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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.

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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,

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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

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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

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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.

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