DECISION

Appeal No [2010] .1777.SW.SUS

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

S C-W

-v-

THE GENERAL SOCIAL CARE COUNCIL

-Before-

IAN ROBERTSON
(Nominated Tribunal Judge)
JENNIFER CROSS
(Specialist Member)
BEZ CHATFIELD
(Specialist Member)

Decision

Heard on 21 October and 23 November 2010
Care Standards Tribunal Service
18 Pocock Street
London SE1 0BW

Representation

Appellant in person

Ms Felix (Counsel) for the Respondent on day 1 Mr Lynch  (Counsel) on day 2

BACKGROUND

1.	Ms S C-W is a registered Social Worker she is not currently practicing having a secondary career as a barrister. The facts of this matter can be put relatively simply. On 1 July 2009 Ms C-W became involved in an altercation with a parking attendant. She had driven into her local town with her partner to get some goods at Boots the chemist. She dropped her partner off and tried to find somewhere to park. She eventually parked behind a lorry in a parking bay. She was approached by a parking attendant and a row ensued. During the course of that row Ms C-W called the attendant a “fat paki bastard”. The police were called and Ms C-W was arrested. She was offered a caution for racially aggravated harassment but refused to accept it electing instead to be charged in order to defend the matter, she having denied the use of that phrase.

2.	On 16 July 2009 the matter came before Luton magistrates court she having previously entered a not guilty plea. She was formally charged as follows;

“ On 1/7/08 at Luton in the County of Bedfordshire used threatening, abusive or insulting words or behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress and the offence was racially aggravated in accordance with section 28 Crime and Disorder Act 1998 contrary to S5 Public Order Act 1986 and S31(1)(c ) and (5) Crime and Disorder Act 1998”

3.	She failed to attend court, the matter was dealt with and she was found guilty and sentenced to a 24 month conditional discharge with costs of £450. 
 
4.	On 9 January 2009 Ms C-W self referred to the GSCC as she was aware that criminal charges were pending. On 7 August 2009 the GSCC obtained confirmation of the conviction and wrote to Ms W-C indicating that they were investigating the matter. Following investigation the matter was put to a conduct committee. That committee met on 10 May 2010. Ms C-W did not attend the hearing. In the event the Committee decided to impose a two year suspension of Registration. Ms C-W appealed that decision on 3 June 2010.

PRELIMINARY MATTERS

5.	The Tribunal was listed to hear this matter at 10.30 on 21 October 2010. At approximately 9.50 the Tribunal administrators received an E mail from Ms C-W indicating that she had problems with her car and would be at the tribunal by 12.30ish. The Tribunal were reluctant to wait given that the Appellant had not responded to numerous messages left on her mobile telephone and that her home address was very close to a quick direct and regular rail service to within half a mile of the hearing centre. Nonetheless the Tribunal decided to wait until 12.30. At twelve thirty Ms C-W telephone to say she would be half an hour. Given the delays already incurred and fearing that time would run out the Tribunal decided to start the hearing in her absence in accordance with Rule 27 of the Tribunal Rules.
 
6.	In the event Ms C-W did not arrive until 1.50. Somewhat bizarrely she could offer no real reason for her lateness other than the fact that she panicked. 

7.	During the period prior to Ms C-W’s arrival the Tribunal raised with Ms Felix for the GSCC concerns regarding the jurisdictional constraints upon the them and asked for submissions on this. Upon Ms C-W’s arrival the Tribunal indicated that it was mindful to adjourn to allow both Ms Felix and Ms C-W to research and make submissions upon the jurisdictional issues raised specifically;

“  "If The Tribunal hearing the appeal comes to the view that the sanction imposed by the Conduct Committee is not the sanction that they as an expert tribunal would have imposed are they entitled, having come to that view, to allow the appeal despite the potential consequences in a case where the facts founding the misconduct are not in dispute?

8.	The Tribunal made it clear as a preliminary indication that they had a degree of disquiet regarding the severity of the sanction imposed by the conduct committee and wanted to investigate the extent to which they were able to interfere with this. Accordingly therefore the matter was adjourned to 23 November with timetabling provisions for the filing of skeleton arguments.

