Andrews v GSCC [2010] UKFTT 232 (HESC)

FTT-HESC
Andrews v GSCC
[2010] UKFTT 232 (HESC) · 2010-05-28
Heard on 21 st May 2010 at North Somerset Courthouse, Weston-super-Mare.The Appellant appeared in person assisted by Mr. Jim Cook, Mendip Citizens Advice Bureau.The Respondent was represented by Mr. Julian Evans of Counsel.

APPEAL

The Appellant appeals against a decision made by the Respondent on 22 September 2009 to remove her name from the Register of Social Workers. The Appeal is made under S68 of the Care Standards Act 2000. It is for the Care Standards Tribunal ("the CST") to endorse that decision or to direct that it shall not have effect: see section 68(2) of the Care Standards Act 2000.

THE FACTS OF THE OFFENCES AND CONVICTION

2. The Appellant qualified as a social worker in 2004 and worked for Essex County Council after she qualified. On the 3 of November 2008 the Appellant was convicted of obtaining property by deception and dishonestly making a false representation. The background to the convictions was that in February and May 2008 the Appellant was interviewed by the police regarding sums of money which she had received from Essex County Council as Direct Payments for personal care for herself as a disabled person. The payments had not been paid to a carer as the Appellant was required to do and she had retained the money herself.3. The Appellant was convicted of the offences, outlined above, in November 2008. The sum of money involved was some £25,000 and the fraud had taken place over two and a half years. In addition the fraud was compounded by the fact that the Appellant had submitted falsified letters and receipts to Essex County Council reviews as evidence of appropriate use of the money. The Judge at the Crown Court took the view that the matters were serious and the Appellant was sentenced to 15 months imprisonment in January 2009. She was released from prison in May 2009 and remained on licence until April 2010.

THE LAW

4. The decision of the GSCC's Conduct Committee was made under S59 of the Care Standards Act 2000 (CSA) coupled with the General Social Care Council (Conduct) Rules 2008.5. Section 59, Removal etc from register of the CSA provides:(1) Each Council shall by rules determine circumstances in which, and the means by which –(a) a person may be removed from a part of the register, whether or not for a specified period;(b) a person who has been removed from a part of the register may be restored to that part;(c) a person's registration in a part of the register may be suspended for a specified period;(d) the suspension of a person's registration in a part of the register may be terminated;(e) an entry in a part of the register may be removed, altered or restored.(2) The rules shall make provision as to the procedure to be followed, and the rules of evidence to be observed, in proceedings brought for the purposes of the rules, whether before the Council or any committee of the Council.(3) The rules shall provide for such proceedings to be in public except in such cases (if any) as the rules may specify.(4) Where a person's registration in a part of the register is suspended under subsection |(1)(c), he shall be treated as not being registered in that part notwithstanding that his name still appears in it.

PROCEDURE OF THE CONDUCT COMMITTEE OF THE GSCC

6. The Conduct Committee operates under the GSCC (Conduct) Rules 2008. This provides that formal allegations are put to the Appellant. In this case the Appellant admitted the allegations. The Appellant had completed a notice to admit facts on 8 August 2009. On the 19 August she signed a notice to say,
“I accept that the acts of obtaining property by deception and dishonestly making a false representation by me and agreed to in the document entitled ‘agreed statements of facts’ constitute misconduct within the meaning of the General Social Care Council (Conduct) Rules 2008.”
7. Once the facts have been admitted or established the Committee, guided by the Indicative Sanctions Guidance (ISG), consider mitigation and the appropriate sanctions if any.

