Steel v General Social Care Council [2009] UKFTT 214 (HESC)

FTT-HESC
Steel v General Social Care Council
[2009] UKFTT 214 (HESC) · 2009-03-10
[1]This is an appeal against a decision of the Registration Committee of the GSCC, dated 10 th March 2009, to refuse the appellant’s application for inclusion on the Social Care Register. On 27 th May 2009 the appellant lodged an appeal against that decision, to this tribunal.[2]He did not specify in his appeal form whether he wanted there to be an oral hearing of his appeal, but the respondent indicated that they were content to proceed on the basis of the written evidence and submissions.[3]On 22 nd June 2009 His Honour Judge Pearl decided that in the absence of any request for an oral hearing, the tribunal was able to deal with the matter on the papers alone, in accordance with Rule 23(1)(b), and would do so unless the appellant requested an oral hearing within the next ten days. No such request having been made, the tribunal proceeded to deal with Mr Steel’s appeal on the basis of the papers alone on 1 st September 2009. The Law[4]Applications for inclusion on the Social Care Register are governed by The General Social Care Council (Registration) Rules 2008.[5]Rule 4(3) states that: (a) The Applicant shall provide in connection with the application...evidence as to the Applicant’s i. good character, as it relates to the Applicant’s fitness to practise the work expected of a social worker... ii. good conduct[6]Rule 14(2) states that: When the council is not minded to grant the application, it shall refer it to the Registration Committee.....[7]Rule 19 states that: Where facts are in dispute the Registration Committee shall decide the facts on the civil standard, applying the balance of probabilities.[8]Rule 20(16) states that: The Registration Committee may –a. grant the application for registration...b. refuse the application for registration...c. impose conditions on the registration for a specified period...[9]Rule 20(19) states that: In exercising its powers...the Registration Committee shall act in accordance with the principle of proportionality.[10]The GSCC also provides a Code of Practice for its members. Part 2 of this 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 trustworthy2.2 Communicating in an appropriate, open, accurate and straightforward way[11]S58 of the Care Standards Act 2000 states that: (1)In the case of an application (to register), if the Council is satisfied that the applicant – (a) is of good character.......... 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.[12]This tribunal is empowered to hear appeals against decisions of the GSCC by virtue of s68 of the Care Standards Act 2000 which states that: ............. (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 – (c) to direct that any such condition as it thinks fit shall have effect in respect of that person. Burden and Standard of Proof[13]The burden of Proof is on the appellant. It is his responsibility to demonstrate that he is suitable for registration. The standard of proof is the civil standard, namely balance of probabilities. Factual background[14]The appellant is aged 49. Over the course of his working life he has had a number of jobs in the field of social care, working in an unqualified capacity. He decided to follow a course of study and training with the Open University and on 6 th December 2005 he was awarded a Diploma in Social Work. This made him eligible to apply for his name to be included on the GSCC Social Care Register.[15]He completed the appropriate application form, dated it 18 th May 2007, and sent it to the GSCC. Section 6 of that form asks:
“ Is there a current disciplinary finding against you?”
Mr Steel ticked the box marked “No”. At the end of the form he signed a declaration which included the words:
“I agree to tell the General Social Care Council as soon as reasonably practical about....” and there followed a list which included ...”any disciplinary action taken against me.”
[16]On 4 th October 2007, Greg Sant, a GSCC investigating officer who had been processing Mr Steel’s application, wrote to him. In his letter he said he had received information from one of his previous employers, Progressive Care Ltd. They said he had been dismissed from their employment on 15 th December 2005, on the grounds of gross misconduct. He had appealed against the dismissal but his appeal had failed and the dismissal had been confirmed on 4 th January 2006. Mr Sant asked Mr Steel to explain why he had not disclosed this information on his application form and to “ provide any other information in mitigation of your dismissal.”[17]Mr Steel replied in a letter dated 16 th October 2007. In it he set out in some detail his version of the circumstances surrounding the dismissal, but he did not explain why he had not mentioned it on his application form.[18]He submitted a second application form dated 10 th January 2008. This time he answered “Yes” to question 6. He gave the reason for the disciplinary action as:
“Inappropriate use of IT system.”
