the only service users he had seen having their hair cut by Alicia were male.  The allegations he made referred to the period from February to March 2006 but the complaint was not made to the Commission until June 2006.  He again attributed the delay in reporting his concerns to the fact that he was employed by Norwich Healthcare Ltd, who were seeking to purchase the Home from Mrs Bamgbala.

5.110	Mrs Bamgbala gave evidence that she had not had any responsibility for service users’ money after Mrs Silvey had advised her to delegate responsibility for the money to Mrs Seaton.  She did not accept that the record keeping by her during the period from 2002 to 2005 was in any way defective and maintained in evidence that she knew her system was best.  She claimed to have queried with Ms Causon, on the return of the invoices used to conduct the audit, the fact that far fewer receipts were returned than she had provided. She had been told by Ms Causon that she had simply filed them in order so that they took up less space.

5.111	In April 2005, Mrs Bamgbala was informed by Mrs Seaton that the sum of £900 was missing from a service user’s monies.  Initially, Mrs Bamgbala was told that the money had been found, but the Commission were not informed of the incident.  It later emerged that Mrs Seaton had been withholding £150 per month from the service users’ contributions to reimburse the money.  When, after the inspection in August 2005, Mrs Bamgbala discovered that the money had not been found, she reported the matter to the local police.

5.112	A formal police investigation started and Mr Lawrence and Mrs Seaton were both interviewed by the Police in relation to the matter.  Mrs Bamgbala was arrested on the 12thJanaury 2006 for the alleged theft and she was interviewed and subsequently received a letter from the Police dated 28th February 2006, informing her that the Crown Prosecution Service had decided that there was insufficient evidence to provide a realistic prospect of her conviction for theft and that no further action was to be taken.

5.113	The inspection on the 14 December 2005 identified ongoing concerns about service users’ monies.  Once again, Mrs Silvey identified that records of service users’ monies were incomplete and that a service user had identified that he had not received any personal allowance and had no money.

5.114	At the hearing, Mrs Bamgbala was adamant that the alleged breaches in respect of service users’ monies did not reflect the fact that she had for many months provided free accommodation and food for them, without receiving any payment from the County Council.  She considered her own method of recording the expenditure as a far superior way of maintaining the record than that proposed by Mrs Silvey.

5.115	Mrs Bamgbala’s evidence was that it was Mrs Silvey’s recommendation that Mrs Seaton should take over responsibility for managing service users’ money.  The inspection undertaken in March 2006, when Mrs Seaton was Acting Manager, recorded that the service users’ money was correctly managed.

5.116	When she returned to the Home in April 2006, Mrs Bamgbala refused to take any further responsibility for service users’ money.

5.117	During an unannounced inspection on the 29th June 2006, Mrs Silvey found an envelope with £107 in it with the name “Matron” written upon it.  Mrs Bamgbala had no idea to whom the money belonged nor why it was located in the safe.  It later transpired that the money belonged to a service user who had died, who had no family or relatives and was unclaimed benefits payable to the estate.  At that inspection, Mrs Bamgbala told Mrs Silvey that she had no intention of keeping any more records relating to money, in view of her recent experience at the hands of the Police.

Regulation 37(1)(e)(2)

5.118	Regulation 37(1)(e) states: “The registered person shall give notice to the Commission without delay of the occurrence of – (e)	any event in the care home which adversely affects the well-being or safety of any service user;”

5.119	Regulation 37(2) provides: “Any notification made in accordance with this regulation which is given orally shall be confirmed in writing.”

5.120	The allegation was that the Home had failed to notify the Commission about a fall which occurred on the 26 May 2006, where a service user had tripped and fallen, breaking a glass panel in a cabinet in the lounge as she fell.  A second alleged breach related to the failure to notify of the missing sum of £900.  Mrs Bamgbala denied the second breach on the basis that the missing amount had been reported to the Commission in August 2006.

5.121	Mrs Bamgbala explained that she had not been present at the home at the time of the fall but that she had completed the necessary accident report forms as soon as she became aware of it.  Mr Chiles gave evidence that the forms had been completed after the date of the accident and backdated.

5.122	Mrs Bamgbala submitted that she did not recognise the need for the missing money to be reported, as it had subsequently been found.  She did not seek to explain why it should not have been reported to the Commission when it was first found to be missing.

Regulation 23(4)(b)(c)(e)

5.123	Regulation 23(4)(b) provides “Subject to paragraph 4A the registered person shall after consultation with the fire and rescue authority (b) provide adequate means of escape; (c) make adequate arrangements for detecting containing and extinguishing fires; for giving warnings of fires; for the evacuation in the event of fire of all persons in the care home and safe placement of service users; for the maintenance of all fire equipment and for reviewing fire precautions and testing fire equipment at suitable intervals; (e) to ensure by means of fire drills and practices at suitable intervals that the persons working at the care home and as far as practicable service users are aware of the procedure to be followed in case of fire including the procedure for saving life.”

5.124	Compliance with the Fire Regulations was an ongoing issue in the Home for several years.  The issue was first identified at an unannounced inspection on the 10th March 2003.  Mrs Silvey gave evidence that she had been told by Mrs Bamgbala that a Fire Safety Report had been issued in February 2003 and that there were no outstanding requirements.

5.125	Mrs Silvey made enquires with the Fire Safety department and found that the last inspection was in July 2002 and that requirements had been issued.

5.126	Although the requirements were not available in their original form, Mr David McCahill, the Fire Safety Officer, gave evidence that the requirements arising from the inspection on the 22nd July 2002 were that: the fire alarm system was to be tested and recorded weekly; emergency lighting to be tested and recorded monthly; staff to receive fire safety training on a six monthly basis; combustible storage to be removed form escape routes and the employer’s responsibilities to carry out a fire safety risk assessment.

