Peek v GSCC [2010] UKFTT 497 (HESC) (29 October 2010)

In the First-tier Tribunal

Between:

BEVERLEY JOY PEEK

Applicant

General Social Care Council

Respondent

[2010] 1753.SW

DECISION

Before:

Ms Liz Goldthorpe, Tribunal Judge

Mr Brian Cairns (Specialist member)

Mrs Denise Rabbetts (Specialist member)

Heard on 5^th October 2010 at Southampton SSCSA

Attendance and Representation

Miss Peek attended the hearing and represented herself. She was supported by Miss Suttle, her former line manager at Hampshire County Council.

Miss Julia Faure-Walker of Counsel , instructed by the General Social Care Council (‘GSCC’), represented the Respondents.

APPEAL

1. Miss Peek, (the Applicant) was registered as a Social Worker in July 2005 and her registration expired in 2008. She applied for renewal of registration as a social worker on 2^nd September 2008. On 9^th February 2010 the General Social Care Council (“the Respondent”) referred that application to its Registration Committee.

2. On 10 March 2010 the Registration Committee refused her application. On 26^th April 2010 Miss Peek appealed under section 68 of the Care Standards Act 2000 against that decision.

Preliminary matters

3. In their Response, the Respondents submitted that this appeal had no reasonable prospect of success and therefore it should be struck out. In the alternative, the appeal should be dismissed. Counsel told us the grounds for the strike out application amounted to no more than the general grounds of opposition to the appeal set out in the Response and that it was the Respondents’ general practice to make such applications in these appeals. Counsel confirmed the Tribunal had dismissed the application.

The Law

4. By virtue of section 56 of the Care Standards Act 2000 (“the Act”) the Respondent maintains a register of social workers and section 58 allows the Respondent to grant or refuse registration to individuals who apply to be on the Register. The primary purpose of the Act, and therefore of the Tribunal, is to safeguard vulnerable members of the public. To that end, section 64(2) of the Act states that the duties of the GSCC are to promote (a) high standards of conduct and practice among social care workers; and (b) high standards in their training

5. Section 58(1) of the Care Standards Act 2000 provides that, if the Council is satisfied that the applicant is (a) of good character; (b) is physically and mentally fit to perform the whole or part of the work of persons registered in that part of the register to which his or her application relates; and (c) satisfies certain conditions, including “any requirements as to conduct and competence” which the Council may by Rules impose, it shall grant the application for registration, either unconditionally or subject to such conditions as it thinks fit. In any other case, the Council shall refuse the application.

6. Applications for inclusion on the Social Care Register are governed by The General Social Care Council (Registration of Social Workers) Rules 2008 (“the 2008 Rules”). Rule 4(3)(a) of the 2008 Rules requires an applicant for registration as a social worker to provide in connection with her application, evidence as to her

good character, as it relates to the Applicant’s fitness to practise the work expected of a social worker...
good conduct

and her physical and mental fitness to practice and competence.

Evidence of good character needs to include endorsements from an employer or, where self employed or not employed, another acceptable person.

7. Rule 7(4) states that the GSCC shall only grant an application to renew registration where it is satisfied that the individual has satisfactorily fulfilled any condition/s attached to registration and it has received satisfactory evidence of the above matters under Rule 4(3). Under Rule 14(2) where the GSCC is not minded to grant the application, it must refer it to the Registration Committee, which is an independent body composed of either 3 or 5 members, with a lay majority. One of the members has relevant experience of the applicant’s area of practice. Under Rule 19, where facts are in dispute the Registration Committee must decide the facts on the civil standard of proof, applying the balance of probabilities.

8. Rule 20(16) sets out the powers of The Registration Committee, which are either to grant or to refuse the application for registration or impose conditions on the registration for a specified period. In exercising its powers the committee has a duty under Rule 20(19) to act in accordance with the principle of proportionality.

9. The GSCC also provides a Code of Practice for its members, which it must take into account when making decisions on what social workers must comply with. This sets out the conduct expected of social care workers by reference to a number of principles. Rule 5 states that ’As a social worker, you must uphold public trust and confidence in social care services’. Part 2 of the code states that: “As a social care worker you must strive to establish and maintain the trust and confidence of service users and carers. This includes:

2.1 Being honest and trustworthy

2.2 Communicating in an appropriate, open, accurate and straightforward way.”

10. Section 68 of the Act provides that an appeal against a relevant decision of the Respondents lies to the Tribunal. On appeal, the Tribunal has power to confirm the decision of the Respondent or to direct that it shall not have effect. It also has power to vary, remove or impose any condition upon the Applicant’s registration as it sees fit. This confers a wide jurisdiction and permits this tribunal either to reconsider afresh matters previously adjudicated upon by the Respondents or, in appropriate cases, to restrict itself simply to reviewing the original decision, in the usual way, that is, by means of a re-hearing.