THE EVIDENCE HEARD AND READ

The tribunal had a bundle of papers including pleadings, the transcript of the GSCC hearing, testimonials for the Applicant and details of the crown court proceedings when the Applicant was convicted of obtaining property by deception and dishonestly making a false representation. We heard oral submissions by both parties.The conviction of the Appellant was not in dispute. Nor was the fact that it amounted to misconduct. The Conduct Committee of the Respondent and the tribunal were addressed on two specific issues. Firstly whether the proceedings before the GSCC should have been by way of the health procedure as opposed to the conduct procedure. Secondly on the issue of mitigation and the appropriate sanction in the circumstances of this case. The Appellant considered that a two year suspension was the appropriate sanction in her case.The health issues. The Respondent and the tribunal had psychiatric and Pre Sentence reports prepared for the Crown court proceedings and the tribunal had some further medical evidence concerning the Appellant's treatment for mental health issues since the mid-1990s.The Appellant was born in Romford and initially she trained as a psychiatric nurse. Subsequently she obtained a degree in law and business studies from Keele University. From 2002 to 2004 she trained to be a social worker. In the medical reports it is stated that the Appellant had been married three times, and had a son aged 22 years old. Her third marriage, which began in 1994 had lasted for 15 years and she was divorced in August 2008.She was in this marriage at the time of the offences. She described this man as violent and controlling. Although he was severely disabled she said he exercised a great deal of emotional control over her. The Appellant also reported that her childhood had been disturbing and that she had been abused by her father. She said she had been raped when she was 13 years old and reported being bullied by other children. The Appellant had issues about her weight and eating and had been treated for depression.The GSCC Conduct Rules 2008 provide for a health procedure to be followed at the conduct hearing where the ‘alleged misconduct may have been caused or substantially contributed to by the registrant's physical or mental ill health’. During the pre hearing review by the Respondents and at the conduct committee hearing the issue of the health procedure was addressed by the Respondent and the Appellant. The Appellant was not represented at the conduct committee hearing. She stated that she wished to raise issues regarding health having caused or substantially contributed to the misconduct. However she also went on to say that she wished to proceed with the hearing on 21 September 2009 provided the committee took into consideration ‘ my health and mental health and that it contributed as part of the mitigation but not actually caused the whole behaviour.’The committee decided that it would follow the conduct procedure that stage. The committee noted that the conviction related to dishonesty between June 2005 and March 2008 and it had heard no evidence nor seen any material which supported the contention that the misconduct was caused or substantially contributed to by the Appellant’s ill health.The decision not to follow the health procedure was one reason for the appeal by the Appellant. It was put to the tribunal that the health procedure should have been followed by the Respondent. The Appellant produced a bundle of additional medical documents dating back to 1996. These showed that she was being treated with antidepressants and, for some time between 2006 and 2007 she had a course of psychotherapy. We noted that a later letter dated 18 June 2009 from her consultant psychiatrist in the Linden Centre Chelmsford to her GP in Somerset gave a diagnosis of ‘recurrent depressive disorder, current episode moderate depressive illness.’At the start of the tribunal hearing the Appellant applied for an adjournment so that she could make further efforts to obtain her medical records between 2006 and 2007. She said that it had proved difficult to get the relevant hospitals to release her records. It was her intention, when she had the records to seek to obtain a report to examine whether there could be a causal link between her mental illness and the offences.The tribunal refused the request for an adjournment. It appeared evident to us that the Appellant's legal team had obtained a psychiatric report at the time of the sentencing by the court. There was no suggestion in that report or in the pre-sentence report that there was a causal or contributory link between the Appellant’s mental health difficulties and her offending. The offending began in 2005 and the tribunal did not consider that any further information from the years 2006 and 2007 was going to assist the Appellant or the tribunal in making its decision.The Appellant in her evidence went through the additional medical information before the tribunal and gave a chronology of her treatment which was helpful to the tribunal and indicated that her continuing mental health problems are related to depression. She receives medication for depression. She continues to suffer from physical ailments including arthritis. She is in receipt of 14 hours of personal care per week.The tribunal went on to consider whether the Respondent's Conduct Committee should have proceeded on the basis of the health procedure. The tribunal had read the transcript of the Conduct Committee in its consideration of this point. We noted that the Appellant at the Respondent’s hearing appeared to accept that the Conduct Committee should proceed on the conduct procedure provided they take her health issues into account by way of mitigation. We were aware that the Appellant represented herself so we considered the issue on all the evidence before us. We find on the medical evidence before us and what has been said to us by the Appellant that there was no evidence that the misconduct had been caused by or substantially contributed to by the Appellant's mental ill health. It is certainly a factor in mitigation and that is a matter that we shall now turn to.The Appellant needs to be aware that even if the matter had been considered under the health procedure there might have been sufficient grounds for her removal from the register even if a causal link had been established between her ongoing and long-standing mental health problems and her offending behaviour.Mitigation and the sanction. The Appellant's ex husband is severely disabled. He is blind and confined to a wheelchair; he has a considerable package of care that is provided for him. Part of this was, at the time, paid for by way of the Direct Payment scheme. In 2003 the Appellant was assessed by social care to be in need of care for herself predominantly for rheumatoid arthritis. Returns therefore were submitted to Essex County Council which stated that she had made payment for care under the direct payment provision.In November 2007 the Police were called to an incident of domestic violence at the Appellant’s home. It was alleged that she had assaulted her husband. The Appellant spent some time in hospital. During the investigations by the Police, it became apparent that the Appellant had no carer. The Appellant was arrested on 28 February 2008 and in subsequent interviews it came to light that between June 2005 and March 2008 no payments had been made to carers.As part of the fraud, the Appellant provided quarterly returns which reported to show that a named carer attended to her daily and that she had been paid two hundred pounds which was in excess of the Direct Payment of £180 per week. She used the name and national insurance details of a woman she had interviewed as a possible carer for her husband but not employed. She provided fraudulent invoices in the name of the woman using that person's National Insurance number and forging her signature on the invoices to signify receipt of the cheques and cheque numbers. The cheques were made payable to cash and bank statements provided to the council showed debits with the cheque number. The Appellant confirmed the care at regular reviews and on occasion wrote as the carer to confirm what she alleged the carer was doing. The prosecution put to the court that the offences were a sophisticated and determined fraud which had come to light purely by chance.The Appellant has always maintained that she was legitimately entitled to the Direct Payments that she received from social services because of her own care needs. She says that she used the payments from June 2005 to March 2008 to fund her husband's care since she believed that the amount provided for his care under the Direct Payments scheme was inadequate . She said this was because her husband threatened her and was threatening and emotionally abusive towards. She maintained that the money was used predominantly for her husband.However the pre-sentence report and the judges sentencing remarks indicate that this was not accepted by the court. The judge described the offences as a ‘carefully considered and planned fraud’. He stated that neither the Appellant nor her husband was entitled to the money for their own use and that ‘in these circumstances the only possible course open to this Court is to sentence you to a term of imprisonment.’The tribunal notes that the Appellant strongly relies on her mental health condition. She believes that did contribute to her actions and her criminal conviction. She continues to say that she was entitled to the Direct Payments and that during the time of the fraud she had used them to fund her husband's care instead of her own. Her husband exerted pressure on her to use her care payments to augment his own care and bullied her. She points out that she continues to receive 14 hours of personal care to the present time.In terms of her change of circumstances she says she has divorced her husband and moved away from Essex. She works part-time for a charitable organisation helping people with HIV. The role is similar to that of a social worker but clearly she does not have a social work title.With reference to the indicative sanctions guidelines she says that there was no theft from a service user and she does not feel that she was abusing a position of trust. She says that she has shown remorse and has now in fact repaid the money to the council under a court order.