5.127	Fire safety issues were raised in the inspection reports for August/September 2003, January 2004 and October 2004.

5.128	Mr McCahill carried out a further inspection on the 20th June 2005.  In oral evidence he confirmed that he was pleased with the way things were improving, but not with the fire procedures generally.  He identified the contraventions of the Workplace Fire Precautions Legislation in a letter of non-compliance dated 29th June 2005 addressed to Mr Paul Lawrence, General Manager of the Home.  The letter identified five areas of non-compliance and required a significant amount of work to be done to rectify the breaches of the regulations.

5.129	Mr McCahill sent Mrs Bamgbala a letter dated the 19 September 2005 confirming that although most of the remedial works referred to in the letter of the 29 June had been completed, intumescent strips and smoke seals had not been fitted to the fire resisting doors.

5.130	When Mr McCahill inspected again on the 15th November 2005, he expressed concern that the basement was being used as a work area, for laundry and ironing work and did not have a second escape route in the event of fire.  This contravened a previous agreement with the Fire Safety Officer that the basement area should not be used for working, only for storage purposes.  Mrs Bamgbala insisted that the basement wasn’t used as a working area, however, the letter from Albert Infante confirming his removal of the rotary iron from there, was dated 9 August 2006 and the washing machines and dryers remained there throughout.  The Laundry person’s contract of employment identified duties which were to be undertaken daily in the laundry.

5.131	The other fire issues raised on that inspection were that the kitchen door and passageway door were both wedged open; two settees in the lobby area were not fire retardant; the fire bell control panel had not been serviced since June 2003 and the fire log book was completed monthly and not weekly as recommended by the fire and rescue services.

5.132	Mr McCahill carried out another inspection on the 9th August 2005.  A further non-compliance letter was sent dated the 15th August 2005 to Mrs Bamgbala identifying a further four areas of non-compliance.

5.133	When he undertook a visit on the 24th October 2006, all previous deficiencies had been rectified with the exception of the fitting of intumescent strips and smoke seals on fire resistant doors.  Mr McCahill gave evidence that strips and seals had been fitted, but had been fitted incorrectly and would have caused the doors to open in a fire rather than seal them shut.  He said that he might have told Mrs Bamgbala during the October visit that everything was satisfactory.

5.134	Ms Rati Bamgbala, Mrs Bambgbala’s daughter gave evidence in a written statement that she had been present on the final inspection in October 2006 and had heard Mr McCahill say that everything in the Home was now fine.

Regulation 7(1)(2)(a)(i) and 3b(a) and 10(1)

5.135	Regulation 7(1)(2)(a)(i) provide as follows:

“(1)	A person shall not carry on a care home unless he is fit to do so.

(2)	A person is not fit to carry on a care home unless the person

(a)	is an individual who carries on the care home –
(i)	otherwise than in partnership with others and he satisfied the requirements set out in paragraph (3).”