[19]The GSCC considered his application in the light of this, and other matters, and on 14 th August 2008 they referred his application to the Registration Committee, recommending that he be refused registration. On 28 th August the clerk to the Registration Committee duly wrote to Mr Steel informing him of the referral and of the reasons given by the GSCC in support of their recommendation. These included the fact that:
“ You did not disclose on your application form that you were dismissed from your employment with Progressive Care, for gross misconduct, on 15 th December 2005”
. The letter went on to say that in so doing he had not adhered to sections 2.1 and 2.2 of the Code of Practice. (See paragraph 10 above).[20]The Registration Committee first met to consider the matter on 25 th September 2008. Mr Steel asked them to adjourn to give him an opportunity to make oral representations to them. They agreed to his request and adjourned to December 2 nd . On December 2 nd they adjourned again, so that further necessary information could be obtained.[21]Finally, on March 10 th 2009 they met and considered his case. They heard oral submissions from Miss Rupa Sharma, Presenting Officer for the GSCC, and from Mr Steel. Mr Steel was also questioned by members of the committee and their legal adviser, about his reasons for failing to disclose on his application form the information about his dismissal from Progressive Care.[22]Having heard his explanations they found that his account:
“lacked clarity, consistency and credibility”, and “on the balance of probabilities felt that he knew that the dismissal was information relevant to this application and had chosen to withhold that information.”
In their view this contravened the requirements, set out in sections 2.1 and 2.2 of the Code of Practice. They found that he “had not satisfied the Committee that he was of good character and conduct sufficient for registration purposes.” Reasons given by the appellant at the hearing for his failure to disclose the information[23]The papers before the tribunal included a transcript of the hearing before the Registration Committee, marked “Transcript of the shorthand notes of UK-Verbatim”, and also a bundle of documents made available to the committee for that hearing. There has been no suggestion that the transcript is not accurate and we therefore rely on it. Mr Steel’s explanations to the Registration Committee as to why he did not disclose his dismissal from Progressive Care are set out in the transcript.[24]Members of the committee and their legal adviser questioned Mr Steel about his state of mind at the time of filling in his application to register. However, this was difficult to ascertain because it was not clear when he had actually done this. Although the form was dated 18 th May 2007, he said he had initially filled it out in 2005, after he had gained his Diploma in Social Work. He said that at that time he was in the process of appealing against the dismissal and that was why he had not included the information. He had then put the form on one side and had not sent it off until May 2007. When asked why, if he had completed the form in 2005, he had included information about a conviction for drink driving in January 2007, he was unable to give a satisfactory answer. His information about dates was generally vague and sometimes contradictory.[25]He went on to say that the forms were confusing and that he had not intentionally failed to disclose the dismissal. He said:
“I will be quite honest, I do not always read every part of a form, especially a complicated form.”
