[2009] UKFTT 213 (HESC)
DECISION

IN THE FIRST-TIER TRIBUNAL (HEALTH, EDUCATION AND SOCIAL CARE)

BETWEEN:

ELENI CORDINGLEY
Appellant

-and-

THE CARE COUNCIL FOR WALES
Respondent

Appeal No [2009] 1464 SCW

On 25 and 26 August at the Civil Hearing Centre, Cardiff

BEFORE

Mr I Robertson (Nominated Tribunal Judge)
Mrs Margaret Williams (Specialist member)
Mr David Cook (Specialist member)

REPRESENTATION

Ms Sue Sleeman (Counsel) Appeared on behalf of the Appellant

Mr G Miles (Solicitor) Appeared on behalf of the Care Council for Wales

THE APPEAL

1.	This is an Appeal brought by Mrs Eleni Cordingley under S68 Care Standards Act 2000 against the decision of the Care Council for Wales dated 23 January 2009 to remove her name from the Register of Social Workers. 

THE LAW

2.	The Care Council for Wales has a duty under the Care Council for Wales (Conduct) Rules 2005 to consider a charge against a registered social worker to determine whether the Registered Social Worker has committed misconduct and if so what sanction, if any, should be imposed. 
 
3.	Misconduct is defined as conduct which calls into question the suitability of the social worker to remain on the register.

4.	In deciding what sanction to impose the conduct committee is required to take into account;

a)	The seriousness of the Registrant’s misconduct
b)	The protection of the public
c)	The public interest in maintaining confidence in social care services
d)	The issue of proportionality

5.	By S 68 the power of the Tribunal on appeal is to either confirm the decision or direct that it shall not have effect. It is common ground that the Tribunal have no power to substitute a different sanction to that determined by the relevant Council.
 
THE FACTUAL BACKGROUND BEHIND THE APPEAL

6.	On 5 May 2005 Aaron Gilbert aged 13 months was admitted to hospital in Swansea. He had suffered extensive head injuries. He was murdered by his mother’s boyfriend Andrew Lloyd. He is currently serving a life sentence for that murder. Aaron’s mother Rebecca Lewis was given a 6 year sentence for familial homicide for failing to prevent his death. They are the people responsible for Aaron’s death.
 
7.	Aaron was not known to Children’s Services at the point of his death. He was not on the Child Protection Register and did not have an allocated social worker. On 27 April 2005 however Social Services received an anonymous referral which was recorded in the following terms;

“Mum is seven months pregnant and is taking drugs. Mum told the neighbour that there is something wrong with the unborn and that this is due to her drug taking. Mums boyfriend also deals with drugs and has been seen out at 2am with Aaron. I advised that if she sees the child out at 2am again to call the police straight away. The neighbour also stated Aaron is always covered in bruises. When I put the caller on hold to check details she put the phone down”

8.	Swansea Social Services department introduced a new system of dealing with initial referrals in January 2005. They set up an Access and Information Team. This consisted of a Team Manager (who had additional responsibilities) a Social Worker and four unqualified Access and Information Officers. The role of the team was defined in the April 2005 Manual for staff as follows;

“ All new contacts into the department are received by the Access and Information Team, except those referred directly to the Child Disability Team at Lakeside and the Emergency Duty Team. Incoming contacts are screened by Access and Information Assistants. If they determine that a contact becomes a referral, they pass it to the Access and Information Team Manager or Social Worker who will ratify (our emphasis) the need to pass it to the Child Assessment Team for consideration  (our emphasis) for initial Assessment”

9.	The Access and Information Officers were a mix of workers with administrative experience and Social Work Assistants. There is dispute as to the level of training they received which we will consider further. The actual worker who received the anonymous referral above however had only been with the Team since March and was an agency worker apparently straight from college. 
 
10.	Mrs Cordingley was the social worker in the Team. She had 5 years post qualifying experience including Child Protection Work. The A and I officer discussed the referral with Mrs Cordingley who asked her to write it up. This verbal interchange was a critical issue that we will return to. The referral record is in the name of the unborn child and does not state Aaron’s age or date of birth. It records his surname incorrectly and as subsequently transpired recorded the wrong address. It did not record Lloyd’s surname as this was apparently unknown to the caller. The time of the referral is not recorded. The A and I officer recorded the referral under the category of Suspected abuse/neglect.

11.	Having received the written referral Mrs Cordingley decided not to refer the case to the relevant child assessment team but rather to write to the mother to invite her for interview to clarify matters first. She wrote in the following terms;

“ We have received a referral in respect of your child Aaron. I would be grateful if you could attend at Hafan Plentyn on 5 May at 10.30, in order that we can share the information with you. If this date and time are inconvenient, please do not hesitate to contact me”

12.	As we now know that letter went to the wrong address as given by the anonymous caller and was almost certainly never received by the mother. 
 