5.136	Regulation 7(3) provides:

(3)	The requirements are that -
(a)	he is of integrity and good character; and
(b)	he is physically and mentally fit to carry on the care home; and
(c)	full and satisfactory information is available in relation to him in respect of – (i) the matters specified in paragraphs 1 to 5 and 7 of schedule 2;”
5.137	Regulation 10 (1) states: “The registered provider and the registered manager shall, having regard to the size of the care home the statement of purpose and the number and needs of the service users carry on or manage the care home ( as the case may be) with sufficient care, competence and skill.”
5.138	It was submitted on behalf of the Commission that the many breaches identified in the Notice of Proposal were sufficient to identify Mrs Bamgbala as being a person who is not fit to carry on or manage a care home.  Further, they relied on Mrs Bamgbala’s failure to respond to identified breaches with Action Plans and her failure to remedy breaches promptly as proof of her not being fit to carry on the Home.
5.139	Mrs Bamgbala insisted that she had not been responsible for the alleged breaches and that many of the allegations could not be sustained.  She claimed to have documents to show that the necessary records had been kept but that she had not understood the process of the appeal, assuming that an independent inspector would attend the Home and undertake a new inspection of the relevant paperwork.  Until the final day of the hearing, it was her case that there were no breaches of the Regulations at the Home.
5.140	On the last day of the hearing, Mrs Bamgbala acknowledged that there had been breaches of the Regulation relating to the environment at the Home prior to 2003, but maintained her position that following her refurbishment of the property, there had been no further breaches.
5.141	The Commission further relied on incidents which had occurred after the confirmation of the cancellation notice as evidence of Mrs Bamgbala’s inappropriateness as a provider.  Reference was made in the response to the appeal to her response to the Notice of Proposal and to the manner in which the Home had been closed and the residents relocated at the end of November 2006.
5.142	The tribunal heard evidence from Mrs Silvey that the residents had received one week’s notice from Mrs Bamgbala at the end of November 2006 requiring them to move from the Home by the 1st December 2006.  Mrs Kendal confirmed that her brother had been told a week prior to the 1st December that their Mother had to be moved, and although her mother had been unwell and in her view unfit to be moved, she had to move to a new home.
5.143	Mrs Bamgbala gave evidence that Mrs K was removed from the Home by Gloucestershire Social Services on the 23rd November 2006 without any warning at all.  Mrs Tremayne explained that Mrs K had been removed from the Home by the back door, on the day of another resident’s funeral, when Mrs Bamgbala wasn’t present at the Home.
5.144	Ms Helen Godfrey of Gloucestershire Social Services gave evidence that Mrs Bamgbala had told the residents’ relatives that the Social Services Department were going to remove all the service users from the Home and that she would have to give notice to her staff.  She stated that at that stage, no decision had been made to move any service users and that Social Services only had a duty of care in respect of two of the remaining service users in any case. She confirmed that they had moved one service user on the 1st December 2006 and that all the other service users had also moved out on that day.  She also confirmed that the residents’ families had been kept informed of the situation and the consequences of cancellation had been explained to them.  They had been told that the consequences of an unplanned move was much more distressing than a planned move and the Social Services department took the initiative with the two residents for whom they had the duty of care because they didn’t have any relatives.
5.145	As far as Ms Godfrey was aware, no-one from Social Services had spoken directly to Mrs Bamgbala about the situation but relied on the Commission for their information.  She also confirmed that the decision not to make any further placements at the Home after September 2005 had been made following an Adult Protection Strategy meeting where the Commission had expressed their intention to start the cancellation process and mentioned concerns about financial matters. She stated that it was the decision by the Commission to draw up their Notice of Proposal that stopped the placements.
Other alleged regulatory breaches
5.146	When opening the case for the Commission, Mr Michael Curtis referred to further alleged breaches not detailed in the Notice of Proposal or relied upon in the Notice of Cancellation of Registration.
Regulations 17, 18 and 19
5.147	It was alleged that between 2004 and 2006, Mrs Bamgbala had failed to follow proper recruitment practices and to ensure that staff received adequate training and that in breach of Regulation 17 the records were inadequate.  The allegation related to Criminal Records Bureau (CRB) checks and PoVAFirst checks, which had not been obtained in respect of new employees and the absence of suitable references for new staff.
5.148	In reply to the allegations, Mrs Bamgbala maintained that she had submitted applications for CRB checks, but that they had taken months to be completed.  She also relied on a letter from the agency providing staff from the Philippines, confirming that all staff were checked prior to their arrival in the UK.  Mrs Bamgbala submitted that she could not make CRB applications in respect of staff who arrived from the Philippines until they had a permanent address in the UK.
5.149	Mrs Silvey gave evidence that Mrs Bamgbala had further failed to adequately supervise staff in respect of whom checks had not been obtained, allowing them to work unsupervised with service users.  Mrs Bamgbala relied on the experience of the staff as nurses in the Philippines in support of the lack of need for supervision, although she also sought to maintain that they were appropriately supervised at all times.
Regulation 14.
5.150	In breach of Regulation 14, it was alleged that the Appellant had failed to carry out adequate pre-admission assessments of all service users.
5.151	The evidence in support of the allegation referred to an incident when the pre-assessment of Mr and Mrs S led to their medications being confused and the alleged admission by Mrs Bamgbala to Mrs Silvey that she would rely on assessments by social workers or other homes made over the phone.  Mrs Silvey did not consider telephone assessments to be appropriate.
5.152	Mrs Beyer gave evidence about the emergency admissions of Mr D and Mr M, who had been placed at the request of their social workers.
Regulation 22
5.153	It was alleged that the Appellant failed to keep proper complaints records.  Although the issue of complaints records had been raised in reports in October 2004 and January 2005 and a reference was made following an unannounced inspection on the 11 May 2005 that the complaints procedure was incomplete, the inspection report for the 22nd March 2006 identified “a good complaints procedure.”
6.0	The Appellant’s case
6.1	When the notice of proposal was first served upon her on the 2nd May 2006, Mrs Bamgbala made written representations to the Commission.  She denied the alleged breaches, stating that the inspector referred to past breaches, which were “done and dusted problems”.  She described her “fear and panic attack” when she faced Mrs Silvey, because Mrs Silvey was never happy to see her and offered no help towards the documentation.  She made allegations of racism against both Mrs Seaton and Mrs Reynolds.  She described the situation with the current inspectors, stating “..inspection seems to be a battlefield of drummed up never ending complaints.”
