IN THE FIRST TIER TRIBUNAL
Health Education & Social Care Chamber
[2010] 1845.SW

                                           R C                         Appellant

v

                                  GENERAL SOCIAL CARE COUNCIL               Respondent

Before:     Mr Andrew Lindqvist (Nominated Tribunal Judge)
	      Mrs Geraldine Matthison
	      Mrs Christa Wiggin	

Heard on the 14th and 15th March 2011 at Field House, London.

The appellant appeared in person, assisted by Ms Suzanne Datta
The respondent was represented by Mr Guy Micklewright

DECISION

1. The appellant appeals under section 68 of the Care Standards Act 2000 against the decision of the General Social Care Council, (hereinafter ‘GSCC’) made on the 20th October 2010 to order the removal of the appellant's registration from the register of social workers maintained under section 56 of the Act.

Preliminary Matters

2.  The appellant made his appeal by a notice dated 25th October 2010.  On the 6th January 2011 Tribunal Judge Hillier gave directions as to the conduct of the appeal, including a restricted reporting order.  On the 22nd February, the appellant, having failed to comply with those directions and having failed to attend a telephone case management conference on the 21st February, Tribunal Judge Tudur, directed the appellant to show cause why the appeal should not be struck out.  On the 9th March, the appellant having shown adequate cause and having complied with the directions made on the 6th January, Tribunal Judge Tudur directed that the appeal should not be struck out but should be heard as listed commencing on the 14th March 2011.

3. At the hearing on the 14th March, the Tribunal placed little emphasis on the distinction between review and rehearing, it seemed inappropriate both in the light of the nature of the appeal and the unrepresented appellant.  In the event, the appellant's first point (procedural fairness) led to a hearing more in the nature of a review, his other points led to proceedings more in the nature of a rehearing.

4. It appeared at an early stage that the appellant did not have the same bundle of documents as others present, he appeared to have an earlier bundle containing most of the documents in the trial bundle, but differently paginated.  A copy of the trial bundle was made available to him, and the Tribunal ensured that he was at no disadvantage because the documents were in a different order.

5. The Tribunal, having heard Mr Mickelwright’s opening remarks, heard oral evidence from Ms Stephanie O’Brien.  Her evidence in chief concluded shortly before the luncheon adjournment and the Tribunal allowed an extra half-hour so that the appellant would have the opportunity to consider her evidence and any questions he wished to put to her.

6. The respondent’s case closed with Ms O'Brien's evidence and the Tribunal explained to the appellant that he should choose whether to give evidence, but that he would be entitled to make submissions whether or not he gave evidence. If he chose to give evidence, what he said would carry greater weight, but he would be subject to cross-examination by Mr Micklewright.  The appellant elected to give evidence.  He called no other witness, but submitted a written statement from his partner (referred to as ' G ').

7.  The appellant requested, as he had in respect of the GSCC proceedings, a private hearing. The point was not argued at any length, because there was no one present at the hearing except those listed in the heading of this decision, the Tribunal Clerk, 
and, during her evidence, Ms O'Brien, all of whom would have been present during a private hearing.

8. However, the Tribunal did decide, like the conduct committee of the GSCC, that those parts of the hearing which related to an assaulted child should be in private, even though adjourning into private hearing had no practical effect. 

The background

9. The appellant, who is of Afro-Caribbean descent, qualified as a Social Worker in November 2001.  He had previously worked for the Salvation Army, and as a student, worked with Greenwich Social Services and MIND in Croydon (both on placement) and with the Nile Centre as a crisis support worker.  After qualifying, he worked for a short time as a Social Worker for the NHS at Rochford Hospital and then, until 2007, for Haringey Social Services.  In 2007 the appellant successfully applied for a post as a Mental Health Social Worker with Brent Council and started work in that post in February 2008. 

10. On the 25th June 2009, the appellant was away on leave.  His partner became concerned about his whereabouts and telephoned Brent Council.  That call provoked a reading of the appellant's file, and it was noticed that his partner appeared to be the authoress of one of the references which the appellant had submitted with the application for his post.

11. On the 6th July 2009 the appellant returned from leave to be called to a meeting about the reference.  On the same day, after that meeting, Newham Social Services telephoned Brent to report that the appellant had been involved in an assault on a child.  Pending further investigation of the reference, the appellant was suspended on full pay on the 6th July 2009, but on the following day, he wrote to resign his post. The letter acknowledging his resignation mentioned possible further action, both in regard to the reference and to the report from Newham.

