The ruling has national importance because it sets the bar for what is an acceptable care facility for vulnerable adults and indicates a commitment from regulators and the government to follow through with their long-drawn-out pledge to transform care for this group of people.
“We conclude that the proposed care home creates unacceptable and serious risks to service users”
A tribunal was launched after Lifeways Community Care appealed a decision by the CQC to reject its application to register a new nine-person care home complex, called Springside, to provide staffed accommodation and personal care for people with a learning disability, autism or mental health issues.
Springside is a row of adjoining single-storey housing units renovated from a former NHS care home in Walsall, West Midlands, which includes two bungalows each offering three en-suite bedrooms with shared kitchen and living room facilities, and three self-contained flats each with their own front door.
The care home residents would have been required to share some facilities, including a large garden and car park, with people from six supported living flats located on the same site and also overseen by Lifeways.
The CQC turned down the provider’s application submitted in January 2018 because it determined that it did not accord with national guidance and policy that was developed as part of the Transforming Care agenda, which is the national response to the Winterbourne View abuse scandal.
The guidelines state that new services for people with learning disabilities should not be created “as part of a campus style development or congregate setting”, and that ideally facilities such as Springside should house no more than six residents.
The tribunal, held in Birmingham, heard from high-profile figures including Ray James, national learning disability director at NHS England and the senior responsible officer of Transforming Care.
He told the hearing that the programme was designed to reduce the likelihood of people with learning disabilities and autism spending unnecessary periods in specialist inpatient settings, and to enable them to live independent lives within their local communities.
In evidence that the judge later described as “highly persuasive”, Mr James said the proposed care home was “not close to compatible to what is an appropriate setting” and had “many characteristics of the campus and congregate sites that are described as inappropriate”.
Placing vulnerable people in campus-like settings increased the risk “of the wrong things happening”, Mr James told the court.
“I am delighted the first-tier tribunal has recognised that our decision to refuse this variation in registration was justified”
He thought the proposed care home looked “institutional” because of its size and the way it stood out from the surrounding neighbourhood and questioned why a local authority would need such a large residential facility when the focus should be on more independent living arrangements.
The proceedings also heard from Dr Theresa Joyce, the CQC’s national professional advisor for learning disabilities and independent clinical psychologist who has spent three decades studying the research evidence that underpinned Transforming Care.
She said Springside looked like a care facility rather than typical housing and noted that outcomes for people with learning disabilities tended to be better when they lived “in the same sort of ordinary places as everyone else”.
Likewise, Helen Toker-Lester, who used to oversee the Transforming Care programme on behalf the Association of Directors of Adult Services, said the building looked “very different to the housing around it” and more like a “health centre”.
She thought it had an “institutional feel” and created “a sense of otherness, that people with learning disabilities are different from those living outside”.
Ms Toker-Lester judged that the development of the care home carried “significant risks” and added: “In this proposal, Springside has been developed first and people will be identified to fit into it.”
Chief executive of Lifeways, Justin Tydeman, said the company “fully supported” every aspect of Transforming Care but stressed that he stood by the decision to appeal and that he thought Springside would offer an “excellent service on a high-quality site”.
Also giving evidence was Ian Staples, lead commissioner for Walsall Council, which supported the creation of Springside.
He accepted the CQC’s concerns about the number of residents but added: “Ideally we would look at six, but I had 12 to 15 people looking for places and I didn’t have other sites available, so I made an informed decision and looked at the risks.”
In his evidence, Mr Staples said he needed to balance these concerns with “local need” as well as considering cost effectiveness and resources.
Mr Staples said he knew was taking “a professional risk by supporting something that doesn’t toe the line”, but also stressed that he was “under pressure to get people out of hospital”.
After hearing the evidence, tribunal judge Timothy Thorne and his panel concluded that the CQC was correct to refuse registration of Springside.
They said Springside would have created an environment that Transforming Care was designed to leave behind: “a community within a community, which is perceived by local residents as different”.
“Lifeways are disappointed by the tribunal decision”
“We conclude that the proposed care home and the extent to which it departs from national policy and guidance creates unacceptable and serious risks to service users in the provision of care,” they said.
However, they made it clear that they believed everyone involved in the case on both sides were “acting in good faith in what they considered to be in the best interests of vulnerable service users”.
Welcoming the decision, Joyce Frederick, deputy chief inspector of registration at the CQC, said: “I am delighted the first-tier tribunal has recognised that our decision to refuse this variation in registration was justified and in the best interests of those who would have potentially used this service.
“The panel agreed with the analysis of CQC witnesses that to allow registration in these circumstances would not promote the Transforming Care agenda and that ’if we accept Good Enough we can’t transform the service and achieve the necessary change’.
“This recognises the important role that the CQC has in making decisions about registration that protect and promote the health, safety and welfare of people with complex learning disabilities and/or autism.”
However, a spokesman for Lifeways said: “Lifeways are disappointed by the tribunal decision, as we felt strongly that the homes we are providing are of a high standard, meet the needs of local people, and also meet the principles of ‘Registering the Right Support’, principles that we support.
“The homes were developed in close collaboration with the local authority, who are clear that they meet the needs of the people in the borough.
“We will continue to work with both commissioners and the CQC to ensure that future developments are of a high quality and meet the needs of the people we support.”
Transforming Care was published in 2012 after a BBC Panorama investigation exposed a regime of physical and psychological abuse at the hands of staff against vulnerable people with learning disabilities living at Winterbourne View, a private hospital in South Gloucestershire.
Through its delivery plan Building the Right Support, the programme pledged to close half of inpatient beds for people with learning disabilites and invest the money into opening new community services.
The CQC then developed its own guidelines based on the Transforming Care principles called Registering the Right Support.
However, nursing chiefs have previously raised concerns with Nursing Times that progress on this agenda has been too slow, made worse by the shortage of learning disability nurses.
These doubts were further fired up after a similar scandal to Winterbourne View was uncovered earlier this year at Whorlton Hall, a privately-run NHS-funded unit with 17 beds in County Durham, where residents with learning disabilities were secretly filmed by a journalist being intimidated and taunted by staff.