6.2	Mrs Bamgbala set out in detail her responses to the breaches identified in the Notice of Proposal but did not indicate whether any of the breaches were admitted.  Her summary stated that she was a victim of her colour, expressing her view that she was a victim of a vendetta or racism.  She also expressed her belief that it was a joint decision by the Social Workers, inspectors, GPs, District Nurses and the villagers to get her out of Sharpness.
6.3	Her representations mentioned her request to change the inspectors in 2005, which, to her dismay, had been refused by the Commission.  Mr Adam Parker, an inspector for the Commission, gave evidence at the hearing that he had considered Mrs Bamgbala’s application to change inspectors, that he had discussed it with the inspectors in question and concluded that there was no need to send other inspectors into the Home.
6.4	Mr Curtis informed the Tribunal that the Commission agreed to approximately half of the applications they receive for a change of inspectors.
6.5	In oral evidence at the hearing, Mrs Bamgbala denied that she regarded standards as irrelevant once they had been achieved and until the last day maintained that there had been no breaches in the Home.  She placed the blame for many of the breaches with Mrs Linda Seaton.
6.6	Mrs Bamgbala called Mrs Ann Beyer, who described her impressions of the Home, when she visited there in 2003.  Whilst waiting to see Mrs Bamgbala, she had overheard members of staff talking amongst themselves and gained the impression that there was a clear split between the local white staff who had worked there prior to Mrs Bamgbala taking over the Home and the black and Philippine staff who had come in with Mrs Bamgbala.
6.7	Mrs Beyer described an incident one morning when she was in the office and Linda Seaton was present answering telephone calls.  She heard Mrs Seaton tell callers that Mrs Bamgbala wasn’t present in the Home.  Mrs Beyer challenged her, saying that she knew where Mrs Bamgbala was, and that she had gone upstairs to check the bedrooms.  Mrs Seaton responded that she didn’t care who was calling, she wasn’t going to do Mrs Bamgbala’s job for her.  Later the same day, she heard Mrs Seaton stating to staff that she was running the Home.  Mrs Beyer pointed out to her that this was a contradiction.  Mrs Beyer concluded that the relationship between Mrs Bamgbala and Mrs Seaton was not good.  In her view, the attitude shown by Mrs Seaton was sufficiently insubordinate for her to be sacked.
6.8	Mrs Beyer had discussions with Mrs Seaton about her attitude towards her employer.  Mrs Seaton could not see any problem with her own attitude and could not see that she had any duty to bring matters to the management’s attention rather than phoning the Registration authority about them directly.  Mrs Seaton told Mrs Beyer that the residents were only at the Home because she was there and if she left then the residents would leave with her.  She described another incident when the cook came in to the home one day and told the staff that they could expect a visit from the inspector because she had made a complaint to the inspectors about the cooker.  When asked by Mrs Beyer why the matter had not been reported to the management first, the cook replied that she did not even speak to “her”, namely, Mrs Bamgbala.
6.9	Mrs Beyer gave oral evidence that in her view many of the problems at the Home were caused by Mrs Seaton and her attitude to Mrs Bamgbala.  She described the incident when Mrs Beyer had found Mrs Seaton giving one of the residents a bath with her grand-daughter present in the bathroom with her.  Mrs Beyer told her that the child should leave and the cook responded to Mrs Beyer that if the child went, Mrs Seaton would leave and if she left the staff would leave with her.
6.10	Mrs Beyer had been present at the Home when both Mr M and Mr D had been admitted as emergency admissions.  They had been placed at Social Services’ request and had been accommodated successfully despite the desperate circumstances of their arrival.  Both had arrived at very short notice on a Social Worker’s assessment and one of them had arrived alone in a taxi.
6.11	She also described an incident when arrangements had been made for Ms W, a learning disabled resident, to be collected by Mrs Mary Reynolds, to attend an afternoon tea.  Mrs Beyer described how Ms W had been reluctant to change her clothes and had expressed a wish not to attend with Mrs Reynolds.  When Mrs Reynolds arrived to collect her, she had been very irate to find that Ms W was not dressed in her best clothes, and was not ready to leave at the time that she had specified.  Mrs Beyer gave evidence that from her work at the sheltered housing scheme, she had learnt that the residents have a right to express their own wishes and should not have decisions imposed upon them, if they have the capacity to express their own wishes.  Mrs Beyer was told the following day that Mrs Reynolds had made a complaint about her preventing Ms W from coming out and that the complaint had been made through Mrs Seaton.
6.12	Mrs Beyer gave evidence about her previous experience of care plans and records, which had been very carefully policed in her previous employment. She did not find the care plans at the Home to be wanting, although Mrs Seaton did tend to take over from other members of staff and would have completed forms for them. Mrs Beyer described how she had received a telephone call from Mr Cotterell about 18 months after her final visit to the Home, asking about the situation there and any problems which she had encountered during the time that she visited.  Mrs Beyer did not consider it appropriate for Mr Cotterell to be asking such questions of her and told him to direct his enquires to the Home.
6.13	Mrs Beyer gave oral evidence that she had never heard Mrs Bamgbala shouting at residents or in their presence and had not seen her being abusive to residents.
6.14	Both Mrs Kendall and Mrs Tremayne were related to service users placed at the Home and were glowing in their praise of the care offered there and the pleasant atmosphere generated within the Home.  Mrs Kendal gave evidence that she had contact with the Home over several years, having placed her father there first, followed some time later by her mother.  She stated that the Home was well suited to her father because having been a labourer all his life he did not want “anything grand”, preferring a home where he would feel comfortable.  When asked about the evidence relating to the breaches of the fire regulations, Mrs Kendal explained that she would prefer her mother to die in a fire at a home where she was happy than to live unhappily in a home which complied with the fire regulations.
6.15	Dr Anifowashe gave evidence that he is a hospital doctor treating elderly female patients, had visited a care home in Wandsworth and felt that he was in a position to assess the quality of care provided within a care home.  He visited Sharpness on three or four occasions in the summer of 2004 and found it very peaceful.  He stated that he was impressed with the care and attention given to the residents and in the context of his limited experience of the Home gave a good reference for the care provided.