The burden and standard of proof

11. The onus is on the Applicant to prove her competence and good character (Jones v Commission for Social Care Inspection [2004] EWCA Civ 1713; and CR -v- General Social Care Council [2006] 0626. SW. It is her responsibility to demonstrate that she is suitable for registration. The standard of proof is the civil standard, namely the balance of probabilities.

12. However, the Tribunal takes an inquisitorial, or investigatory, approach, rather than a strictly adversarial one, to the hearing of appeals in this jurisdiction, which is reinforced in its procedural rules. That approach reflects the observations on the burden of proof made in Kerr v Department for Social Development [2004] UKHL 23; [2004] 1 WLR 1372. In essence, this is a fact gathering exercise governed by equitable principles and by the overriding objective set out in Rule 2 of the Health, Education and Social Care Chamber Rules 2008 (the ‘2008 Rules’), which states:

(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes—

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(d) using any special expertise of the Tribunal effectively; and

(e) avoiding delay, so far as compatible with proper consideration of the issues.

(3) The Tribunal must seek to give effect to the overriding objective when it—

(a) exercises any power under these Rules; or

(b) interprets any rule or practice direction.

(4) Parties must—

(a) help the Tribunal to further the overriding objective; and

(b) co-operate with the Tribunal generally.

13. Therefore, the general principle is that each party must provide sufficient evidence to support their case, but where relevant information is available to the Respondents, an organisation with far greater resources than the Appellant, it is for the Respondents to produce that information.

BACKGROUND

14. The Applicant was born on 31^st July 1960. She qualified as a Social Worker in June 2002 and in November 2002 she was appointed to a temporary post as a social worker in the adult team at Southampton City Council (‘Southampton’). In March 2003 Southampton appointed her to a full time permanent post as a qualified Care Manager. She obtained a Post Qualifying Certificate in Social Work in 2006. She has worked for Hampshire County Council (‘Hampshire’) since her dismissal from Southampton in 2008 but, as a result of the removal of her registration, she has been downgraded to a non-social worker post and is now on a temporary contract pending the outcome of this appeal.

15. In 2004 the Applicant was charged with offences of benefit fraud following her failure to notify the Benefit Agency of a change in her circumstances, i.e. that she was working whilst claiming benefit. She was given a formal written warning by Southampton after a disciplinary hearing and the notification letter dated 20^th July made it clear the warning was to remain on file “permanently, further stating, “any future gross misconduct would almost certainly lead to …dismissal.”

16. Miss Peek applied for registration as a social worker in October 2004. She declared the final written warning from Southampton in compliance with the requirements in the application form agreeing to tell the Respondents about any convictions or disciplinary action taken against her. The form was endorsed by her Team Manager, Mr Biddle, and Ms Cox, a Southampton Human Resources manager, also endorsed the application. The latter stated the conviction had been considered in detail and it was felt “the mitigating circumstances were such that dismissal was inappropriate.”.

17. On 3^rd December 2004 the Applicant was convicted for two offences of benefit fraud, for which she received two concurrent Community Punishment Orders of 180 hours each. Southampton later said Miss Peek had been given a second chance, as the offence was not related to her position as a social worker, but it was on condition that Miss Peek always acted with integrity and honesty when carrying out her duties.

18. In support of her application for registration as a social worker the Applicant explained in a letter to the Respondents dated 6^th July 2005 that this offence had arisen in the context of a prolonged period of domestic violence from 1992 to 2001, during which she had had to move house 9 times. On her appointment to the Southampton post there had been further harassment from her ex partner necessitating another move at a time when there was no guarantee her employment with Southampton would become permanent. She blamed fear for “a stupid mistake” and said her managerial colleagues had provided glowing testimonials for the court proceedings. She said thereafter she had worked alongside the Benefits Agency in cases of suspected fraud. Southampton had not only appointed her to a permanent post but had also encouraged her to apply for promotion. She had continued to work for the charity with which she had done her community service. She expressed her deep remorse and stated categorically she would never commit any offence again. On 28^th July 2005, the Respondents duly granted Miss Peek registration as a social worker for the usual period of 3 years.

19. Miss Peek worked as the only qualified social worker in a team of 18 staff in a new initiative, the Contact Centre, which was responsible for delivering a care management service to adults and their carers. This included carrying out assessments and ensuring service users received a care package or placement appropriate to their needs. Mr Biddle initially supervised her work and his appraisal commented very positively on her high level of work, and her support for other members of her team. He also referred to her “high volume” of casework.

20. In February 2006 the Applicant was the investigating officer in an adult protection investigation into allegations of abuse of Ms X, a vulnerable adult living in a residential home. Ms Plumbly chaired the Adult Protection strategy meeting that was also attended by Miss Peek. Miss Peek made an assessment of Ms X’s mental capacity and deemed her to have sufficient capacity to understand the incident and the resulting investigation.