13.	On 4 May the same A and I officer received a further telephone call from the anonymous caller. She wished to know what was happening. Mrs Cordingley told the worker to tell her that the matter was being dealt with. The caller gave the A and I officer Grandmother’s address but made no further allegations nor clarified any of the earlier allegations although she was not asked to do so by Mrs Cordingley through the A and I officer.

14.	Mother did not turn up on 5 May at 10.30. Mrs Cordingley did not realise this until late in the day and decided to discuss matters with her manager the next day. As we know Aaron was admitted to hospital on 5 May and died on 6 May.

15.	Following the death Mrs Cordingley remained in post although was more closely managed and supervised by her manager. In February 2007 she went on maternity leave. During this time disciplinary proceedings were initiated and following return from maternity leave she spent some time in the fostering team. The conclusion of the disciplinary hearing on 2 October 2007 was that she should receive a “second level warning” and she returned to the A and I team in October 2007. Around this time Mrs Cordingley applied for re-registration to the Care Council for Wales and quite properly, disclosed the disciplinary action against her. The Care Council for Wales started its own investigation and brought charges against Mrs Cordingley culminating in the hearing on 22 and 23 January 2009. Following the removal from the register Mrs Cordingley was dismissed by the authority on 27 February 2009.

16.	Following Aaron’s death the authority and Area Child Protection Committee commissioned a number of reports. The first of these was undertaken by Lindsay Harper which reported on 12 May 2006, 12 months after Aaron’s death. We also saw an Overview report from Andrew Burroughs dated 24 April 2007 and an independent report by Martin Price which is undated but was written to be considered at Mrs Cordingley’s disciplinary hearing in October 2007.

THE HEARING

17.	In many ways this is an unusual case in that the core facts are not in dispute nor is the issue of misconduct disputed. The parties produced an extremely helpful document headed “Agreed statement of Facts” dated 31 July 2009. This runs to 14 pages and culminates as follows;

“The Appellant admits the facts of the following charges, namely that, between 27 April 2005 and 6 May 2005, whilst employed by the City and County of Swansea as a Social Worker in the Access and Information team, she;

1(a) Exercised poor professional judgment and/or acted without due diligence in relation to a referral concerning Child A

2(a) Failed to comply with child protection procedure having been presented with a referral concerning Child A which indicated the need for child protection consideration

The Appellant admits that each charge amounts to misconduct”

18.	The issue before us was one of sanction and the case put by Mrs Cordingley was that the Conduct Committee had exercised their discretion wrongly and failed to take into account a number of matters when weighing up the appropriate sanction to impose. In a nutshell these were;

a)	The organisational situation in existence at the time
b)	Mrs Cordingley’s subsequent performance
c)	The authority’s disciplinary process
d)	Her insight and remorse

19.	During the course of the hearing it also became apparent that the Appellant questioned the lack of explanation given by the committee for its decision making and the proportionality of its response. To what extent were they seeking to make an example of Mrs Cordingley because of the public outrage at Aaron’s death?
 
20.	We heard evidence from Denise Litchfield the A and I team leader who was in post immediately following Aaron’s death, Michael Holding senior manager, Lindsay Harper the author of the report highlighted above and from Mrs Cordingley herself. We have seen and read a bundle running to over 900 pages including a large number of testimonials written on behalf of Mrs Cordingley. We had the benefit of skilful assistance by both advocates and very helpful written closing submissions from both parties.

21.	As a result of all we have heard and read we make the following findings;

THE ACCESS AND INFORMATION TEAM

22.	Swansea is an area of high social deprivation. In 2008/2009 referrals in respect of Children in Need were running at around 400 per month with 189 children on the Child Protection register with 64 S47 enquiries in June 2009. 93% of registered children had an allocated qualified social worker. Whilst these figures may be slightly inflated as a result of the publicity generated by recent child deaths it is fair to assume that they are reflective of the situation in April 2005.
 
23.	The Access and Information Team was set up in January 2005. It was a new initiative. It had an interim Team Manager who had other responsibilities. There were 4 unqualified A and I officers who took the referrals and the social worker, Mrs Cordingley, and the Team Manager who acted upon them sending relevant referrals straight on to the North and South Child Assessment Teams. It was Mrs Harper’s evidence that the team had received training including role playing involving a script prior to the start of the team. If this is the case, by the time Mrs Litchfield took over as Team Manager in May 2005 it had worn off. The script had been quickly abandoned and Mrs Litchfield felt that the team were insufficiently trained. She described giving on the job training through Team meetings and supervision. She described the team room as being like a nest of small birds with each worker sharing information regarding referrals. She indicated that they were receiving about 50 referrals a day, 5 or 6 were sent on to the Child Assessment Teams. 