12. Both matters were referred by way of complaint to the GSCC on the 23rd July 2009.  The Conduct Committee of the GSCC arranged a hearing to take place on the 18th October 2010 and on the 9th September 2010 wrote to the appellant informing him of that hearing.  On the 14th September 2010 he was notified of a change of venue.  On the 25th September 2010 the appellant wrote to confirm that he would not attend the hearing and would not be represented.  He stated that he wanted the hearing to be in private with a person of colour to sit in on the hearing, but declined to say in any detail why he asked for a private hearing.

13. The Conduct Committee decided that only the parts of the hearing which related to the assault on the child should be heard in private, the remainder of the hearing should be in public.  The Committee, having considered the evidence decided that the appellant had been guilty of misconduct and that the appropriate sanction was removal from the register.

The appeal

14. The appeal against the Conduct Committee's decision raises four matters, a) the fairness of the Committee's procedure,  b) the reference,  c) the assault on the child, and d) the appellant's later seeking a reference from a colleague. The last can be quickly disposed of, because the Committee did not find misconduct proved in relation to that second reference, and Mr Micklewright did not pursue that matter before the Tribunal.

The fairness of the Committee’s procedure

15. The appellant contends that the GSCC, in particular the Conduct Committee did not give him a fair hearing in that the panel on three occasions when he attended hearings, consisted of white middle aged members, and in that his request for a private hearing was refused. 

16. The appellant did not point to any specific instance of prejudice or disadvantage arising from the ethnic composition of the panel.  His point was the general one that he, a young Afro-Caribbean man, felt intimidated, oppressed, distressed and prejudged because the panel did not reflect the age group of the appellant and/or the diversity of his working environment.

17. In answer to a question from the Tribunal, during his evidence on oath, the appellant said that, even if everyone at the Committee’s hearings had been of an ethnic minority group, he would nonetheless have felt a measure of vulnerability, intimidation, oppression and distress.  It is quite understandable that a young man, unrepresented, appearing before such an enquiry would experience such feelings.  It is plain from the appellant’s answer that such feelings were only in part caused by the ethnic composition of the panel.

18. It is, however, not the litigant’s perception which determines the fairness of the court, enquiry or tribunal, but that of the hypothetical fair minded and informed observer.

19. The rules governing the appointment of members to the panel are to be found in the General Social Care Council (Conduct) Rules 2008, at rule 7. Rule 7 says nothing about ethnicity, but rule 7(7) requires a member with experience or understanding of the area of social care work under consideration.

20. There was nothing to suggest any breach of those rules either in the letter or in the spirit in relation to any of the three panels before which the appellant appeared.  The record of the Committee's proceedings on the 18th, 19th and 20th October 2010 (which the appellant did not attend), shows careful attention to the interests of the absent appellant, and nowhere is there any suggestion of prejudice.

21. In the Tribunal's view, the hypothetical fair minded and informed observer could have reached only one conclusion about the fairness of the Conduct Committee proceedings, namely that they were fair to the appellant.

22. The appellant also complains that he was not allowed a private hearing.  He declined at one point to give reasons for that request, but it is reasonably clear that it was based on a desire not to attract that the glare of publicity to the appellant's own actions and concerns and to his family.

23. With regard to the appellant's own actions and concerns, there is an overwhelming public interest in open and public administration of justice at all levels.  This is reflected in paragraph 9 of Schedule 2 to the General Social Care Council (Conduct) Rules 2008, which makes a general requirement of a public hearing.  The Conduct Committee decided that only matters relating to the assaulted child were to be treated as an exception to the general rule and heard in private.

24. The decisions of the Conduct Committee in relation to public/private hearing were in the Tribunal's view correct and the Tribunal itself adopted the same course.  Even if that course were incorrect, it is hard to see how any procedural unfairness to the absent appellant could have arisen, though he might in that event have had a justified complaint about unwarranted publicity.

25. It is not clear that the appeal involves any complaint based on the Conduct Committee’s proceeding in the appellant's absence.  If so, it would be very difficult to sustain because he clearly, voluntarily and unequivocally exercised a free choice not to attend the hearing before the Conduct Committee.

26. The record of the Committee’s proceedings shows that it considered carefully, and with the benefit of legal advice, the propriety of proceeding in the appellant's absence, and properly decided to do so.