21. Following Mr Biddle’s promotion in 2006, Miss Peek’s supervision became the responsibility of the newly appointed Team Manager, Ms Plumbly.

22. In May 2007 Miss Peek lodged a grievance against Ms Plumbly and thereafter was on sick leave until June 2007. On her return she requested a note taker be present at future supervision meetings as she felt her supervisor was recording things negatively. Ms Blackmore, Senior Practitioner, was supervising Miss Peek by this stage and during a supervision meeting on 28^th March 2007 she had raised concerns about the quality and level of Miss Peek’s casework recording. This was the first time shortfalls in recording practice had been raised with her. In a further meeting in May 2007 Ms Blackmore warned her that if her practice in this area did not improve she would be subject to a capability procedure.

23. In January 2008 there was a second investigation into further allegations of abuse of Ms X. The Applicant determined on this occasion that Ms X lacked capacity to understand the decision to consent to an investigation. During the investigation Southampton discovered some alleged shortcomings in the Applicant’s handling of matters relating to Ms X, including a lack of recorded contact with Ms X’s mother, inappropriate comments of an unrelated personal nature in an email to a colleague, inadequate recording of information or action on files and a failure to respond adequately to correspondence from a colleague.

24. Thereafter, the Applicant’s Team Manager and supervisor, Ms Plumbly, conducted a disciplinary investigation on behalf of Southampton into allegations against Miss Peek of two breaches of the authority’s Code of Conduct and Disciplinary Rules and three breaches of the GSCC Code of Practice. These were focused largely on the 2006 and 2008 adult protection issues regarding Ms X and concerned allegations including failures to follow published team procedures for the management of adult protection cases in the Contact Centre, or to follow management instruction and advice regarding recording practice.

25. Ms Plumbly’s report of 18^th April 2008 alleged, for example, that Miss Peek’s assessment of Ms X’s mental capacity in 2006 was flawed, that she had failed to share information with Ms X’s mother in 2006 and 2008, had closed the case inappropriately, had failed to record salient matters either fully or at all, had brought the authority into disrepute in particular by the sending of the inappropriate email and in failing to share information with Ms X’s mother, had failed to take account of relevant information likely to impact on the protection plan instigated for the vulnerable adult in question. The investigation report also raised concerns that mitigating evidence produced by Miss Peek was not accurate and concluded that there was evidence of deficits in her practice.

26. A disciplinary hearing was held in July 2008, chaired by Mrs Brentor, the Head of Health and Community Care, to consider allegations of misconduct and possible gross misconduct, namely:

i) failure to follow a management instruction and advice regarding recording practice.

ii) Conducting herself in a manner which brought Southampton into disrepute

iii) Inadequate social work practice in the preparation and assessment carried out in relation to an adult protection investigation in 2006

iv) Inadequate recording of actions in relation to a Safeguarding Adult referral in 2008

v) Failure to follow published team procedures for the management of Adult Protection cases in the Contact Centre.

27. Miss Peek was represented by Mr Biddle, her former Team Manager, but was dismissed with notice. The circumstances and findings were set out in the dismissal letter, which stated that the allegation about bringing the service into disrepute was not proven and was not considered to be gross misconduct. The allegation about inadequate social work practice was also found not proven. However, the letter included the statement that one of the proven misconducts “verged on” gross misconduct. The letter did not specify which of the 3 allegations fell into this category but did make it clear Southampton had chosen to exercise the terms of the earlier formal warning. Mrs Brentor stated she had had “no hesitation” in taking the previous final written warning into account.

28. On 11^th August, in compliance with its duties under the GSCC Code of Practice for Employers of Social Care Workers, Southampton notified the GSCC it had dismissed the Applicant with effect from 2^nd July 2008. Southampton confirmed this was for three proven allegations of misconduct and took account of the final written warning in 2004.

29. Miss Peek appealed against dismissal and was represented by a Unison officer at the hearing held by Southampton in October 2008. The Applicant admitted some failures in recording but contended some of the allegations were unfounded and her previous work record showed she should not have been dismissed: there had been subsequent improvements in her practice by August but management had ignored her complaints about her caseload. She also alleged the involvement of her line manager was a breach of disciplinary procedures. In addition, she contended Southampton should have ignored the 2004 warning because it concerned a separate issue of dishonesty rather than capability.

