Kapetanakis v The General Social Care Council [2009] UKFTT 174 (HESC)

FTT-HESC
Kapetanakis v The General Social Care Council
[2009] UKFTT 174 (HESC) · 2009-07-29
[1]Vasili Kapetanakis v The General Social Care Council [2009] UKFTT 174 (HESC) (29 July 2009) Schedule 6: Social workers/social care workers Cancellation of registration Vasili Kapetanakis v General Social Care Council 2009 [1483.SW] Before Mr Laurence Bennett (Tribunal Judge) Ms Caroline Joffe Ms Margaret Halstead Heard: 22 July 2009 at 18 Pocock Street, London Appeal: Mr Kapetanakis appeals under Section 68 of the Care Standards Act 2000 against the decision of General Social Care Council (GSCC) to remove him from the Social Care Register as his registration has lapsed. Attendance: Miss Rupa Sharma, a solicitor with the GSCC appeared on their behalf. Mr Vasili Kapetanakis appeared in person. Evidence Presented: Mr Kapetanakis' registration as a Social Worker fell to be renewed on 10 October 2008. A renewal pack with application form was sent to him by GSCC on 17 July 2008. Miss Sharma stated this was sent to provide some eight-four days for renewal.[2]Mr Kapetanakis stated that he contacted the Council by telephone in August 2008 to "Gain clarity of who could endorse the application in my circumstances" as he found "the guidance that the Council provides as to who can verify and endorse the renewal applications for self employed practitioners is actually unclear." This is disputed by Miss Sharma as the GSCC does not have a record of this contact. Mr Kapetanakis does not consider that GSCC records in general are comprehensive or accurate and suggested errors that might have been made in noting the conversation.[3]Mr Kapetanakis said that as a result of the advice he was given, in the August 2008 call, particularly that it would be inappropriate for his Clinical Supervisor to endorse his application; he endeavoured to make other arrangements. He asked his professional organisation NAGALRO whose administrator told him that the Organisation could not assist. Mr Kapetanakis discussed the problem with other independent Social Workers on a Googlemail forum.[4]Mr Kapetanakis telephoned the GSCC on 8 October 2008 two days before expiry of his registration when he was advised by Mr Warrington that he could approach a recruitment agency for endorsement of the application. He was told that he could have an extension to the period for submitting his renewal and that his registration would remain active on line until further notice. This was not confirmed in writing.[5]On 20 January 2009 Mr Kapetanakis received a letter from GSCC giving two weeks to submit an application, failing which, the process of cancellation would begin.[6]Mr Kapetanakis provided a copy of an email dated 5 February 2009 which includes:
"…….I appreciate the few months grace you have given me. I am still however facing difficulties in getting someone to endorse my renewal because of my employment status. You had suggested I approach someone who has commissioned my services and I am still pursuing that option. I had suggested using a senior social work colleague who oversees my professional development to endorse my renewal but this was not something you could accept. I did approach a social work agency that commissioned my services but they were going to charge for renewing my application. I also approached NAGALRO to request they endorse my application but this is something they do not do although they will consider this in the future. I have gained whatever confirmation of training completed in the last 3 years that I could and have completed the renewal form …….."
[7]Mr Kapetanakis said that during the period until November 2008 he took steps to obtain his training record from his previous employing local authority but it was not readily available. Whilst he had details of courses undertaken, he did not have verification that could be produced to an endorser. This became available around November 2008 from Miss Bowland, his Clinical Supervisor.[8]Mr Kapetanakis explained that he felt that he might be able to approach London Borough of Ealing for whom he was carrying out work to endorse his application but he should allow a suitable period of experience with that Authority. This contributed to delay in completing his application for which he accepts he was culpable.[9]Mr Kapetanakis' 5 February 2009 email requested:
"That you provide me with an extension and that you do not remove me from the register."