27. For those reasons, the Tribunal rejects the appellant's allegation of unfairness or prejudice.

The reference of December 2007

28. The appellant was required to submit two references with his application for the post with Brent Council.  He obtained one from his previous employers at Haringey, it was an entirely proper reference and no complaint has ever been made about it.  The other reference was from a company called P R Freddi Ltd. It is dated the 11th December 2007 and signed by a project manager.  It says that the company employed the appellant as a support worker from June 2000 to July 2001, that during that period he had two weeks off sick, and that his disciplinary record and performance were good.  In particular, it refers to the appellant’s ability to form good working relationships with clients and parents.  Summing up his overall performance, the reference says that the appellant is a very good social worker with effective communication skills and the desire to empower his clients whenever he can.  It concludes, ' I would recommend Mr Clarke for the post of social worker '.

29. That reference appears to have been accepted at face value, without any appropriate checks undertaken by Brent Council.  In the summer of 2009 the appellant went on leave, without, apparently, keeping his partner, ' G ', informed.  Consequently, ' G ' made, on the 25th June 2009 an anxious telephone call to Brent Council enquiring about the appellant's whereabouts.  The call was answered by Ms O'Brien, who took ' G’s ' telephone number and said she would call back.  Referring to the appellant's file, Ms O'Brien noticed that the telephone number of the author of the reference from P R Freddi Ltd was the number she was to call back to speak with the appellant's partner, although the referee's name was not identical to that given over the telephone.

30. When Ms O'Brien called back, it was quickly established that referee and partner were indeed one and the same.  Ms O'Brien did not divulge to ' G ' much information about the appellant and suggested that ' G ' contact the police.  Ms O'Brien then looked up P R Freddi Ltd on the internet to discover that it was an agency for building workers with no apparent connection with social care.  The agency proved to be owned by ' G’s ' brother.

31. On the appellant's return from leave on the 6th July 2009 he was interviewed by Ms O'Brien about the reference and notes of the interview were made.  The appellant readily accepted that the reference was made by his partner, ' G. '.  She did not always use the surname Clarke, informally she would not do so, in formal circumstances, she usually did.  The appellant said he saw nothing inappropriate in using his partner as a second referee. He readily agreed that he had been doing labouring work and not support work or social work of any kind for the agency for which ' G ' worked.  He explained in evidence on oath that he had rigorously sought references from past social worker employers but staff turnover had been such that there was no longer any one remaining who remembered him. He said that he had provided one reference from a social work employer as requested and he considered that a second character reference would be acceptable. 

32. In his appeal statement and in his evidence before the Tribunal, the appellant said that he provided his partner with his job application papers, and she completed the reference form.  He himself did not see the completed form until presented with the papers for the Conduct Committee hearing.  His evidence was corroborated by a written statement from ' G ', the relevant part saying ' Robert had no knowledge of its content, nor did he assist in its preparation.  The wording of the reference was a mistake on my part. '

33. This part of the case (and this alone) gave rise to a divergence of view among the Tribunal members. The majority view (that of the Tribunal Judge and Mrs Matthison), was that it was highly improbable that a couple who had lived together for some years would not discuss in some detail a new job to be sought by one of them.  The content of any reference sought would be bound to arise in the course of such discussion and the misleading reference was thus the work of both partners.  It was unlikely on the balance of probability that the appellant had merely given ' G ' the papers (or as it appears electronic information) and left her to complete the form with no input at all from him.  It was impossible to view the allusion to social work as a mistake on 
' G’s’ part as she suggested in her statement.  Accordingly, in the majority view, the appellant had had a hand in concocting a misleading reference with a view to obtaining a post in which openness, trust and honesty were important.

34. Mr Micklewright pointed out a disparity of dates.  The appellant justified his approach to his partner on the basis that the agency for which she worked was his most recent employer, from whom a reference was required.  The dates recorded appeared not to show the agency as the most recent employer.  However, the dates were not consistent in the documents and the Tribunal did not see that as a compelling point against the appellant.

35. The minority view, that of Mrs Wiggin, was that there was insufficient evidence to show on the balance of probability that the appellant had had a hand in the writing and submission of the misleading reference.  It could, in her view, have been, as the appellant and ' G ' said, that the appellant having sought from several past social work employers a social work reference, asked ‘G’ to provide a character reference. In her view it was quite possible that ‘G’ as she said in her written statement to the Tribunal had created the reference and it was her own work. 

36. The appellant readily admitted that the reference was misleading and stated on oath that he had not had an opportunity to see it and it was sent directly to Brent by ‘G’. Mrs Wiggin noted that the appellant in evidence stated that he and his partner ‘G’ lived in a busy household which included teenagers and young children and they were very stretched in balancing two jobs and child care. In her view it was very possible that appellant had not had the opportunity to check the reference before it was submitted. 