30. Mrs Brentor refuted the procedural issues and said she considered it was appropriate for Ms Plumbly to have conducted the disciplinary investigation even though she had information herself that was relevant to that investigation. Mrs Brentor reiterated concerns about the Applicant’s honesty and her admissions about the inappropriate email and her failures to record information. Mrs Brentor referred to the generally positive content of the appraisal and supervision notes but relied on the issues raised about Miss Peek’s accuracy in recording, stating that “since 2004 [she] had been given a number of instructions as part of supervision to improve her recording.” She stated that “although the breaches of the disciplinary code of conduct in this instance are not considered to be gross misconduct and were unrelated to her previous disciplinary offence the next level of sanction in this instance is dismissal with notice.” The Panel upheld the original decision to dismiss with notice, expressing itself satisfied that “misconduct has been proven…and there was no longer the trust and confidence in her ability to do her job” .

31. On 2^nd September 2008 she applied for renewal of her registration as a social worker as she was due to start work for Hampshire on 15^th September. Two Southampton colleagues, her former training co-ordinator and her former team colleague, a Care Manager, endorsed the application. On the form the Applicant stated she was not the subject of any current disciplinary findings or investigation, nor were there any new convictions or pending charges (including motoring offences). But in a separate letter to the Respondents dated 8^th September she stated she had experienced difficulty in obtaining endorsement by Southampton because she was appealing against her dismissal by that authority.

32. In late 2008 Hampshire County Council (‘Hampshire’) appointed The Applicant as a social worker on a temporary contract in full knowledge of her history including the circumstances of the disciplinary proceedings in Southampton.

33. On 10^th October and 15^th December 2008 respectively, the Applicant requested updates on the progress of her renewal application. By this stage the Respondents had already started preliminary enquiries into Southampton’s complaint and the circumstances of her dismissal. This matter would have fallen to be considered under the separate process governed by the Conduct Rules, under which complaints about a social worker’s conduct are referred to the Respondents’ Conduct Committee. On 16^th December 2008 the Respondents referred her registration application to its Conduct Administration Team.

34. However, some months later, in July 2009 the Respondents decided that the Applicant’s suitability to remain on the register would be most appropriately assessed under the 2008 Registration Rules. It appeared that the Respondents had taken this decision because there was an application to renew registration. The process therefore became solely a matter of registration, not misconduct, although Mr Darville, a Conduct Officer, was the allocated responsible officer. The Applicant replied to the Respondents’ bundle of documents on 3^rd August 2009 and in a letter received by the Respondents on 18^th August 2009 she gave details of her dismissal from Southampton and set out what she saw as the relevant mitigating circumstances.

35. Hampshire made the Applicant a permanent member of its qualified social work staff in September 2009.

36. On 17^th September 2009 the Applicant was convicted at a Magistrates Court in her absence for the offence of failing to provide the logbook for a car she had briefly purchased. The circumstances of this offence arose when, on 31^st December 2008 the Applicant and her partner had bought a new car, which was returned to the garage within a matter of days, together with the registration documents, and replaced with another model. In 2009 the DVLA contacted the Applicant stating that she had failed to send to the Secretary of State the relevant part of a registration document, i.e. notification of the transfer of ownership of a car in accordance with the relevant statute. She referred the DVLA to the garage and says she heard nothing further from them. The Memorandum of Conviction noted that no plea had been entered. A fine of £175 was imposed for this offence.

37. In the course of its enquiries relating to Miss Peek’s application for renewal of registration, the GSCC received information about the conviction relating to the car. It sent the Applicant a package of documents on 25^th November 2009, inviting responses by 22^nd December. Her partner signed for the package but the GSCC received no response from Miss Peek.

38. On 29^th December 2009 Miss Peek again requested an update on progress. In response she received an email from Mr Darville the GSCC Conduct Officer on 8^th January confirming that the investigating officer had presented her report and recommendation to him on 6^th January and he hoped to make a decision that day. However, on 12^th January he confirmed by email that, as discussed on the telephone with her earlier that day, he had advised her she had not replied to the further bundle of papers sent on 25^th November and needed to do so quickly.

39. On 9^th February 2010 the GSCC notified Miss Peek that it intended to refer the matter to the Registration Committee in accordance with Rule 14 of the 2008 Rules and she was advised of her right to make oral submissions. On 24^th February she sent written representations.

40. On 14^th February 2010 the Conduct Administration Team referred Miss Peek’s application to the Registration Committee. On 24^th February 2010 the Registration Committee decided to remove her from the register, stating that….

The Registration Committee’s decision

41. The Respondents refused Miss Peek’s application to renew her registration on the basis that she had not paid sufficient regard to her professional responsibilities. The Registration Committee said it had taken into account the “impressive” testimonials she had supplied, which included letters from staff at Hampshire County Council in support of her application, but it was not satisfied she had discharged the obligation on her to provide sufficient evidence of her good character, noting her:

i) Conviction in 2004 for two offences of dishonesty (benefit fraud)

ii) Dismissal for misconduct in 2008 by Southampton City Council,

iii) Failure in September 2009 to declare her conviction for failing to send vehicle registration documents to the relevant authority, in breach of the declaration on her application form for renewal of registration as a social worker, and in breach of the relevant Code of Practice.