24.	The Access and Information Team at this time was undoubtedly in an evolutionary phase. We have heard evidence of its subsequent changed role and increased resources. The workers were in our view left at that stage under resourced and under trained. 

25.	There was an inherent tension in the system as the Child Assessment Teams were themselves over worked and each new referral caused greater strains upon their resources. They were not making targets in undertaking assessments with 7 days. There had been a number of complaints that Mrs Cordingley had referred matters on inappropriately. Mrs Cordingley had a problematic relationship with her manager. She accepted that she referred a lot to her and that her manager probably felt her to be quite needy. 

26.	When the referral was received on 27 April 2005 Mrs Cordingley had a discussion with the A and I officer who emphasised that the caller was not very coherent and had made great play of the mother wearing short skirts when pregnant. In our view the main focus of the referral was the unborn child hence the written record being in that child’s name and not stating Aaron’s age. Mrs Cordingley was in our view overly influenced by this discussion with an unqualified newly employed officer. We consider that this coloured her judgment and coupled with her previous experience of complaints regarding inappropriate referrals caused her to keep the referral to investigate further. In doing this she made an understandable but none the less wrong decision.

27.	Once this decision was made everything else flowed from it. She had the opportunity when the caller rang again on 4 May to seek further information but she reasoned that she could do this the following day when she met the mother. 

28.	Mrs Cordingley told us that she had recorded the appointment on 5 May in the Team diary but not her personal diary. She checked her own diary that morning but not the team diary. It was not until later in the afternoon that she remembered mother had not attended. She decided to discuss this with her manager the following day. 

29.	We consider that the original decision to invite the mother into the office for an interview was poor practice. It had occurred previously in the team although the circumstances of those individual cases are unclear. Mrs Litchfield abolished the practice immediately upon becoming team manager. The previous team manager should not have allowed the practice to develop at all. It was clearly in conflict with the purpose of the team. Whilst Mrs Cordingley has to take individual responsibility for the decision, which she does, there are also organisational failures in play.

30.	Mrs Cordingley is also at fault for having a disorganised method of working whereby appointments are not cross referenced in diaries. She should have realised earlier that the mother had not attended the appointment. We do not consider that this however takes matters any further.

31.	We do find that there were organisational factors that played a part in Mrs Cordingley's poor decision making. 

THE CONSEQUENCE OF NOT REFERRING

32.	It is important in the context of the prejudicial publicity generated against Mrs Cordingley and the manner in which the conduct committee seem to have considered this matter, to consider whether it is likely that if she had referred matters as she should, that Aaron’s murder would have been prevented. The 27 April 2005 was a Wednesday. The Child Assessment team would have realistically looked at the referral on the Thursday. Their first task according to the Manual quoted above is to consider whether the matter should go for initial assessment. We cannot know whether they would have given this a positive assessment. Even if they had, we have no doubt whatsoever that Denise Litchfield is correct in her assessment (and Mr Price and the conduct committee wrong) that this would not have been treated as a S47 referral. The imprecise nature of the allegations, the lack of clarity in respect of Aaron, the incorrect information regarding the address and the focus on the unborn child mean that in a busy inner city team this would not reach the S47 threshold. Both Mr Price and the committee have fallen into the error of considering the referral in the light of Aaron’s death and not in the context of the time. 
 
33.	Even if the target of completing an assessment in 7 days were achieved this would not necessarily have helped Aaron. This was a bank holiday weekend. 7 working days takes one to Monday 9 May, after Aaron’s death. 5 working days takes one to 5 May the day when Aaron received his fatal injuries. This assumes that the assessment would have been undertaken in the target time and we have heard evidence from Mrs Litchfield that many were not. Aaron was also not at his home address. All this begs the question firstly whether he would have been found at all, secondly if found whether the danger he was in would have been recognised given the lack of previous knowledge and thirdly even if recognised, whether he could have been protected from Lloyd’s murderous rage. It is a huge leap to make to suggest that if Mrs Cordingley had referred as she should that it is likely or even possible that Aaron would have been saved

MRS CORDINGLEYS SUBSEQUENT PERFORMANCE

34.	It is a peculiarity of this case that following the tragedy in May 2005 Mrs Cordingley remained in post for 3 and a half years. We heard positive evidence from Mrs Litchfield regarding her performance and have seen many testimonials in her favour. We heard from Mrs Cordingley about the additional training she has attended. There have been no adverse reports regarding her performance. These are factors that need to be weighed when considering sanction.

THE AUTHORITY’S DISCIPLINARY PROCESS

35.	Despite these events occurring in the Spring of 2005 the Local Authority did not bring disciplinary proceedings to a conclusion until October 2007. They considered Mrs Cordingley’s performance in depth and decided to give her a second stage warning for 12 months.. This is a factor that needs to be taken into account.