37. In response to questions from Mr Micklewright the appellant stated that he was not ‘desperate’ for a job, he already had one, and that he could have earned more money taking an agency post and working for Brent. The appellant explained that he applied for this post as he was qualified and felt a permanent job would be preferable. He indicated that he did not feel that he needed to obtain the job by participating in creating a misleading reference. 

The assault on ‘child A’

38. It is inappropriate and unnecessary to recite much detail about the assault on the 13-year-old girl known as ' child A '.  The appellant accepts that he seized her hair and shook her, maybe striking her head against the railings of her bed.  Having let go of her hair, he threw a shoe at her and then an electric fan.  On the 21st September 2009     the appellant was given a caution for the assault. Mr Micklewright sought to make something of the appellant's experience as a member of the Marines , suggesting that he was a ' trained killer '.  Whatever the truth of that, the Tribunal did not see it as of any relevance in the context of the assault on ' child A '.

39. The appellant expressed remorse in his appeal statement and repeated it in his oral evidence, but it cannot be overlooked that his remorse was qualified by a recital of circumstances which he saw as substantial mitigation, The appellant also expressed the view that the incident, in his private life, had no relevance to his ability to undertake risk assessments when working with clients.  

40.  A further aspect of the matter accepted by the appellant, is that he did not report the incident to Brent Council, his employers learned of it in a telephone call from Newham Social Services, which dealt with the matter.  Again, the appellant refers to surrounding circumstances which, if they do not justify withholding the information, according to him make it eminently reasonable for him to have failed to report the incident as he puts it,  ' not on purpose '.

Misconduct

41. The GSCC Code of Practice for Social Care Workers sets out the standards of professional conduct and practice required of social workers.  It warns that the GSCC expects social care workers to meet the code.  Section 2 relates to establishing and maintaining the trust and confidence of service users and carers.  It cites at section 2.1 being honest and trustworthy, at 2.2, communicating in an appropriate, open, accurate and straightforward way and at 2.4, being reliable and dependable.  Section 5 relates to upholding public trust and confidence and in particular prohibits, at 5.8, behaving in a way, in work or outside work, which would call into question suitability to work in social care services.  Section 6 relates to accountability and imports, at 6.3, a duty to inform the employer about personal difficulties which might prejudice competent and safe work.

42. The appellant applied for inclusion in the Social Care Register on the 12th July 2004.  The declaration in his application form contains an agreement to tell the GSCC as soon as reasonably practical about, inter alia, any events which call into question good character, such as a criminal convictions, criminal proceedings or cautions.  It also contains a statement that the signatory has read and understood and agreed to comply with the Code of Conduct for Social Care Workers.

43. So far as the reference provided by ' G ' was concerned, the Tribunal was unanimous in finding it misleading.  The majority view was that the appellant played a significant part in its creation and presentation and that that involved breaches of sections 2.1, 2.2 and 2.4 of the Code of Conduct.  The minority view was that, as it was not shown that the appellant played any significant part in the creation or presentation of the reference, no misconduct could be found against him in that respect.

44. The Tribunal was of one mind in relation to the assault on ' child A '.  It was plainly conduct which called into question the appellant's suitability to work in social care services, not withstanding that it was conduct wholly outside the working environment.  As such, it constituted a clear breach of section 5.8 of the Code.  The appellant's failure to report the resulting caution is a clear breach of the agreement he made in his registration application and a breach of sections 2.1, 2.2 and 2.4 of the Code.  It is likely that the appellant was experiencing personal difficulties of some kind in the period leading up to the assault, he himself recounts in his appeal statement such difficulties in the period after the assault.  While the appellant advances these personal problems as an excuse for not reporting the caution, the Tribunal was inclined to the view that the appellant should have been open and frank about his problems and that his failure to do so was a breach of section 6.3 of the Code.

45. For those reasons, the Tribunal unanimously found the appellant guilty of misconduct, Mrs Wiggin not accepting any misconduct by the appellant in the matter of the reference.

Sanction

46. The Conduct Committee, having found misconduct, had four options.  It could have imposed no sanction, it could have issued an admonishment, it could have suspended the appellant registration for up to two years, or it could have ordered his removal from the register.

47. The gravity of the assault on ' child A ' alone was clearly such that to impose no sanction would have been totally inappropriate. Admonishment, according to the Indicative Sanction Guidance for Conduct Committees 2008, is suitable in cases where the offence is at the lower end of the spectrum of misconduct and where the Committee is confident that there is no risk to the public or to service users.  The Tribunal was of the same view as the Committee that the appellant's conduct in relation to both ' child A ' and the reference was not at the lower end of the spectrum.