6.16	Dr Ola Odunubi gave evidence that he had been away from the Home between 2002 and 2005 and had been pleasantly surprised on his return to discover how much Mrs Bamgbala had managed to achieve single-handedly, in his absence.  Having noted the improvements carried out, he described himself as “flabbergasted” when he read the inspection reports.  He gave evidence about the work he had done to help redecorate, and the report still stated that the room he had painted required redecorating.  He informed the inspector that they had overlooked the fact that he had painted the room, but was told that they could not discuss the matter with him because he wasn’t involved in the home.  It was at that point that he had decided to advise Mrs Bamgbala to proceed with her proposed sale of the Home, on the basis that she could not win with current inspectors.
6.17	Dr Odunubi confirmed that he had tried to assist Mrs Bamgbala both in relation to the sale to Norwich Healthcare Ltd and with postponing the cancellation process.  He had visited the Commission’s offices with her to try to delay the cancellation procedures, in order to facilitate the sale, and had been told by Mrs Anne Doswell-Moore that if they could sort out the management problems, pay the staff wages and address the other outstanding requirements, then the Notice would be lifted.  He expressed his view that the decision to uphold the cancellation notice had been unfair without a visit to the Home. He assisted Mrs Bamgbala in the preparation of her written submissions to the Commission in response to the Notice of Proposal.
6.18	Mrs Bamgbala called Mr Simon Storrie, an insurance broker, who arranged her insurance cover at the Home, to give evidence of an independent assessment of the Home for insurance purposes.  Mr Storrie described how the insurers, Ecclesiastical Insurance, had become concerned about the results of the Home’s inspection in May 2006.  They had threatened to withdraw their cover.  At Mr Storrie’s request, they had agreed to visit the home and to undertake their own assessment of it, including the documentation and record keeping, before making the decision.  He described how they had undertaken a three hour inspection of the Home and paperwork and had concluded that there were no grounds for serious concerns and had agreed to provide the necessary cover.  Mr Storrie confirmed in evidence that he had deliberately not provided the information prior to the day of the hearing because he wanted to attend to give the evidence orally.
6.19	Mrs Bamgbala did not pursue her allegations of racism at the hearing, other than towards Mrs Reynolds, who denied such allegations vehemently, and Mrs Seaton.
7.0	Reasons for decision
7.1	We considered all the evidence presented, both orally and in the documentation presented to the Tribunal.
7.2	We considered the evidence first of all in respect of the allegations upheld in the Notice of Cancellation.  We considered the evidence presented in support of the alleged breaches and then considered the seriousness of the allegations overall, to decide whether the allegations which we found proved, justified the cancellation of the Appellant’s registration.
7.3	We considered the allegation that Mrs Bamgbala was not in day to day management of the Home and had failed to appoint a suitable manager to manage when she was not a fit person to do so.
7.4	Although Mrs Bamgbala disputed throughout the hearing that she was anything other than in control at the Home, we looked objectively at the evidence and found that she had since the early part of 2003 been seeking to appoint a manager at the least, to assist in the running of the Home, if not to take over the management from her.
7.5	It is clear from the evidence that there were relationship problems between staff and management at the Home and we accept Mrs Beyer’s evidence that there was insubordination by Mrs Seaton.  We also accept the evidence that matters were being reported to the Commission by the staff rather than to the provider or manager, in an attempt to undermine and discredit Mrs Bamgbala.
7.6	Initially, Mrs Bamgbala had approached Mrs Beyer, and her oral evidence suggests that the outcome at the Home would have been significantly different if she had been able to take up a formal management role and had an opportunity to put management strategies in place.  Unfortunately, her health did not allow her to do so and her involvement with the Home ended.
7.7	Mrs Bamgbala then approached an Agency to find an appropriate manager, and they put her in contact with Mr Paul Lawrence.  He again, made some useful contributions based on his previous managerial experience, but did not have the requisite experience within the care field to be appointed as manager.  As a result, he left the Home in July or August 2005.
7.8	Just before his departure, at the end of May 2005, she sought to appoint another manager who did not accept the job offer.
7.9	We accept Mrs Bamgbala’s evidence that she then approached Mrs Silvey with a request for assistance in finding a manager.  Unfortunately, this does not form part of the role of the Commission.  Mrs Bamgbala appeared to attribute to the Commission a role that was significantly different from their actual regulatory role.  She expected advice and guidance and was disappointed when she did not receive it.  At the same time, she appeared to be unable to make use of the advice which she received, assuming that she knew best.
7.10	The deteriorating situation in terms of health and practical management pushed Mrs Bamgbala into a desperate situation in late 2005.  She entered into a management agreement with Norwich Healthcare Ltd, which appear to have been more advantageous for them than her.  She did not appear to appreciate that despite the agreement, she remained the registered provider shouldering all the legal responsibility for the running of the Home, and, it seems, the wages bills, whilst Norwich Healthcare Ltd was receiving all the payments.
7.11	Norwich Healthcare Ltd placed Mrs Seaton, who had done so much to undermine Mrs Bamgbala’s authority within the Home, as Acting Manager: a position where she appeared to flaunt her power within the Home and to seek to intimidate Mrs Bamgbala further.
7.12	In our view, the attempt to find a suitable manager for the Home may have been an unspoken acknowledgement of the difficulties Mrs Bamgbala found with managing the administration and record keeping.  We noted her evidence about the Home being her dream and her lifelong ambition and we accept that that may be true.  If that is the case, then her interest is in the caring element rather than in the administration, otherwise she would have made a greater effort to put right the identified areas of concern to the Commission.
7.13	The issues which were identified by Mrs Silvey in relation to the rota we did not consider to be serious.  Nor did we consider that the fact that Mrs Bamgbala was sometimes in the house to be a serious issue.  The proximity of the house to the Home was such that she could be easily called back from a meal break there.  We accepted Mrs Bamgbala’s evidence that she was at the Home most of the time, except during the early months of 2006.
7.14	The evidence in support of the allegations of acting contrary to service users’ privacy and dignity we concluded were not well founded.  The incident described by Mr Cotterell and Mrs Silvey in the office may have been distressing to them, but we did not accept that it could, by extension, be assumed to be distressing to the service users, without very specific factual information that that was the case.  We accepted Mrs Reynolds’ evidence about the incident when she was subjected to verbal abuse by Mrs Bamgbala, but again cannot find evidence other than assumption to attach this to the issue of service users’ privacy and dignity.