42. In its decision letter the Committee said it had been “particularly concerned” by the failure to declare the 2009 conviction. It did not accept the explanation for this or her reasons for the delay in responding to the GSCC, which it treated as a further example of the deficiency of her approach to her responsibilities to her professional body. Furthermore, it considered the findings of the Southampton disciplinary process as “further evidence of deficiencies in the Applicant’s approach to her professional responsibilities”, and regarded it as just and proportionate to have regard to the 2004 convictions when considering the application for renewal. It concluded that “given the serious nature of the 2004 offences, the findings of misconduct and subsequent dismissal by Southampton City Council, and the Committee’s findings that the Applicant had been deficient in her approach to her professional responsibilities, [she] had not satisfied the Committee that she was of sufficiently good character and conduct that she should be registered.”

43. Following that decision, Miss Peek’s employers, Hampshire County Council downgraded her to a temporary Care Manager post.

44. On 15^th July 2010 Tribunal Judge Nancy Hillier gave directions for witness statements from the Applicant by 6^th September, and any evidence in response by 13^th September. On 23^rd July the Applicant responded to the strike out application and on 28^th August 2010 she sent further documentation in support of her appeal, including a chronology of events, a witness statement and testimonials, all received subsequently by the Respondents.

Evidence

45. The Tribunal considered the written evidence contained in the bundle, which included the documentation prepared and submitted to the original Registration Committee, the decision of that Committee, the Tribunal appeal paperwork and a preliminary statement from the Applicant.

46. Character references from the Applicant’s Hampshire colleagues included three from, respectively, a Senior Practitioner responsible for supervising Miss Peek since October 2009, a District Service Manager who has known the Applicant since 1^st April 2009 and was aware of the previous safeguarding concerns, and the Applicant’s current Team Manager. These variously described the Applicant as open from the outset about her dismissal and her past mistakes, sound and reflective in her performance and practice, and receptive to feedback. She was timely, accurate, thorough and detailed in her recording, which was of a high standard. Responsible for a full caseload of complex work, she was regarded as vigilant, able, hardworking, with a wealth of knowledge. She was described as an asset to her team and sought out by unqualified staff for advice and support. She had volunteered for additional duty on a number of major safeguarding investigations in the past year, had undertaken several meetings and courses to update her practice. She had also been praised for her handling of student supervision.

47. Ms Suttle was part of the Hampshire management team that originally agreed to employ the Applicant. She stated in writing that she had been impressed with Miss Peek’s ability and honesty and noted she had conducted herself over the past year in an exemplary fashion. Ms Suttle regarded her as a good social worker who would be a loss to the profession. She had no reservations about the Applicant’s integrity, honesty, values or professional ability. She had also praised Miss Peek for her “outstanding” safeguarding reports, stating she had been specifically requested to help in producing a flowchart for the adults safeguarding process.

48. In her witness statement, the Applicant reiterated the circumstances leading to the benefit offence. She referred to the severe threats from her ex partner, his destruction of her property and his harassment of her daughter at school necessitating a change of residence and schools. His behaviour had caused her extreme distress and anxiety and, unable to ask for help from her new colleagues, she had committed the fraud without thinking of the consequences. Southampton had admonished her with a pay freeze for 2 years in addition to the final written warning and had reported the matter to the GSCC. She said she had used this experience productively: she had reported a case of benefit fraud and had gained an awareness of support for victims of domestic violence.

49. The Applicant denied there had been any misconduct following the events in 2004. She had been open in not disputing some failures in recording practice whilst at Southampton, but said she had found the pressure of work overwhelming. Confirming the contents of her letter to the Respondents in August 2009, the Applicant explained the circumstances at the Contact Centre at the time of the adult protection investigation. Her manager and the senior practitioner were both new to the team, and Ms Plumbly, the manager, had introduced or amended relevant procedures and processes as many as 5 times over a period of 11 months. The Applicant and a colleague had taken out a grievance against the Team Manager and her period of sick leave was due to stress. The manager had subsequently been downgraded to Senior Practitioner status and had left.

50. The Applicant said she had accepted Southampton could not treat her failures as a practice issue and had no choice but to dismiss her given there was a final written warning on her file. In her Grounds of Appeal she conceded she was aware her 2004 convictions could be taken into account in future applications for renewal of her registration. However, she contended that at the time of applying for renewal she had not been convicted of the offence in September 2009.

51. In an email dated 14^th January 2010 to the Respondents, the Applicant explained the delay in dealing with the package from them was due to extensive building work at her home and the failure of her current partner to pass the package on to her because they were not on speaking terms. She later explained she was not living at the premises and her partner had signed for the package but had not passed it on to her because of what she described as a childish dispute about the building work he was carrying out.