[26]He then proceeded to explain to the committee why he believed that the dismissal had been unfair. Progressive Care had accused him of accessing pornographic material on the internet. Despite his denials there had been a police investigation and his name had temporarily been included on the PoCA (Protection of Children Act) and the PoVA (Protection of Vulnerable Adults) lists. In the event, no charges were made and his name was removed from both lists. However, the allegations had led acquaintances to brand him as a paedophile and he had been the victim of some unpleasantness. All this had caused him a great deal of distress and he also believed that it had contributed to the breakdown of his marriage. He remained angry and aggrieved by what he saw as his unfair treatment by Progressive Care. He did not accept their decision to dismiss him, or the result of his appeal against that decision.[27]He was asked by a member of the committee if the reason why he had not disclosed the information was because he did not agree with it. He answered, “I would say that, yes.” Later, when the committee’s legal adviser put it to him that “ You did not put it in because you did not agree with the finding that had been made?” he replied, “Yes”. The Appellant’s “Reasons for Appeal”[28]In addition to the explanations given at the hearing Mr Steel’s set out his reasons for appealing against the decision of the Registration Committee on his application form to this tribunal. They can be summarised as follows: i. The committee should have taken into account his health during the two year period over which he completed the form. He was suffering from “depression and reduced mental health, brought on by the accusations made by Progressive Care and the subsequent breakdown of my marriage.” He also refers to “his physical and mental condition at the time.” ii. They should have taken into account “any subsequent good practice after that date, which was supported by references from employers.” iii. The way in which the form was worded was confusing, especially “given my state of mind and diminished mental capacity at that time”. He said that although he had considered including the information about the dismissal when completing it he was unsure as to whether or not to do so. Having consulted the guidance on the GSCC website he had come to the conclusion that it was not required. iv. He had corrected the error by sending an amended form and had co-operated fully with the GSCC thereafter, demonstrating that he was in fact “ honest and trustworthy” and was “communicating in an appropriate, open, accurate and straightforward way”, as required by the Code of Practice. v. The committee should have taken into account: his “previously unblemished work history”; his “subsequent work within the social care area”; “proof that the allegations against me were unfounded”; and his “continued commitment towards others socially discriminated against.”[29]Finally, he asked the tribunal to consider other options, rather than “simply refusing my registration.” Findings[30]Most of Mr Steel’s grounds of appeal relate to matters which he believes the committee failed to consider and should have considered, when reaching its decision. In fact, the GSCC did consider (iv) above, when they decided to make the referral to the Registration Committee. On page 13 of their Notice of Recommendation to the Registration Committee they included “points for and against the applicant’s suitability to register”. They noted, in his favour, that:
“Although the applicant did not disclose, in his application form to the GSCC, his dismissal from Progressive Care...., he has been co-operative since the GSCC began their investigation.”
[31]Mr Steel complains that consideration was not given to his mental state at the time of completing the form. In his Reasons for Appeal he says that, “I attempted to explain to the Registration Committee that the application form was completed over a period of 2 years and that during that period I was suffering from depression and reduced mental health” and later referred to his “diminished mental capacity at that time.” However, at no point in the transcript is there anything to suggest that he had told the committee about any mental health problems. He only said that “that particular period of my life was very traumatic”. There is a reference to earlier mental health problems set out in a letter dated September 21 st 2008, sent by Mr Steel to the GSCC. He wrote that, “I no longer require psychological support and have been discharged from Barnsley General Hospital.” However, he has produced no medical evidence in respect of the mental or physical ill health he now refers to. We therefore find that this was not, and is not a matter which either the committee or this tribunal can take into account. In any event, if he was indeed so unwell at the time of filling in the application form as to be suffering from a “diminished mental capacity”, this was something else he should have disclosed to the GSCC when he applied to register.[32]In relation to his claim that the GSCC should have taken into account his subsequent good practice after the dismissal he refers us to “references from employers”. We, however, were provided with only one reference. This was an undated, unsigned reference. At the bottom of the reference the name “Nawal Taha”, and the word “Director” were typed. The reference was not on headed paper and did not give the name of the organisation of which Nawal Taha was the director. Although no date is given it refers to a period of six months, beginning in August 2008, during which Mr Steel worked for them, apparently on an agency basis. The writer says that at the time of writing the reference Mr Steel was working with “asylum young people”. He said that Mr Steel was:
“very understanding, shows empathy and is a good communicator“, and that his line manager would “employ him as a social worker without hesitation.”