THE LAW

9.	The right to Appeal to the Tribunal is created by S68 Care Standards Act which states as follows;

68.—(1) An appeal against a decision of a Council under this Part in. respect of registration shall lie to the Tribunal.

(2) On an appeal against a decision, the Tribunal may confirm the decision or direct that it shall not have effect.

(3) The Tribunal shall also have power on an appeal against a decision—

(a) to vary any condition for the time being in force in respect of the person to whom the appeal relates;
(b) to direct that any such condition shall cease to have effect; or
(c) to direct that any such condition as it thinks fit shall have effect in respect of that person.

10.	It follows from S68 at first glance that we as a Tribunal do not have power to hear a case de novo and apply to the Appellant whatever sanction we consider appropriate. On the face of it our power is limited to simply confirming or setting aside the decision. However the Tribunal does have certain powers upon such appeals as set out in S68 (3) (c ) above. It appears to us that this power mirrors that of the GSCC under S58

58.—(1) If the Council is satisfied that the applicant—

(a) is of good character;
(b) is physically and mentally fit to perform the whole or part of the work of persons registered in any part of the register to which his application relates; and
(c) satisfies the following conditions,

it shall grant the application, either unconditionally or subject to such conditions as it thinks fit; and in any other case it shall refuse it.

(2) The first condition is that—

(a) in the case of an applicant for registration as a social worker—

(i)	he has successfully completed a course approved by the Council under section 63 for persons wishing to become social workers;
(ii)	he satisfies the requirements of section 64; or
(iii)	he satisfies any requirements as to training which the Council may by rules impose in relation to social workers;

(b) in the case of an applicant for registration as a social care worker of any other description, he satisfies any requirements as to training which the Council may by rules impose in relation to social care workers of that description.

(3) The second condition is that the applicant satisfies any requirements as to conduct and competence which the Council may by rules impose.

11.	 Mr Lynch argued that S68 only applies to decisions regarding registration and that accordingly a sanction imposed by a conduct committee falls outside S68. If this is the case it is unclear where the power to appeal from a conduct committee to the Tribunal derives. In our view the term “registration” in S 68 applies to all decisions that effect registration. A decision of the conduct committee is a decision that effects registration as any sanction does impact upon the registration. We therefore reject Mr Lynch’s argument in this regard.
 
12.	Thus it appears that we have power on appeal to consider the matter afresh at least for the purpose of applying our powers under S68(3)

13.	The question that follows from this however is in determining the appeal to what extent are we reviewing the decision of the conduct committee and its reasonableness and to what extent are we applying our own views. Furthermore if, as in this case (see below), we consider that a 5 year admonishment (as sought by the presenting officer before the committee) would have been a more appropriate sanction, how do we square this with the paradox that faces us; namely allowing an appeal that leaves a person worthy of punishment without sanction or refusing the appeal and leaving a sanction that we consider disproportionate in place.

THE CONDUCT COMMITTEES RATIONALE

14.	We quote their decision in full;

“The Committee has had regard to the Indicative Sanctions Guidance and has also taken note of Ms C-W’s statement that she is not practising at this time. The Committee is disappointed that Ms C-W has not apologised for her behaviour and has not specifically apologised to the PEO. The Committee has taken note of Ms C-W’s previously unblemished record. The Committee decided that to take no further action would be inadequate in view of the seriousness of the criminal conviction and all its attendant circumstances. The public interest requires that a sanction is applied in such a serious case. 

The Committee considered a sanction of admonishment, as requested by the Presenting Officer. The Committee felt that this would not adequately reflect the behaviour of Ms C-W at the time of the offence and her subsequent lack of insight into her behaviour and use of a racist term. To allow Ms C-W to continue to practice as a social worker after she has demonstrated such a lack of respect for others and lack of self-control would not be proportionate. Public confidence in the delivery of services to care users in diverse communities would be damaged if Ms C-W were free to continue to practise at this time. 