7.15	Although Mrs Bamgbala offered alternative explanations about both incidents, we did not accept them.  We preferred the evidence of the inspectors and Mrs Reynolds about the incidents, since it is very unlikely that they would have made up such extreme allegations without some substance of fact to them.  From her written representations to the Commission, we accept that Mrs Silvey’s visits caused Mrs Bamgbala a great deal of stress and we have concluded that the incidents described could be attributed to her losing her temper.  We cannot link either directly to a breach of service users’ privacy or dignity, but they are matters which should be considered in the context of being a fit and proper person to manage a care home.
7.16	The other allegations made about incidents uncovered after the appeal had been lodged were based on the evidence of Mr Chiles and Mrs Reynolds.
7.17	We had grave reservations about the evidence of Mr Chiles, bearing in mind that he acknowledged that he had not made a complaint immediately after the alleged incident in April, so as not to jeopardise his employer’s business opportunities.  He made the complaint after the sale appeared to have fallen through, and when his own employment had ceased and we must question his motives for making a complaint at that stage.  It was clear from his evidence that there was an element of ill-will between him and Mrs Bamgbala, and much of what he said was hearsay and general in its nature.  We also noted contradictions in his evidence such as the explanations as to why the staff were not being paid, for which he offered three different reasons and his variations on the issue of Phyllis King’s alleged abuse. In the light of this, we are not prepared to accept his evidence to support the allegation.
7.18	We accepted Mrs Reynolds evidence and have no hesitation in accepting her denial of having made any racist remarks directly to Mrs Bamgbala.  We accepted her evidence that E had been put in pants with holes in them on the day of her hospital visit.  We do not accept that this was a major issue.  We also accept Mrs Bamgbala’s evidence that the carer who dressed her that morning was reprimanded for it.
7.19	Mrs Reynolds’ evidence about the exchange between Mrs Bamgbala and Mrs I was not pursued at the time that it was made in July 2005.  It seems that the inspector did not consider it necessary to investigate the complaint and took no action at the time.  Although Mrs Reynolds said that she was relying on her diaries, without evidence from others who may have known the service user better, we are not prepared to make an adverse finding on this issue.
7.20	The requirement that the Home should provide users with a cordless phone we considered to exceed the National Minimum Standard.  We did not consider the failure to provide a working cordless phone to constitute a breach of the Regulation.
7.21	There were two other issues which we found to be relevant in the context of the privacy and dignity of the service users.  The first was the very significant issue of Mrs Seaton bathing a service user in the presence of her granddaughter, which is a major breach of the regulation and secondly, the manner in which the remaining residents were removed from the Home.  Despite the fact that there were issues surrounding the conduct of both the Commission and the County Council in relation to the closure, the few remaining residents at the end of November 2006 were given only a week to find alternative homes.  The situation would have inevitably caused unnecessary anxiety and distress to those service users who remained and would have been detrimental to their dignity.
7.22	The issue of management of medications is a very important issue.  Mr Jones found on each inspection a large number of requirements relating specifically to medication and which could have potentially serious outcomes.
7.23	We found Mr Jones to be an honest and compelling witness.  His evidence was clear and precise and we felt that his indication that he held a personal opinion relating to the category ratings which differed from that of his employers, indicative of his strength of character and independence of thinking.
7.24	The evidence presented over a significant period showed that the Home was sloppy in its administration of medicines.  Despite the five pharmacist visits and the advice offered by him, a decent system to ensure the safe administration of medicine to service users had not been achieved at the Home.  Given Mrs Bamgbala’s background in nursing, we were disappointed that she had not been able to resolve the issue quickly and efficiently, reflecting her professional training in the field.
7.25	It is ironic to note that the one identified medication error occurred in March 2006 when Mrs Bamgbala was not directly involved in the management of the Home. It did, nevertheless, happen and in our view, could have happened at any time because of the lack of clarity over the administration policies and practices.  There was a long list of issues which we found to constitute breaches of Regulation 14:  the lack of a medication policy and protocol; the lack of a homely remedies protocol; incomplete or incorrect MAR charts; mix-ups in the medication records of Mr and Mrs S; failures in relation to temperatures, failure to mark dates of opening and failing to change Mr D’s medication on his discharge from hospital.
7.26	Having found the evidence in favour of a serious breach of Regulation 14, we found ourselves in the curious situation of having the final inspection report identifying the Home’s medication provision as adequate overall, but finding major breaches.  We agree with Mr Jones that the finding of “adequate” overall, is meaningless in a situation where so many concerns remain outstanding.  Although Mrs Bamgbala gave oral evidence that she did not regard the attaining of a standard as being the end of the matter, and that standards had to be maintained, we have concerns and concluded that her practice remains, as was indicated in her written representations to the Commission, that they are “done and dusted problems” and that she need not worry about them any further.
7.27	So many identified concerns in relation to medication could not be allowed to continue unchecked and it is our conclusion this was a very significant and continuing breach, and a major concern relating to the way in which the Home was run.
7.28	A significant portion of the oral evidence was around Mrs Silvey’s dissatisfaction with the service user’s plans.  This was an issue that appeared regularly in the reports and in the requirements.
7.29	There was little documentary evidence to support the allegations that the care planning and the review of care plans was insufficient.  We were not presented with documentary examples of deficient care plans by Mrs Silvey, nor did Mrs Bamgbala produce an example of a plan which she considered appropriate.  Because of the nature of the allegation made, we found this surprising.
7.30	In the absence of any concrete evidence upon which to reach a conclusion, we have decided that the possibility of there being significant differences in style and presentation, as well as content, does not allow us to make an adverse finding on this issue.
7.31	Environmental issues were at the forefront of the inspectors’ concerns in the early inspections up to 2004, but following Mrs Bamgbala’s refurbishment most of the difficulties were resolved.