48. Suspension is said in the Guidance to be appropriate in cases of more serious misconduct where there is substantial mitigation, often in the form of acknowledgement and remorse with significant insight and hence with a good prospect of the miscreant remedying his failings.  The Conduct Committee found the appellant to have ' deep seated attitudinal problems ' -- a phrase to which he took particular exception and to which the Tribunal will return.  The Tribunal, however, was left in no doubt that the appellant, to a considerable degree, lacked insight and that remedying his failings would be a task which would require some guidance and further training.

49. In the Tribunal's view, the only course properly open to it and to the Conduct Committee in all the circumstances was that of removal from the register.  According to the Guidance it is the appropriate sanction for serious, deliberate acts where there is a lack of insight.  In the Tribunal's view, the appellant’s was just such a case. The GSCC had no power to impose conditions on the appellant's registration.  

50. At paragraph 46 above, the Tribunal refers to the finding of ' deep seated attitudinal problems '.  There were a number of examples of conduct of the kind which might have provoked that finding.

51. In his cross-examination of Ms O'Brien, the appellant launched an attack on her character, repeating allegations made in his letter to the Investigating Officer of 17th  August 2009, suggesting that she had been under investigation and that her character and integrity had been the subject of concerns, if not of complaint.  The appellant's challenge was in general terms without any direct relation to the facts to be considered by the Tribunal and can therefore have been relevant only to Ms O'Brien's credibility.  That however was unnecessary because the appellant did not dispute any of Ms O'Brien's evidence.  She merely recounted ' G’s ' telephone call and subsequent conversation, and the ensuing interview with the appellant, none of which was disputed.

52. The appellant also suggested to Ms O'Brien that four of her subordinates had resigned, three of them being from ethnic minority groups.   He declined to make any allegation of racism, but presented the facts to the Tribunal with the obvious implied suggestion that that was the appropriate conclusion.

53. In relation to both of those matters there was no evidence to support the appellant's allegations against Ms O'Brien and the Tribunal took the view that they should not have been raised as they were.

54. There were other examples of conduct which may betray a tendency to speak without adequate forethought. In his witness statement of the 26th January 2011 the appellant makes the point that the misleading reference provided by ' G ' did not occur in the workplace -- it was provided before he got the job.  While that is obviously technically correct, it is in the Tribunal's view, a point wholly devoid of merit.

55. The appellant also says that the incident with ' child A ' occurred after he had resigned and was, at least to that extent, not associated with his work.  The papers from Newham Borough Council refer to an initial investigation on the 3rd July 2009, suggesting that the incident occurred on the 2nd July 2009.  Newham Borough Council telephoned Ms O'Brien to inform her of the incident on the 6th July.  That was the day of the appellant's interview with Ms O'Brien, he resigned his post by letter dated the 7th July 2009, the day after the interview.  The appellant is therefore wrong in his assertion that the assault on ‘child A ' happened after he had resigned.

56. The basis of the Conduct Committee's finding of ' deep seated attitudinal problems’ is likely to have been in relation to conduct of that sort.  While there may be substance in the appellant's complaint that such a finding should not have been made without a psychological assessment, the appellant's attitude raises concerns about his insight into what conduct is required of a social worker and makes it impossible to consider any sanction other than removal from the register. 

57. That said, there is evidence that the appellant could be a good social worker, capable of forming helpful relationships with the needy and vulnerable. It is to his  credit that he has already and voluntarily undertaken further training.  The Tribunal has already expressed the view that the appellant's attitude problems are not likely to be corrected without guidance and more training in aspects other than those in respect of which he has already undertaken training courses. If the appellant could access such training and if it proves demonstrably successful, he may be in a position to apply to be restored to the register after the prescribed three years.

58. For those reasons, the Tribunal unanimously endorses the order of the GSCC Conduct Committee. 

59. The Tribunal makes a restricted reporting order, under rule 14 of the Tribunal Procedure (First Tier Tribunal) (Health Education and Social Care Chamber) Rules 2008 prohibiting the publication of any matter likely to lead members of the public to identify any child concerned in the matters relating to the appeal.

Accordingly, under section 68(2) of the Care Standards Act 2000, the Tribunal unanimously confirms the decision of the Conduct Committee given on the 20th October 2010 and dismisses the appellant’s appeal.

Andrew Lindqvist
Geraldine Matthison
Christa Wiggin