52. In the same email she explained the vehicle offence had arisen when her partner had bought her a new car, which after 3 days they decided not to keep. The vehicle was returned to the dealers together with the relevant documentation. When contacted subsequently by the DVLA she had told them she had never become the owner and referred them to the dealers. She had heard nothing further and was convicted in her absence. She did not consider she had broken the law, having relied on the garage’s assurances that it would deal with the logbook and thinking that was the end of the matter. The garage had subsequently closed down and there was little she could do but pay the fine. She was not aware this amounted to a conviction and had treated it as equivalent to a parking ticket. She had given it no further thought until contacted by the Respondents.

53. The Applicant relied on the Hampshire references in support of her contention there had been great improvements in her practice, including work plans and a daily précis of cases. She asserted that her conduct since 2004 had been exemplary and she had striven to work in an effective and efficient manner with a commitment to the Codes and to social work values. Her motoring offence and her failure to respond to the package were understandable human shortcomings and not deliberate acts and bore no influence on her work. She was sorry for these failures and “mindful now to be as vigilant with [her] personal affairs as she was with [her] professional practices.” She was regarded as a valued member of her team and proud of the way in which she conducted herself. She described herself as distraught at being unable to call herself a social worker, and said the consequences of loss of registration were that there was a real possibility of losing her job as this was a temporary post vulnerable to budget cuts. She would also lose the opportunity to supervise students and have severely restricted opportunities for further promotion. She spoke enthusiastically and knowledgeably about the improvements in assessment of capacity brought about by the Mental Capacity Act 2007.

SUBMISSIONS

54. The Respondents submitted that the Applicant’s behaviour since her registration in July 2005 demonstrated a pattern of breaches of the Code of Practice that called into question her good character, relying on

i) the “very serious” convictions in 2004 for benefit fraud occurring over a period of months and resulting in an overpayment of £12,500, (to which it decided it was just and proportionate to have regard in all the circumstances given her conduct since her registration)

ii) the summary of failings in the Applicant’s recording of her work dating back to January 2007 (p 203)

iii) the summary of her failure to follow Care Management Processes dating back to February 2007 (p 205)

iv) the findings of the disciplinary hearing of Southampton City Council (pp 63 – 66) as upheld by the Appeals Panel (pp 87 to 94)

v) the conviction of 17^th September 2009 and her failure to declare this

55. Ms Faure-Walker said the consequences of the serious conviction for benefit fraud were clear to the Applicant in that there was a risk of this being taken into consideration in future: she could have been under no illusion she needed to be very careful. Despite this, she was warned during supervision about the quality of her recording practice and was dismissed thereafter for issues that included this and following disciplinary proceedings that, as she must have anticipated, took account of the previous written warning. Ms Faure-Walker asserted it was possible to infer from the Southampton documentation that the proven misconduct leading to dismissal focused on the Applicant’s actions in bringing the service into disrepute.

56. The issues explored during the disciplinary proceedings amounted to a pattern of conduct involving more than one incident and resulted in clear findings in July 2008. Thereafter, the Applicant had failed to declare those findings to the Respondents: her explanation for this showed she had not taken adequate care to read the form or to be truthful in her answers.

57. The Respondents accepted the 2009 offence was not serious, even though it involved documentation. But the Applicant was clearly required to declare the conviction and fine in September 2009 on her renewal form in compliance with the expectation in section 2(c) referring to all motoring offences, and the declaration at the end of the form for all convictions.

58. The conduct was compounded by her failure to respond to the documentation in November 2009. Although her explanations for this were rooted in the same circumstances, this did not entirely explain why she had not met the subsequent deadline of 22^nd December 2009.

59. In summary, the Applicant had demonstrated a pattern of behaviour that brought into question her good character. On the balance of probabilities she had failed to establish that she met the necessary requirements of conduct and good character to show that her registration should be renewed.

60. The Applicant strongly refuted this, stating there was no such pattern discernible in her conduct since 2004 and nothing similar to the dishonesty involved in the benefit fraud. She maintained to us that she had been open and honest about her convictions throughout. She had been deeply ashamed of the conviction for benefit fraud, but it had not prevented her registration as a social worker and Southampton had agreed it did not affect her work. Thereafter she had been open about failures in recording, which were largely due to confusions in work practices, her workload and her status in the team. But in reality the events of 2004 had dogged her career. This was despite the fact she had been open and honest with Hampshire, where she was well supported, worked in a structured, less pressured environment and had used her past experiences to inform her practice. She relied on the examples of her work to show that the previous practice issues had been addressed in Hampshire, where recording systems were much easier to follow and supervision systems used audits, random sampling of cases and quality checking of data errors.

61. She told us she had been confused about the registration form and the meaning of ‘current’ disciplinary investigations, findings and sanctions. She was aware motoring offences needed to be declared but the registration form had not been submitted at the time when the Respondents notified her of the conviction in a telephone call. She had paid the fine, the conviction had not resulted in any benefit to her, indeed it had proved a very costly mistake.