7.32	The evidence relating to the temperature at the Home during the inspection in May 2006 from Mr Cotterell, we did not find reliable.  His explanation about his handwritten notes did not ring true and we found it  very unlikely that Mrs Bamgbala would have referred to her difficulty in maintaining the Home at a temperature of 30F (below freezing).  The obvious explanation was that he had made an error in his recording, but he tried instead to create an unnecessarily elaborate explanation, which we did not accept.
7.33	We noted with interest the evidence from Mrs Kendal, that the home had particularly suited her father, who didn’t want “anything grand” having been a labourer all his life.  Once again in relation to environmental issues such as decoration, it is likely that the parameters as to what is appropriate can be widely set, depending on background and cultural influences.
7.34	Mrs Bamgbala accepted that there were breaches of the Regulation prior to 2003, and we are satisfied on the evidence presented that the breaches were significant.  We found on the evidence that these breaches had been resolved, over a considerable period and we were satisfied that there were no current breaches of the Regulation in terms of the environment of the Home.
7.35	We considered the position in relation to the administration of service users’ money.  This was an issue raised by the inspectors from the outset in 2002 and which has remained a serious concern throughout the period of Mrs Bamgbala’s management.
7.36	We accept Mrs Bamgbala’s evidence that there was a period in 2002 and 2003 when she wasn’t paid for providing accommodation for three service users.  We also find that this is because she had not submitted invoices to the appropriate authorities to enable them to make the payments. This matter had no bearing on the manner in which service users’ monies were administered within the Home.
7.37	We heard evidence from two different witnesses, Mrs Silvey and Ms Causon about the methods utilised by Mrs Bamgbala for storing receipts for expenditure:  in a black bin bag and in a box.  Neither is indicative of a methodical and secure system of recording use of service users’ money.
7.38	Ms Causon’s report is clear and concise and confirms Mrs Bamgbala’s failure to implement adequate systems to record the use of service user’s money.  We accepted her evidence in full, and did not consider that there were any grounds to support Mrs Bamgbala’s allegation that she had not used all the receipts that Ms Causon had received from her.
7.39	Mrs Bamgbala was adamant when giving oral evidence that she did not accept that there was anything wrong with her own system of recording transactions and that it was the best system.  We disagree.  The difficulties which she encountered in relation to service users’ money, culminating in a Police investigation, is testament to the fact that she was not adequately recording transactions, and in so doing was not doing herself any favours either, because sums of money were found to be missing and sums were found in the safe, the owners of which were unknown.  In our view, if it had been her intention to be dishonest then she would not have invited Mrs Reynolds to be the appointee for Ms W.
7.40	We were not presented with any allegations of dishonesty by the Commission against Mrs Bamgbala.  From the evidence, it appears that the Police investigation and her arrest, arose from her own report of stolen money in August 2005.
7.41	The only suggestion of dishonesty came from Mr Chiles, who claimed that during his stay at the Home, no hairdresser called, and the only haircutting he saw was done by Alicia, the carer.  Bearing in mind that he was only at the Home full time for five weeks, we did not consider the evidence to amount to more than confirmation that there hadn’t been a hairdresser there for that length of time.
7.42	Even if Mrs Bamgbala was not dishonest, she did not have in place sufficiently robust systems to protect the service users or to protect herself from allegations of misconduct. It is a clear example of an area where the Regulation benefits both the service provider and the service user and she failed to appreciate its importance.
7.43	The issues raised in the context of management of service users’ monies raised a number of issues for the Tribunal: Mrs Bamgbala sought to abrogate responsibility, when she was in no position to do so, because she was the registered provider; she tried to link the non-payment of fees with the failure to balance the books in relation to service users’ money, even when the non-payment issue had been clarified for the most part; she failed to realise that the non-payment of fees was as a result of her own failure to submit invoices.  The greatest concern is that she did not realise the need for structure and administration when dealing with financial matters.
7.44	Fire regulation breaches in the Home were identified and addressed, albeit over a period.  By the time of the hearing, all the outstanding issues had been addressed apart from the intumescent strips.  Mr McCahill confirmed in evidence that this has been a requirement since 1992, and is still not addressed in a number of buildings.  Although it is a requirement, in our view it is not a major breach.
7.45	Mr Curtis sought to make a great deal of the fact that Mrs Bamgbala could not understand Mr McCahill. The panel found his explanations technical and tortuous and would have found it difficult to follow his explanation regarding the intumescent strip, without his practical demonstration, and had some sympathy for her difficulty.
7.46	We concluded that by the time of the hearing, the fire safety issues had been, largely resolved, except that it was clear to the tribunal that the basement was used for laundry work, and should be regarded as part of the work area, on the basis that if the washing machines and dryers were located there, then they had to be loaded and unloaded.  This would present a further problem in the future, since it would require either removal of the laundry elsewhere or making a second emergency exit for the basement.
7.47	Staff training and recruitment was raised because of the absence of CRB checks and PoVAFirst applications in respect of new employees.  It was alleged that CRB checks were not obtained for new carers arriving from the Philippines and that an application for registration had been submitted in respect of Mr Lawrence before his CRB check had been obtained.
7.48	Mrs Bamgbala’s position in relation to the CRB checks was that it was impossible for her to make checks against foreign staff until they arrived in the country, and she had received confirmation from the agency that checks in the Philippines had been made prior to their arrival. Although the position is correct, it placed on her a far greater responsibility for supervision of the new staff, despite their background and experience abroad.  We were not satisfied on the evidence that the necessary supervision was in place at the Home and was not regarded as a priority for Mrs Bamgbala.
7.49	Concerns were also raised about the lack of staff training and the failure to keep proper records of the training given.  Both of these allegations we found to be proved, and we concluded that the lack of training was a significant issue, particularly in relation to both medication and administration.
7.50	We accepted the evidence of Mrs Silvey about the alleged breaches of Regulation 37. Mrs Bamgbala herself did little to deny that she had failed to notify the Commission of serious incidents such as the loss of £900 in early 2005, Paul Lawrence’s dismissal in July 2005 and Phyllis King’s fall on the 24th March 2006.