HER INSIGHT AND REMORSE

36.	It is important to recognise, accept and give credit to the fact that Mrs Cordingley has accepted from the outset that not only did she make a professional misjudgement but that this amounted to misconduct. She has not sought to diminish her responsibility or hide behind semantic arguments. She has been clear throughout that she was culpable. She has not just made this concession in order to try to achieve tactical advantage. Having heard her give evidence we are in no doubt that she has reflected long and deep about her decision making. She is clear that she was wrong. It is clear from her responses to questions that she has learnt from the experience. It has made her consider her actions in the light of what she perceives to be the consequences of these actions. It makes her paradoxically a safer social worker.
 
37.	There is equally no doubt in our mind that she suffers huge remorse. She blames herself for Aaron’s death. It has affected her health and her family life. In her evidence to the Tribunal she indicated that there is not a day goes by when she does not reflect upon her decision. She has suffered vilification in the press and ill informed public opprobrium. Yet she still lives in Swansea and wishes to continue working in social work. This shows great moral courage and is enormously to her credit.

THE DECISION

38.	It is incumbent upon any regulatory body to give full reasons to explain their decision making processes. The decision following two days hearing runs to just 3 ½ pages. The rationale of the decision is as follows;

“The misconduct admitted in this case is considered so serious that removal from the register is the only appropriate sanction. This is necessary for the protection of the public and to uphold the public interest in maintaining confidence in social care services. ”

39.	The only reference to alternative sanctions is to say that they were considered but not felt appropriate. Their inappropriateness is not explained. There is no reference to the context in the Assessment and Investigation team at the time, no reference to Mrs Cordingley’s subsequent performance, no reference to her insight, no reference to her remorse. There is no consideration of the fact that 3 ½ years have passed without any further concerns being raised. Critically there is no analysis of why this conduct was considered so serious that no other sanction was appropriate. The impression is gained that the Committee was so influenced by the fact that underlying all the issues was the death of Aaron, that they failed to analyse forensically the decision making on 27 April 2005 objectively and dispassionately.

PROPORTIONALITY

40.	The Conduct Committee’s decision has the effect of depriving Mrs Cordingley of her livelihood. Accordingly any such decision has to be proportionate to the misconduct found or admitted. In this case there was a wrong decision made. In the context of the manner in which the information was received and the pressure this new team were under it is a misjudgement that others may also make. It is, in the cold light of day and with the benefit of hindsight, a serious error but when she made the decision she did not have the time and space that others over the years have had to dissect it. We do not consider that the misconduct in itself justified the ultimate sanction. It was not a case of gross misconduct. It was not the culmination of a long record of poor decision making. It did not display dishonesty or breach of trust. It was an error of professional judgment.

DECISION AND RECOMMENDATION

41.	Since the Maria Caldwell case in the 1980’s a number of child deaths have generated expensive enquiries looking at how agencies can do better to protect children from murder by their parents and carers. Through cases such as Kimberley Carlisle and Tyra Henry through the Victoria Climbie case to Baby Peter society has tried to understand how the deaths occurred to prevent future deaths. Alongside this has grown a culture of blame not toward those who perpetrate the crimes but toward the professionals doing their best to protect children. Yet despite the increased levels of hysteria homicide rates have remained relatively consistent over the years. People will continue to kill children despite, not because of, the efforts of professionals. No system can prevent desperate, inadequate or depraved people abusing their children.

42.	It is important that those charged with the regulation of the professions remain vigilant not only in rooting out dangerous practice but to the necessity not to be swayed by apparent calls for retribution towards professionals. A professional conduct committee must offer a forum for detached, informed and detailed evaluation of the alleged misconduct itself. The consequences, however tragic, of the misconduct should not be allowed to dictate the sanction imposed.

43.	It follows from what we have said above that we do not consider that Mrs Cordingley’s honest but wrong decision fell into the category of decisions that required the ultimate sanction. The misconduct itself cannot however be considered in isolation. It was incumbent upon the conduct committee to consider the mitigation that Mrs Cordingley had to offer; her work record, her remorse, her insight.

44.	Under S68 our powers are limited to either allowing the appeal or dismissing it. We have no hesitation in allowing it. We have been told by Mr Miles that the Care Council for Wales will give careful consideration to any alternative sanction that we recommend. The events that have been analysed in depth took place over 4 years ago. Mrs Cordingley has been punished enough. She has been out of work since February 2009, she has suffered vilification and her health has been adversely affected. To suspend her now for events 4 years ago would be inappropriate. We cannot see that given all the positive measures taken by Mrs Cordingley to January 2009 an admonishment is necessary or reasonable. We therefore recommend that no further action be taken.

Appeal Allowed.
We direct that the decision taken by the Care Council for Wales on 23 January 2009 to remove her name from the Register of Social Workers not have effect. 

Mr I Robertson (Nominated Tribunal Judge)
Mrs Margaret Williams (Specialist member)
Mr David Cook (Specialist member)