[33]Other material in the bundle was less positive. Part of Mr Steel’s period of employment with Progressive Care was a work placement which formed part of his OU course. We saw a letter from Margaret Harries, Company Manager of Progressive Care, to Denise Foster, Social Work Tutor at the OU, dated 14 th December 2005. In contrast with the reference from Nawal Taha it is signed, dated and on headed paper. In it she refers to his “excellent skills in working with young people who had quite challenging behaviour” but also sets out a number of significant concerns she has about his practice.[34]We also saw an email from Rachel Clarke, a Service Manager at Rotherham Council, who had employed Mr Steel as a residential social worker between 1995 and 2003. It was sent in response to a request from Greg Sant, who was trying to help Mr Steel to find a suitable person to endorse his second application to register. In it Ms Clarke states that:
“In October 2003, Mr Steel’s conduct gave considerable concern and at this time he was not fit to practise.”
[35]It would not be fair or reasonable to take account of the good reference and to ignore the less favourable comments of others. In deciding whether or not Mr Steel is suitable to be registered as a social worker, neither the GSCC, nor this tribunal, can ignore the views of past employers. Furthermore, the weight which the tribunal attaches to the reference of Nawal Taha is lessened by the fact that it is unsigned, undated and on unheaded paper and that it relates to a relatively short period of employment.[36]In relation to his claim to have an “unblemished work record”, we do not, on the evidence before us, accept this assertion. On the contrary, previous employers have expressed concerns about his practice. If there is evidence to contradict this, he has not provided it. Similarly, while he may well have shown a “continued commitment towards others socially discriminated against”, he has not provided any independent evidence of this.[37]We agree with Mr Steel’s complaint about the confused wording of the form. Question 6 refers specifically to any current employment disciplinary finding, which could be interpreted so as to exclude past findings, as in Mr Steel’s case. We find the wording of the declaration at the end of the form similarly unclear, (see paragraph 5 above) since it refers to an obligation to inform the GSCC of any future disciplinary action. At no point on the form is there any clear reference to the obligation to disclose past disciplinary action. Indeed Ms Sharma, the GSCC’s presenting officer, conceded at the oral hearing that the wording was unclear, particularly in relation to Section 6.[38]However, we do not accept that this was his reason, for Mr Steel’s failure to disclose the information. Had that been the case he would have said so when first asked to explain his omission in Greg Sant’s letter of October 4 th .[39]Mr Steel gave a number of different reasons for the non-disclosure at the oral hearing. Initially he said that he had omitted the information because he was in the process of appealing the dismissal. Then he said it was because he had been confused by the wording, and then that he had simply failed to read the form carefully enough. Finally he conceded, in response to questioning, both from a member of the committee and from their legal adviser, that he had in fact chosen not to include the information because he did not agree with the reasons for the dismissal. He remained angry with Progressive Care, believing them responsible for causing him a great deal of distress. Taking into account the inconsistency of his previous answers, followed by his clear and repeated admissions, and in the context of his strongly held view that he had been unfairly treated, we find that he deliberately withheld the information believing that it would harm his application, thus adding to the injustice he believed he had already suffered.[40]Having read the transcript of his evidence to the Registration Committee we also agree with their finding that his explanations lacked “clarity, consistency and credibility”. Decision[41]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. Clearly, if the GSCC is not provided with full and frank information about an applicant for registration they are unable to know whether or not that person is suitable to be a professional social worker. They cannot take into account mitigating factors or subsequent good practice if they are not informed about any problems in the first place. Neither can the public be confident about the suitability of those to whom the GSCC grant registration if this is done on the basis of incomplete information.[42]We accept that the form was confusingly worded, but Mr Steel eventually admitted that this was not the reason why he had failed to include the information. It simply provided him with an excuse which he himself knew was not genuine. In fact he deliberately and knowingly withheld important information when completing his application form. There are no conditions which we could impose which could remedy this. Had the truth not been discovered and his name been included on the register, it would have been on the basis of a deception.[43]All this makes it clear to us that he has not shown himself suitable for registration. We therefore agree with the decision of the registration committee and accordingly we dismiss his appeal. Appeal Dismissed Ms Andrea Rivers Mrs Jennifer Cross Mrs Margaret Williams 15 September 2009