He also telephoned and spoke to an officer who refused a further extension of time for renewal but advised he could use his Clinical Supervisor to provide the necessary endorsement.[10]Mr Kapetanakis stated that when it became clear that Miss Bowland, his Clinical Supervisor could verify and endorse his application, she was employed by London Borough of Hammersmith & Fulham, his former employer. Since then her relationship with the Authority has been affected by a contractual dispute, which he believes impacts on her ability to endorse any application to restore him to the register.[11]Mr Kapetanakis submitted his completed application form by registered post. However, this was returned by the GSCC on 26 February 2009. The letter returning the form included "Thank you for sending your renewal application to the General Social Care Council (GSCC). We have now made an initial examination of your application but unfortunately we are unable to go any further because some information is missing." "Please complete the appropriate sections of your application form and/or provide the documents as identified below and return to the address shown at the top of this letter as soon as possible. Please make sure you include your application along with any relevant documentation and this will enable us to continue processing your application. If your current period of registration has expired, please ensure that all documentation is returned to us within 14 days to avoid being removed from the Social Care Register. Personal declaration - information required: not signed - dated."[12]Mr Kapetanakis was removed from the GSCC register on 20 March 2009 in accordance with Rule 9(2)(a).[13]Mr Kapetanakis travelled to South Africa on 21 February 2009 to visit family and did not return until 20 March 2009. He was not aware of the return of his application until 20 March 2009 which was also the date GSCC sent notification that he had been removed from the Register. Submissions:[14]Mr Kapetanakis does not consider that requirements for renewal, in particular for endorsement are practicable for fully independent Social Workers who may encounter the difficulties he and others have experienced.[15]Mr Kapetanakis does not consider GSCC records accurate or reliable as they do not include a note of his August 2008 contact requesting advice relating to endorsement. Records of his other contact have curtailed detail.[16]Mr Kapetanakis considers he was misled by the advice given on 8 August 2008 which caused substantial delay in submission of his application although he accepts some delay arose from the time he took to assemble necessary information.[17]Mr Kapetanakis considers that the returned application form on 26 February 2009 should have been sent by registered post so that GSCC would have been aware of its non receipt and taken steps to contact him because of its importance. He submits that the 7 th principle of the Data Protection Act 1988 and para 3(a) of the GSCC's Registration Rules impose a requirement that they should have taken this step.[18]Mr Kapetanakis submits that cancellation of registration is a disproportionate response in the circumstances and it has had a disproportionate effect on his career. The defect in his February 2009 application form was an oversight and not an issue relating to conduct.[19]Miss Sharma does not accept on behalf of GSCC that incorrect or confusing advice was given nor can she agree contact was made by Mr Kapetanakis during August 2008. She submitted that GSCC records are complete and contemporaneous. She highlighted inconsistencies in Mr Kapetanakis' account of what happened and his reluctance to progress verification with other agencies, in one case because a fee was requested.[20]Miss Sharma submitted there is no regulatory requirement upon the GSCC to return documentation by registered post nor would it be possible or proportionate bearing in mind the size and nature of its administrative task. She stated that the "routine correspondence" in this case could not be considered a formal notice to which GSCC Regulation in relation to service of proceedings apply. She does not accept that the notification of the requirement to return the completed form within fourteen days could be considered a notice. She considers that the Data Protection Act 1998 principles do not infer a requirement to return the incomplete form by registered post or that any Data Protection issue arose in that any confidential material was unsecure or lost. She submitted it is for an applicant to advise if they are to be absent and make his/her alternative arrangements for their mail.[21]Miss Sharma submitted that a more enquiring or active role by GSCC would be disproportionate and bearing in mind it is open to Mr Kapetanakis to apply for restoration by application to join the Register, the overall effect of cancellation is not disproportionate. She submitted that the cancellation was consistent with the GSCC's duties to maintain the register. GSCC had acted with appropriate discretion, a renewal pack was sent out eighty-four days before expiry and extensions were given. The Law: The rules on the registration of social workers are now set out in the General Social Care Council (Registration) Rules 2008. Rule 6(1) provides: (a) "Subject to the removal from the register in accordance with the Council's Conduct Rules or Rules 8 and 9 of these rules, and subject to paragraph (4) below the registrant's entry in the register shall remain effective (a) where the registrant is a social worker, either for three years from the date of granting the application for registration by the Council; Rule 6 (3) provides; "no less than 28 days before the expiry of the period referred to in paragraph 1(a) above, the Council shall send to the address of the registrant, as it appears in the register; a) a notice of expiry of the registration; b) an application form for a renewal of registration Rule 6(4) provides:
"Not withstanding paragraph 1(a) above, a registrant's registration shall not lapse if; (a) the registrant makes an application for renewal before the end of the period specified in that paragraph; Rule 7(2) provides: "
Where an application for a renewal of registration is granted by the Council, the registrant's entry in the register will be affective for a further period of 3 years, subject to removal in accordance with the provisions of these rules or the Council's conduct rules. Paragraph 9(2) provides: "Where – (a) the registrant has failed to make an application for renewal of registration or to pay the renewal fee set out in schedule 2 of these Rules before the expiry of the three year period specified in Rule 6(1)(a) above, the Council may remove the registrant's entry from the register. Conclusions: A. It is clear from Rule 9(2)(a) that GSCC has a discretion whether or not to remove Mr Kapetanakis from the Register. It is clear from the undisputed elements of the chronology that it exercised discretion and allowed time for renewal of the registration beyond its expiry. B. Whilst there is dispute whether Mr Kapetanakis sought advice from GSCC in August 2008 and reliant on that advice pursued enquiries relating to his application, we accept he attempted to compile information leading to the acceptable endorsement he understood was necessary. This appears to have taken some considerable time. Although Mr Kapetanakis explained this required records from his previous employers, bearing in mind his continuing contact with his Clinical Supervisor, still within the Authority, we are surprised this caused a significant delay. C. Despite these delays it is common ground there was a further reminder by GSCC ending what was considered an indefinite extension by requiring a completed application to renew registration within fourteen days. It is unfortunate Mr Kapetanakis' application was unsigned. It was clearly submitted and received within that extension but subsequently and promptly returned. It did not go astray; it was returned to the address that Mr Kapetanakis gave. Mr Kapetanakis was away but GSCC could not have known this as he did not tell them despite the importance to him of the application and the short period he had to apply within the deadline imposed. He was aware of the length of his proposed absence at the time he left. D. Mr Kapetanakis suggests that whether by registered post or otherwise, GSCC should have taken steps to verify he received the returned application. We do not find this to be their responsibility. We do not accept the letter returning the form contains a formal notice but find that it emphasised administrative requirements arising from the obligation to register before expiry, already known to Mr Kapetanakis. Mr Kapetanakis may consider the Data Protection Act imposes requirements for return by registered post; we understand he has made a complaint to the Data Protection Commissioner but have no details of the issues put before him. For the purposes of this appeal we do not understand that the Act imposes such obligation nor would we find it usual, appropriate and reasonable for this correspondence. Even if sent by registered post, we do not consider GSCC would be required to make further enquiries. E. We find it is Mr Kapetanakis' own responsibility to ensure he was registered to comply with the requirements of Care Standards Act 2000, Section 61. We consider Mr Kapetanakis' personal responsibility extends to ensuring registration and his record keeping is sufficient for him to comply with the statutory scheme prior to expiry or within any extension granted. We do not accept that any telephone advice alleged and ensuing long delay is sufficiently explained or justification for the failure to submit an appropriately completed renewal application or for the exercise of discretion to continue on the Register so long after expiry. F. We conclude it was appropriate for GSCC to have cancelled registration on the grounds of non renewal. We do not consider this was disproportionate. GSCC were not in possession of a completed application form having given ample opportunity for its return and having had contact from Mr Kapetanakis on several occasions. They had no exceptional reasons or obligation to enquire why he had not resubmitted the application having found it wanting. G. We do not consider cancellation disproportionate. Whilst it clearly has an effect on Mr Kapetanakis' ability to practise as a Social Worker and upon his work at the time of registration, this would be inevitable in respect of any cancellation. The remedy is straightforward, reapplication to GSCC for registration. Mr Kapetanakis has not done this so far but his reasons are a matter for him. His non availability as a Social Worker has been extended by his inactivity. The GSCC is required by Statute to maintain a register of Social Workers. The GSCC's administrative steps were consistent with that requirement and in each case reflected the needs of a process to ensure the register is up-to-date. We do not consider any particular step disproportionate, whether imposing a deadline for renewal or the return of an incomplete form. The consequence, removal from the Register is proportionate for someone who has not renewed. It is clearly in the public interest that GSCC is able to carry out its substantial administrative tasks in a business like manner. Order Our decision is that Mr Kapetanakis' appeal is dismissed. Mr Laurence Bennett (Tribunal Judge) Ms Caroline Joffe (Specialist Member) Ms Margaret Halstead (Specialist Member) Date: 29 July 2009