HC Deb 18 November 1996 vol 285 cc809-16

Motion made, and Question proposed, That this House do now adjourn.—[Mr.Coe.]

10.38 pm
Sir David Mitchell (North-West Hampshire)

I am grateful to the Under-Secretary of State for Health, my hon. Friend the Member for Chelmsford (Mr. Bunts), for being here to reply to my plea. The subject is the appeals procedure relating to the closure of the Fransware nursing home, and it focuses on the actions of Hampshire county council social services department and of the local government ombudsman, who could not bring himself to investigate the county council's actions.

The appeal concerns a Mrs. Francis—a much respected member of Andover's community, who ran a rest or nursing home and who, to her total astonishment and that of the local community who knew her, to the astonishment of the county council's local area social services team and to the astonishment and disbelief of residents in her home and their relatives, was arrested at 8.45 am one morning and taken to Andover police station on a complaint that she had ill-treated her residents. She was released at 12.50 pm.

Immediately after her release, she was informed that Hampshire county council social services department, at county level, was making an immediate application to the magistrates to have the home closed on the ground of Mrs. Francis's physical and mental cruelty to patients. With only one hour and 10 minutes, Mrs. Francis found a local solicitor and briefed him for a 2 pm hearing in the magistrates court. The magistrates heard the case and, rightly, threw it out.

I must turn the clock back three months to January 1992, when Mrs. Francis took in a Mr. and Mrs. Earl—that is not their name, but I want to protect their family. Mr. Earl was known as a difficult and, some might say, plain cantankerous, old man. After some weeks, Mrs. Francis found that he disrupted the home so badly, upsetting other residents, that she gave him a month's notice. It should be noted that Mr. Earl did not want to leave. Indeed, he became very angry and objected strongly. On the evening before his departure, he told Mrs. Francis, "I'll get you for this."

I recognise that any county social services department would be in a quandary if it received notification from the police or any other source that patients, for whom II had a responsibility as the licensing authority, were allegedly being ill-treated. There have been too many cases in other parts of the country in which failure to act has rightly been criticised. I can understand Hampshire county council considering whether to withdraw the licence, but for goodness' sake, before taking such a drastic step, why did the council not inquire about the home from those who were really in the know?

For example, why did the council not say to the proprietor, "These charges have been made. What is it all about?" Why did the council not ask the relatives who were always popping in arid out to see patients, or even ask the local office, which would have told them, Whatever time of the day you went into Fransware, the atmosphere was always friendly and relaxed"? This is a home where the local county social services department found relatives, social workers, district nurses and GPs were in and out all day long. If patients were ill treated surely someone would have noticed. Having started on the road to closing the Fransware nursing home, however, there was no stopping the county council juggernaut. Aspects of the case would have made any reasonable person pause and think again. The relatives of nine out of the 10 residents wrote to condemn the county council's proposed action. The 10th resident had no relatives, but a local solicitor acted for her. On the closure of the home, he had so much confidence in Mrs. Francis that he asked her to look after his ward personally and privately.

I shall quote one of many similar letters. It was sent by Mrs. Byrne, who writes: My mother has been a resident in the home for about three years. She is senile, almost blind and totally incapable of looking after herself. My father lives in Andover and we both visit the home frequently. Never have we had cause to complain or in the slightest way to suspect that the treatment my mother is having is anything other than suitable, correct and caring. She is always clean and content and clearly well fed … We visited frequently, often when not expected and never found anything in the slightest untoward. In spite of what one might have thought, the county council proceeded.

One of the charges was that Mrs. Francis had ill-treated one of the patients—a sprightly old lady, who was eager to give evidence that, far from treating her roughly as had been charged, Mrs. Francis had treated her "gently". The county might have paused when it noted that, following its own official inspections in 1989, 1990 and 1991, letters were sent to Mrs. Francis that were generally complimentary. The social services department took the matter to its social services sub-committee.