The Committee feels that suspension from the Register for a period of two years adequately reflects the public interest in maintaining confidence in the delivery of social services to all members of society by a person who has behaved so badly and failed to demonstrate an understanding of the seriousness of her own behaviour. This sanction indicates to Ms C-W the seriousness of her behaviour and the need to change it. 

The Committee considered the sanction of removal from the Register but felt that this would be disproportionate as this is the first finding of misconduct against Ms C-W and because the events leading to this matter were not premeditated” 
 
OUR APPROACH

15.	The factual matrix in this case is effectively agreed. There may be cases where this is not the case and the Tribunal will hear a matter de novo but not here. We are an expert tribunal established as such under the legislation. We are not a quasi administrative tribunal restricted to reviewing the “Wednesbury” reasonableness of the decision making of the conduct committee. If that were our function, it is, with respect, one better performed by the Upper Tribunal. 
 
16.	As an expert Tribunal we are entitled to look at matters afresh and consider what sanction we consider appropriate. In this case we had the benefit of seeing and hearing from Ms C-W which the conduct committee did not. She accepted before us that this was a mistake. We have no doubt that she was genuinely sorry for her actions. As a person of dual heritage she is better aware of the impact of her actions than many of us. She is contrite. She choose to expend her energies in dealing with disciplinary matters before the Bar Council and thought, wrongly, that as the presenting officer was recommending admonishment, this is what would happen. She fully accepted that admonishment was appropriate. 

17.	Having seen Ms C-W we feel that the central plank of the committees reasoning falls. It almost appears from there reasoning that they treated her non attendance before them as a snub. There is of course no requirement for a person to appear and we do think it would be wise, in the absence of the registrant,  if the conduct committee consider imposing a greater sanction than that recommended, that the committee adjourn to allow the registrant the opportunity of attending before them.

18.	In coming to their decision the committee also took into account the fact that Ms C-W was not practising as a social worker. That in our view is irrelevant. We consider that this allowed them to lose sight of the impact of their decision. To impose a suspension for two years is to deprive a person of the right to use the title of social worker. This impacts upon the registrant regardless of whether they are practicing as a social worker or not. It deprives her of the right to style herself in this way and may therefore impact upon her capacity to attract work in associated fields. It is a very serious sanction and one that impinges upon the registrants Human Rights. It should only be imposed in the most severe of cases. 

19.	In this case Ms C-W’s actions were wrong. They attracted a criminal sanction. The loss of control and use of racist epithets are to be deplored. The actions reflect badly upon her and upon the profession. The purpose of the admonishment in this case is to reflect the professions abhorrence at this behaviour. It would remain in place for 5 years. It would be a public record and would enable potential employers or contractors of her services to be aware of the incident for 5 years. This is a much more effective and proportionate sanction than suspension.

WHERE THIS LEAVES THE TRIBUNAL

20.	We as an expert Tribunal have concluded therefore that the appropriate sanction in this case would have been a 5 year admonishment. We have taken a different view from the conduct committee having reviewed the evidence and heard from Ms C-W.. We have set out our reasoning above. We have specifically not reviewed the original decision per se but rather come to our own view and pointed out why we consider that the decision to suspend was flawed, We have considered matters not before the committee, specifically the submissions of Ms C-W orally before us. We consider this to be our role.
 
21.	We accept however that our decision making powers are constrained by S68. It is a binary decision we either allow the appeal or dismiss it. This is totally unsatisfactory. Everybody in this case including the appellant accept that a sanction should be in place. The only issue is the nature of that sanction. We are faced with having to either allow the appeal thereby in effect leaving the appellant without sanction or dismiss the appeal leaving her with a disproportionately harsh sanction that seriously impacts upon her Human Rights. 

22.	We are mindful in coming to our ultimate decision that the Appellant has actually suffered a sanction in that she has been suspended since 10 May 2010. We consider in all the circumstances, that the decision to suspend for 2 years is so disproportionate that it cannot be allowed to remain and accordingly we allow the appeal. 

IAN ROBERTSON
(Tribunal Judge)

6 December 2010