7.51	The final issue which we considered was the allegation that Mrs Bamgbala was not a fit and proper person to provide a care home.
7.52	The support that she received from the relatives of service users suggests that there were some areas of the provision that worked well and which were appreciated by them.
7.53	Unfortunately, she encountered regular and significant problems with the administration of the paperwork within the Home.  Although she may have disagreed with Mrs Silvey’s interpretation of the documents and the standards, she was unable or unwilling over a significant period of time to put right those issues brought to her attention and to maintain those standards if they were attained.
7.54	Mr Storrie’s evidence appeared to contradict the findings of the Commission in relation to the administration but we concluded that his evidence was hearsay and had been provided in such a way that it was impossible to verify whether his reporting of Ecclesiastical Insurance’s findings was accurate.  We concluded that their findings enabled the insurance company to continue to provide their cover, but that we could not import into their decision any more than that.
7.55	As already expressed, we believe that Mrs Bamgbala was aware of her own limitations and did try to appoint a manager to assist her in the running of the Home. She was unsuccessful in her attempts, and at the same time, was unsuccessful in putting right those issues, which caused concern to the inspectors.
7.56	We consider that the Commission’s case would have been strengthened by the appointment of new inspectors when Mrs Bamgbala requested a change in 2005.  It is clear from the evidence that the relationship between her and Mrs Silvey had deteriorated significantly and the appointment of a new inspector might have provided a different perspective on the facts for both parties.
7.57	The issue of the NVQ4 qualification was indicative of the difference of viewpoint between the two.  On the evidence, both versions of the story were correct:  Mrs Bamgbala was correct to state that she had completed the course – she had submitted every unit for assessment, and could technically be described as having “completed” the course. Mrs Silvey was also correct in stating that she had failed to produce evidence to show that she had attained the qualification.  Mrs Bamgbala could not because she had not received the final certificate and had not attained the final qualification. She did not, therefore, hold the necessary qualification to be a registered manager.  On the evidence, Mrs Silvey could not acknowledge the merits of Mrs Bamgbala’s frustration at the absence of a certificate and, instead of acknowledging the fact that she did not have the qualification, Mrs Bamgbala continued to defend her position on the basis that the failure was not hers but that of the College.
7.58	When considering the overall picture, we concluded that Mrs Bamgbala’s inability to address and deal with the administration of the Home was a major issue, which went to the root of her suitability to be a registered provider.
7.59	We can actually understand Mrs Bamgbala’s perception that she was the victim of a conspiracy:  we heard evidence that much of the work done by the Commission involved contact with other agencies and that other agencies acted on their recommendations.  The GP and District Nurse were invited to give their views on the quality of care in the Home, and the Gloucestershire Social Services department decided to stop future placements on the strength of the decision by the Commission to propose closure.  Mrs Seaton and the staff were telephoning the Commission directly rather than reporting issues to the management.
7.60	Perhaps of greatest significance is the fact that when the Home eventually closed, not one of the authorities chose to speak directly to Mrs Bamgbala about what was going on.  Actions were taken on the strength of rumour and assumptions, which could have been resolved quite easily by a direct approach to her.  All of his would have created an impression of conspiracy and of people working together against Mrs Bamgbala.
7.61	We accept the evidence that Mrs Seaton was insubordinate and was actively acting against her employer’s interests but Mrs Bamgbala’s inability to deal with this as a personnel issue, is further proof that she is not yet ready to be in charge of staff at a home.
7.62	We can also understand her perception that she was being discriminated against because of her colour: we accepted Mrs Beyer’s evidence of a split within the Home between the old guard of local, white staff and the new staff brought in from abroad by Mrs Bamgbala.  We heard evidence that Mr Cotterell had accused Mrs Bamgbala of being racist against Mrs Silvey and we gain the impression of a very highly charged atmosphere, fuelling a feeling of distrust.  This was further evidenced by the failure of the Commission to include within the Tribunal bundle documents submitted by Mrs Bamgbala, on the basis that they weren’t sure whether she was proposing to call the makers as witnesses, and Mrs Bamgbala failing to respond to requests for information and correspondence.
7.63	At the hearing, we noted Mrs Bamgbala’s ability to master the considerable documentation in the case, and her ability to present her case in a very polite and non-confrontational way, despite the pressure that she must have endured during the nine days of hearing.  She is, clearly, a very able woman, and in reaching the decision that she is not currently a fit and proper person to be the registered provider of a care home, this conclusion is based on the specific issues raised in this case.
7.64	We consider that she is not fit because she has refused to accept and acknowledge the breaches identified and has failed to take steps to remedy them.  The important breaches were the administration of service users’ monies, the medication and general management of the Home.  She has shown herself to be incapable of administering records and paperwork and of maintaining good record keeping, but this is an issue that might be resolved by appropriate training and good examples and experience.  She has shown a lack of sensitivity for the feelings of others such as the inspectors and Mrs Reynolds, who, we have found, she subjected to verbal abuse.  She has shown weakness in that she has been incapable of addressing serious conduct issues within her own staff, such as allowing Mrs Seaton to return to work after being sacked on more than one occasion and failing to address the issue of her childminding at the Home.  She also showed a total lack of awareness of the possible implications of the absence of systems to ensure the smooth running of the Home and most of all she failed to understand the importance of endeavouring to comply with the Regulations to ensure the service users’ welfare.
7.65	Mrs Bamgbala gave evidence that she cherished and respected older people:  unfortunately that, on its own is not enough.  She must also be capable of setting up and maintaining appropriate systems to ensure that the regulations are met and to evidence the ongoing commitment to maintaining those standards.  Mrs Kendal gave evidence that she would prefer her mother to die in a fire in a happy home than live in a safe home where she was unhappy.  The purpose of Regulations and National Minimum Standards is to ensure that service users and their families do not have to make that choice and can expect to find both in the home of their choice.
Appeal dismissed.
This is the unanimous decision of the Tribunal
Dated the 14th February 2007.

Mrs Meleri Tudur (Chairman)
Mrs Bridget Graham
Mrs Margaret Williams