Mr. J. R. French, a well-respected local solicitor retained by Mrs. Francis, said: it is almost a foregone conclusion that the Council will succeed in its application before its own Social Services Sub-Committee … It is difficult to see what point there is in the Sub-Committee hearing unless the Council Director of Social Services is manifestly acting in bad faith (although in any event he will not be open to cross-examination). Interestingly, he continued: letters I have written to employees of the Department have been responded to by the Director, inviting me to make any contact with employees through him. That sounds like an easy, unbiased way of getting information, does it not? He went on: The implication is that he would not consent to their involving themselves in Mrs. Francis' 'defence'. The county sub-committee duly confirmed the case of the county social services. There are certain aspects worth noting. On 15 October 1992, the council made a decision against Mrs. Francis. I shall mention three of the grounds.

First, the council said: You have on occasions physically assaulted residents. I can tell the House about that case. Mr. and Mrs. Earl were due to go to bed one evening, and the nurse who went to see them to bed came down to fetch Mrs. Francis, because a fight was in progress. Mrs. Francis went up and found that not only were the two having fisticuffs but Mrs. Earl was fouling her underwear. In that circumstance, Mrs. Francis had to do something physical to separate the contestants. It was alleged—I would not be surprised at this—that she slapped Mrs. Earl to effect that separation. What the heck else she could have done, I do not know.

Secondly, Mrs. Francis was told: You have on occasions forced a resident to drink against her will. She had been advised by the doctor that that resident should increase her consumption of liquids. Thirdly, she was told: You have subjected residents to a toileting routine that failed to give consideration to their needs, including their need for dignity, their wishes and feelings. When incontinent old people do not go to the loo because they have dementia and cannot remember, what can one do other than have a routine to trot them through at the right time so that they are protected from wetting their underwear? Of course such things have to happen in the real world of people who are in advanced stages of old age and, in many cases, dementia.

Mrs. Francis appealed to the rest homes tribunal and the case was heard in March a year later. The first hearing took five days. The county council presented its case, and the witnesses were cross-examined by the council and by Mrs. Francis's solicitor. The five days did not give time for Mrs. Francis's case to be put at all. Accordingly, the tribunal adjourned until July. By then, Mrs. Francis was bust. The county had by its ill-considered actions destroyed her business, and negative equity in the premises polished it off.

The local government ombudsman wrote: Section 26(6)(a) of the Local Government Act 1974 prevents the Local Government Ombudsman from investigating any matter for which the person aggrieved has or had a right of appeal to a Tribunal, except if the Local Government Ombudsman is satisfied that it is not reasonable to expect the person to resort to it. In this case Mrs Francis resorted to her right of appeal to the Tribunal. I considered carefully your contention that Mrs Francis could not afford to complete the appeal and therefore it would be open me to investigate her complaint. I am of the view that it would be wholly inappropriate to exercise discretion and pursue this case. That is because, even if 1 were to make enquiries, I would have no powers whatsoever to challenge the decision made by Hampshire County Council to de-register Mrs Francis. That power lies only with a Tribunal or the Courts. I therefore confirm that I see no grounds to change my predecessor's opinion that this complaint should not be pursued further. That letter is from the local government ombudsman, over the signature of Mr. J. R. White, and dated April 1996. I appealed to the county council to give a fair hearing, but I did not get very far. The leader of the county council, Councillor Hancock, simply reasserted what had been said by the chief executive.

Finally, this August I had a letter from Mr. Stephen Adam of Hampshire county council that took broadly the same line as had Mr. Hancock. It stated: I appreciate your view that she"— Mrs. Francis— had a full defence but could not afford to continue to be legally represented and thus had to withdraw; whilst we can never know whether this would have affected the ultimate outcome, the fact in law is that her withdrawal concluded the tribunal's proceedings and that by choosing"— choosing is the word that was used; it made me choke— not to continue her appeal she had accepted that the case made against her had succeeded. The poor woman has not had the opportunity to put one word of her case to the tribunal, because she ran out of funds as a result of the actions of the county council in bringing about her bankruptcy.

I raised the question of a reference so that Mrs. Francis could get other employment. The letter continued: In the event of any request being made to the Social Services Department for a reference … We would be bound to take the above circumstances into account. In other words, having destroyed her business, Hampshire county council is pursuing its vendetta to the point of destroying her ability to earn a living by refusing her a reference.

