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March 10, 2014

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Failings within care homes set precedents for sentencing charities


Local Authority Solicitor, Paul Rushworth looks at recent Crown Court cases brought by District Councils involving the fatality of residents in care homes and discusses the approach the Courts will take when sentencing charities.
Two recent Court decisions illustrate the increasing problem of safeguarding the health and safety of an ageing population and the Court’s approach to challenging sentencing exercises. R (South Kesteven District Council) v Orders of St John Care Trust Limited and R (South Staffordshire District Council) v Abele View Limited were unrelated cases but sentenced less than two months apart and based on remarkably similar facts. 
Both cases involved the fatality of elderly vulnerable residents who left residential care homes, at night, in sub zero temperatures and were found in the grounds of the care homes the following morning. The defendant in the former case was a not for profit charitable trust whilst Abele View Care home was a 100% for profit business.
In the case brought by South Kesteven, Lincoln Crown Court handed down sentence on the 2ndJanuary 2014. The defendant pleaded guilty to S3(1) of the Health and Safety at Work etc Act 1974.  On the 26th November 2009, during a staff shift change, the resident left the home and went into the grounds. There were no or insufficient checks by either the outgoing or incoming shifts. 
Ultimately there was a void in which the resident was not cared for at all. The resident was found in the early hours of the following morning lying face down in a hypothermic state. She was transferred to hospital where some weeks later she later died. 
An investigation by the District Council’s Environmental Health team discovered that the failings by staff on the evening of the incident reflected wider corporate, systemic and procedural health and safety failings.
The defendant asked the court to consider that any significant fine would affect the trust’s ability to carry out its charitable objectives of relief of the aged, the infirm and the sick — an understandable point. In Milford Haven Port Authority [2000] 2 Cr App R(S) 423 Lord Bingham said, “The Judge has to consider how any financial penalty will be paid. If a very substantial financial penalty will inhibit the proper performance by a statutory body of the public function that it has been set up to perform, that is not something to be disregarded.” This approach applies to charities too.
The significance of “not for profit” status was considered again by the Court of Appeal in the case of R v Guy’s and St Thomas Hospital Trust [2009] 1 Cr App R(S) 104 when it was stated, “The Court accepted that as a matter of principle, where a-not-for-profit organisation existed to carry out work for the public benefit and a failing occurred without actual fault on the part of that body, but through an act or default of an employee to whom the task had been properly delegated and who had been properly trained, the Court ought not to punish such a body by the imposition of a financial penalty which would materially impact on its ability to discharge its public duty.” 
In the Orders of St John case, the Trust accounts revealed a healthy balance sheet with significant turnover. The trust argued that despite the turnover and surpluses, the cash available was restricted and tied up in the trust’s future projects.
The role of the prosecutor is to ensure that the Court proceeds on a fair understanding of the financial background and both sides lodged detailed written submissions intended to convey their view of the finances.
The Judge fined the Trust £140,000 with costs of £65,000. The decision indicates that the Courts will not be slow to hand down significant financial penalties in circumstances where the defendant is a not for profit charity if the circumstances warrant it. 
The case also illustrates the importance of a critical appraisal of the financial circumstances of charities in cases where the argument is, that a substantial fine will substantially affect the quality of ongoing care which they are able to provide. In an ageing population the pressures on care providers will increase and prosecutors might find themselves increasingly enforcing against defendants with charitable status. When they do so, a careful examination of the finances is wise.
In the Abele View case the Company had been emptied of all assets and income. Nevertheless the court took the view that the loss of life had to be marked and the fine of £133,000 was imposed. An interesting contrast- the penniless for profit company was fined less than the charity, despite the “discount” for its charitable status – showing the principle that each defendant will be considered individually.
Paul Rushworth is a solicitor at South Kesteven District Council. He is team leader of the Council’s legal section which includes the Council’s litigation team. Paul is the Secretary of the East Midlands branch of Lawyers in Local Government the successor to Solicitors in Local Government.  

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