62. She said she loved her job, benefited from proper supervision and supportive colleagues and wished to continue working effectively with service users, supervising students and pursuing a number of projects within care homes, all of which were dependent on the outcome of this appeal.

TRIBUNAL’S CONCLUSIONS WITH REASONS

63. We note that from 2004 to early 2008 the issues of competence and good character included issues of misconduct that did not prevent the Respondents from registering the Applicant as a social worker. Nor did these prevent her employment by Southampton ultimately on a permanent basis. The sole outcome of her conviction for benefit fraud was the final written warning about her future conduct.

64. The Applicant was measured and fair in her evidence about the practice issues on recording that had arisen at Southampton. Nevertheless, it is important to set this in the context of the working environment she found herself in as the only qualified member of staff in the team. We gained the impression of a large and overwhelming caseload in a chaotic and unworkable setting where there were unclear procedures and the expectation of a quick throughput. This workload would have severely challenged the capacity of even a very experienced social worker to record absolutely everything that was happening in every case.

65. Nevertheless, the Applicant’s recording practice does not appear to have changed a great deal up to 2007, nor was the issue raised in supervision. What did change was management’s approach to her, as shown when Ms Blackmore picked the issue up in supervision in March 2007. The reason for that change is a matter of pure speculation, but may have been due as much to an initial inability to adapt to changed systems of recording as it was to a change of manager. But regardless of the reasons, even if there were shortcomings we cannot see that the facts as presented would normally have merited anything other than a verbal warning. Examination of the documentation shows that the recording issues were not hugely serious.

66. We are at a loss to understand how the issues amounted to a justification of anything approaching gross misconduct. Even the offending email made no reference to the Applicant’s employer, did not discuss service users or colleagues, but was just a very unfortunate social reference. In the absence of any other investigation it would undoubtedly have been raised but the contents certainly did not amount to bringing the service into disrepute. Indeed, Southampton’s handling of the disciplinary process appears to have given this view some credence, whilst at the same time continuing to hark back to its preliminary accusation.

67. Southampton appears to have created a difficulty in the way it had originally chosen to deal with the benefit fraud. It is clear to us that if it had not been for the terms of the final written warning and the way this was used in the subsequent disciplinary proceedings, it is unlikely that any of the rest of the matters that came before the Respondents’ Registration Committee would have come near to justifying de-registration or refusal to register. It is also clear that neither Southampton nor the Respondents succeeded in identifying gross misconduct in any event after 2004.

68. As far as the recording shortfalls are concerned, none of these put at risk or caused harm to any service user. None of the shortfalls amounted to a deception of any kind. We also note that Ms X’s mother had a closed meeting with one Southampton manager, which was not minuted, and thereafter she did not take her complaint any further. In fact, the circumstances of this complaint are open to interpretation since they concern the assessment of capacity of an adult and difficult issues of client confidentiality as against the need of parents of vulnerable adults to know information about their adult children. The Applicant gave entirely plausible explanations for both events and we gained the impression she has a robust understanding of an individual’s rights. In our view her approach was to maintain the privacy rights of an adult individual, whilst bearing in mind the issue of mental capacity at any given time.

69. We have some concerns about the way in which the disciplinary process at Southampton was conducted. We would sincerely hope that the processes have now changed and that, in particular it has been recognised that it is inappropriate for a casework manager and supervisor, who is also the subject of a grievance within the previous 12 months to be responsible for investigating a complaint against that member of staff and to be regarded as a suitable person to conduct a disciplinary investigation against that person. Furthermore, although Southampton’s disciplinary procedures at the relevant time were not available to us, there appears to have been something of a miasma around the meaning of “verging on” and what actually amounted to gross misconduct. However, we also note that the Applicant was scrupulously professional in her attitude to her former employers and to the individuals who had breached these basic principles.

70. We were impressed by the Applicant’s evident honesty and self-criticism. She gave us the impression of someone with a combination of naivety and common sense who has realised through challenging experiences that she must follow procedures rigorously. She has clearly learned a great deal in the period since 2008 and in a different professional setting has shown her worth as evidenced by the trust and confidence of her current employers.

71. We have taken into account a number of aspects of her conduct that have clearly caused concern. Her completion of the application form for re-registration Form was clearly wrong and she should have known what to declare, namely that there had been disciplinary proceedings and findings against her and the reasons why she was unemployed, ie that she had been dismissed. Nevertheless, there is a measure of mitigation in the supporting letter she wrote, albeit that she should have known this was a completely different document and an inadequate substitute for the form itself, particularly as it did not include the full information. She may have thought the form did not cover the situation she was in and we are mindful of her background when judging her explanations for her confusion: this would not necessarily have equipped her to deal with an evident difficulty in distinguishing the subtleties of words. It is obvious that she has now learnt to do this the hard way.