A constituent of mine has had her business ruined by the county council's overreaction and has been brought to the door of bankruptcy. She is unable to put her case and has been told by the ombudsman and county council that she has had an opportunity to appeal when clearly she has not. Finally, she has been denied a reference for a job. I hope that the county council officials, the chief executive and leader of the county council and the ombudsman are thick-skinned enough to sleep easy in their beds. I have wrestled with the case for four and a half years and explored every avenue to get Mrs. Francis the opportunity to clear her name. I invite the Minister to consider the appeals procedure for those very good reasons.

10.52 pm
The Parliamentary Under-Secretary of State for Health (Mr. Simon Burns)

I am pleased to have the opportunity to respond to my hon. Friend the Member for North-West Hampshire (Sir D. Mitchell) and congratulate him on securing a debate on a subject which is significant not only because of Mrs. Francis' important case but because of the whole question of the appeals procedures relating to the closure of Fransware nursing home. I recognise that it is an important issue. My hon. Friend has made clear his case that the Fransware rest home should not have been closed. It happened more than three years ago, and it would be wrong for me to try to go into the merits of the case brought against Mrs. Francis by Hampshire county council.

The Department of Health has no role in the quasi-judicial procedure prescribed in the Registered Homes Act 1984 except to the extent that it provides administrative support to the wholly independent registered homes tribunal. However, I agree that it is unfortunate that Mrs. Francis has not had an opportunity to present her side of the case and to defend her reputation and livelihood before the competent authorities. I understand her feelings about the way in which the procedures operated to produce this extremely unsatisfactory conclusion.

I hope that my hon. Friend will bear with me as I explain that the purpose of the Registered Homes Act 1984 and the enforcement mechanism that it provides is to ensure that people in residential care are safeguarded from harm. We cannot allow elderly, frail and often confused people to be given an inadequate level of care. The primary duty of the authorities that regulate homes is to protect vulnerable people. I suspect that no one would disagree with that. On the other hand, the home owner is also entitled to justice and fairness. It might be helpful if I briefly explain the procedures to be followed if an authority wishes to deregister a home. The Registered Homes Act 1984 sets out a number of stages that seek to ensure that allegations of poor care are properly investigated and dealt with in accordance with the rules of justice. Home owners against whom such allegations are made can first make representations to members of the authority. If necessary, they can subsequently appeal to a registered homes tribunal and from there to the High Court on a point of law.

In this case the appeal to the tribunal was started but was subsequently stopped when Mrs. Francis withdrew the appeal before her side of the case was put. I shall explain later the circumstances behind that withdrawal.

I am told that, before the investigations made by the police in April 1992 into allegations of abuse of residents, the home had given the authorities no significant cause for concern. The local inspectors reported only relatively minor matters that did not affect the home's registration. Following their early investigation, the police reported their concerns to the authority, which correctly began its own investigations. As my hon. Friend has pointed out, the police subsequently dropped their case.

In this context, it is important to be clear that two related but different issues were being considered. The police would have been investigating possible crimes of assault, whereas the authority was investigating a civil matter as to whether the home could continue to be licensed. In each case the standard of proof is different. The police have to prove a matter beyond a reasonable doubt, while the authority needs to prove its case on a balance of probabilities.

At about the time of the police action the authority considered that there was sufficient evidence for it to apply to the magistrate for an emergency closure order. Such orders can be made under the 1984 Act in certain circumstances of serious risks to residents. As my hon. Friend rightly said, the magistrate threw out that application.

I understand that local media publicity about the action in the magistrates court brought forward a number of ex-members of staff and ex-residents of Fransware who wished to give evidence about care at the home. Clearly, it took time for the authority, Hampshire county council, to investigate those subsequent allegations and to put together its evidence. Thus, it took about three months from the authority's first proposal at the end of April 1992 to cancel the homes registration to complete those investigations in July 1992.