72. We do not regard the motoring offence as in the same category as any of the other matters at all. We believe her response was entirely understandable since most people would send their paperwork back to the garage in such circumstances. We do not believe the public’s confidence in the social work profession would be undermined by such behaviour. Motoring offences fall into two separate categories, the first of which includes minor offences that receive fixed penalties (parking, speeding etc). It is not usual to inform an employer about these, let alone the Respondents. We have attached no weight whatsoever to this offence and are at a loss to understand why the Respondents should have placed such weight upon it in their decision-making process. To do so gives the impression of just adding evidence to bolster their case. The Respondents produced no evidence about the prosecution or the proceedings to refute the Applicant’s version of events, so we have accepted her account of the circumstances that led to this conviction, including the lack of further contact with the DVLA.

73. We also found the Applicant’s account of the delay in dealing with the package from the Respondents entirely believable. Contrary to the Respondents’ assertions, the Applicant ‘s account dealt with different aspects of the same event, not a different account on separate occasions. Her description of the behaviour of herself and her partner as childish was an admission that lent credibility to this.

74. The Code of Conduct sets a necessarily high standard for registered social workers, especially in respect of honesty and openness. These are essential attributes for those who work with the most vulnerable members of society. But to accept the Respondents’ view of the Applicant’s conduct and character would be to endorse an unrealistic counsel of perfection.

75. There was no pattern of behaviour as alleged by the Respondents. This implies a similarity in approach or in events but in reality, the fraud in 2004 was followed by practice issues in 2007 that did not amount to gross misconduct. This was followed thereafter by comparatively minor issues relating to her response to the process of registration and to this appeal, none of which are sufficiently serious to be treated as falling within the same category as the original offence.

76. We have also taken into account the undeniably excellent references and note that none of the referees considered the Applicant to be anything other than of good character and exemplary conduct. They were very clear in their praise of her openness and her standards of good practice. Hampshire have, quite properly in the circumstances, closely monitored her performance and, as confirmed by her District Service Manager, she has met all the expectations set in her Individual Performance Plan. Clearly none of them had any concerns about her work or about supporting her application for renewal or her appeal and believed there was no danger of any re-occurrence of past events.

77. Both Southampton and the Respondents’ Registration Committee placed great emphasis upon the Applicant’s 2004 conviction for benefit fraud. There are two other notable cases of benefit fraud both of which involved very serious matters that are worth comparing when considering this case. In Mnene [2007] the Appellant was guilty of substantial and recent fraud that also involved false documentation including false references and an inaccurate employment history, deceit of her employer, dismissal for dishonesty and a term of imprisonment. In Andrews [2009] the Appellant was guilty of retaining £25,000 of direct payments whilst working for Essex County Council and providing false receipts in what amounted to a sophisticated and detailed fraud for which a term of 15 months imprisonment was imposed. In both cases the GSCC referred the matters to its Conduct Committee and in both cases the tribunal had no hesitation in upholding the Committee’s decision.

78. We have looked at the Applicant’s performance in the round, and have taken into account both the various errors and failings identified and any mitigating factors, as well as any evidence to show that she has addressed or plans to address any admitted deficiencies. We have concluded that the evidence shows she has worked hard to establish her suitability as a social worker in the face of great challenge and some mistakes. It is to her credit that she has been so successful in Hampshire and has continued to strive to improve her practice through training and personal initiative.

79. We stress that this appeal focused on matters related to registration and did not involve any issue of misconduct. Nevertheless, the Applicant must have felt throughout that it was anything but straightforward, and that everything flowed from, and was a consequence of, the original conviction for benefit fraud. She was certainly dishonest in respect of that offence in 2004, but there was absolutely no evidence to suggest any repetition of dishonesty and nothing she had done subsequently indicated a pattern of behaviour. We have no hesitation in concluding that she has satisfied us as to her suitability to be registered as a social worker.

80. Finally, we note the application for a strike out in this case – any regulatory organisation that takes the view it is appropriate to apply routinely for this draconian measure in most appeals, regardless of the merits of the case, could be said to have a particularly high handed attitude to its functions. At the very least it seems to point to a rather blunt approach to the appeal process that smacks of an unnecessarily dismissive view. It is also one that takes no account of the vastly different nature of each individual case and one that quite unnecessarily wastes public resources in the form of judicial and administrative time and must cause perfectly legitimate applicants unnecessary distress, inconvenience and expense.

DECISION

It is our unanimous decision that the appeal should be upheld. The decision of 10^th March 2010 is set aside.

Liz Goldthorpe, Tribunal Judge

Brian Cairns, Specialist Member

Denise Rabbetts, Specialist Member

October 2010