Mrs. Francis had said that she wished to exercise her legal right to represent her case orally to the authority. A hearing was fixed for August 1992, but I understand that it was delayed until October 1992 so that Mrs. Francis could be legally represented. The committee of the authority hearing those matters decided that the registration should be cancelled. Mrs. Francis then appealed to the wholly independent registered homes tribunal, which received notice of the appeal on 5 November 1992.

Following the agreement of the parties, the tribunal was fixed for 24 March 1993 and scheduled to sit for five days. In the event, I am told that those days were taken up entirely with hearing the evidence of the authority. I gather that that was partly because Mrs. Francis's counsel cross-examined the authority's witnesses in detail. Indeed, the whole of the authority's evidence had not been heard at the end of the sitting. The tribunal had to adjourn and offered the parties dates at the end of March 1993 and early April. Unfortunately, the dates did not suit the legal representatives of either Mrs. Francis or the county council . The hearing was finally scheduled to resume on 22 July 1993.

Before the hearing resumed, Mrs. Francis had to withdraw; I understand that that was for financial reasons. That left the tribunal with no alternative but to find for the authority and the home subsequently closed.

It is true that that meant that the residents of the home and their relatives were unable to lend Mrs. Francis their support in the appeals process. To my mind, that is very unfortunate, and as I said earlier, I can appreciate how Mrs. Francis must feel. The merits of the arguments on both sides have not been properly judged. Sadly, I have no powers to intervene and it is not for me to judge whether the home should have been closed or not. I do appreciate Mrs. Francis's sense of grievance that the issue was never finally determined, and her bitterness is, in my view, justifiable.

I can, however, tell the House that we are well aware that the enforcement mechanisms in this area are felt by authorities and homeowners alike to be remote, cumbersome and expensive. That was pointed out to Tom Burgner, who conducted our review of social services regulations and inspections. He recommended a new system of local mediation which might prevent some cases from having to reach the tribunal stage, involving as that does senior lawyers on both sides, the rigours of a judicial system and great expense. We are not sure that such mediation is the answer, but we agree that the enforcement mechanism needs to be examined to ensure that it operates expeditiously and fairly to resolve disputes in the interest of all concerned. In the coming few months, we will be looking at the rules of the tribunal and other parts of the appeals system to see how it might be made to function better.

In the White Paper, "Striking the Balance", on the future of legal aid in England and Wales, the Government said that although they had decided not extend legal aid generally to more tribunals, they would consider doing so where any particular tribunal would work more cost effectively if legal aid paid for representation. Such an extension would be dependent on the cost control measures proposed in the White Paper being in place. If it is clear that cases such as that of Mrs. Francis are the norm rather than the exception, I will certainly raise the matter of the extension of legal aid to representation at the tribunal with my right hon. and learned Friend the Lord Chancellor, although sadly that will not help Mrs. Francis's case.

My hon. Friend also raised the possibility of the local government ombudsman investigating the actions of Hampshire county council in this case. I share my hon. Friend's concerns and was myself interested in the possible role of the ombudsman in determining Mrs. Francis' complaints. To that end, we have been in touch with the office of the ombudsman in the past day or so. I understand that its initial view is that, because Mrs. Francis has exercised her legal rights of appeal, there is nothing further that the ombudsman can do.

My hon. Friend may wish to pursue this matter further with the ombudsman to see whether the ombudsman will reconsider that opinion, in the light of all the facts and the unusual circumstances involved in this case and given that the tribunal never reached a decision. Obviously, I can in no way prejudge, pre-empt or seek to persuade the local government ombudsman, who is totally independent, on this issue. As I said, my hon. Friend may wish to pursue the matter, but there is no guarantee that the ombudsman will change his view.

In conclusion, I understand Mrs. Francis's frustration at the fact that the procedures were never able to reach a logical conclusion and a decision on the case between Mrs. Francis and Hampshire county council. It was through no fault of Mrs. Francis that the case ended as it did: she ran out of money so the tribunal was unable to conclude hearing the case and reaching a decision. As I have said, it is deeply frustrating and extremely unsatisfactory, and I have a great deal of sympathy for Mrs. Francis, who has suffered the cost, both financially and in terms of her personal well-being.

Question put and agreed to.

Adjourned accordingly at four minutes past Eleven o'clock.