THE DECISION OF THE GSCC CONDUCT COMMITTEE

28. The Committee noted in its decision letter dated 22 September 2009:The Committee must take into account the following four factors when determining sanction:1. the seriousness of the Registrant's Misconduct;2. the protection of the public;3. the public interest in maintaining confidence in social care services;

and

4. the issue of proportionality."29. The Committee then recorded its decision as follows:The Committee decided to make an order for the removal of the Registrant's registration from the register.The reasons for the Committee's decision were as follows:1) the Council submitted that there were a number of aggravating features in this case. In particular the council points to the high value, the high-frequency and the planned nature of the dishonesty as aggravating the misconduct. The Council referred to a number of paragraphs from the Code of Practice when highlighting the incompatibility of the Registrant's continued registration. The Council submitted that the misconduct was towards the higher end of the spectrum and that the only appropriate sanction was removal from the register.2) The Council heard evidence from the Registrant, some of it in private session, and read a number of documents submitted in support of the Registrant including a medical report pre-sentence report and testimonials. The Registrant pointed to the fact that the dishonesty was unrelated to her work, that she has demonstrated insight into her behaviour and changed her behaviour as a result and that she did not deliberately target vulnerable individuals as mitigating factors.3) The Committee took into account in favour of the Registrant the positive testimonials, her clean disciplinary record, her commitment to the profession, the work that she has done through the New Deal with the local Citizens Advice Bureau and her recent employment as an outreach worker, her remorse and personal background.4) However the offences of dishonesty were serious. The sentencing Judge found as a fact that the offences were committed over a period of 2 1/2 years, that this was a carefully considered and planned fraud upon the local authority involving the submission of false financial information in order to maintain the pretence that funds were being used to pay for carers when they were not. The fraud amounted to over £25,000 and the Judge found that the registrant was not entitled to have that money.5) The Codes of Practice govern all social workers. Paragraph 2.1 required the Registrant to be honest and trustworthy and paragraph 5.8 required the Registrant not to behave in a way in work or outside work which would call into question her suitability to work in social care services.6) The Committee noted that the Registrant remains on licence until April 2010 (i.e. when her 15 month custodial sentence expires). Many users of social care services rely on local authority benefits and are likely to view the Registrant's misconduct with particular concern. The Committee considered that the nature and degree of the dishonest conduct by the Registrant was fundamentally incompatible with continuing to be a registered social worker.7) Bearing in mind all of the above committee concluded that suspension was inappropriate and that removal was the only suitable order. In particular the Committee considered that such an order was necessary in order to maintain public confidence in social care services and was the only proportionate order to make in the circumstances.

CONCLUSION AND DECISION

30. The tribunal heard mitigation from the Appellant in similar terms to that which she had given to the Respondent. We noted in particular her continuing work with the charitable body and her work with the CAB. Both had supplied references for her. We were mindful of the testimonials and character references which she had supplied. She has made considerable efforts to change her life since her offending behaviour by the divorce from husband and her move to a completely different part of the country. The tribunal gives credit to the Appellant for her continuing work and in her own words in ‘trying to pay back to others in some respects.’31. The Appellant provided a number of cases concerning disciplinary proceedings by other professional bodies where members of the respective professions had been involved in financial fraud or other misconduct and where a sanction of suspension , as opposed to removal, had been imposed. We noted them but did not consider that they assisted us in this decision. We read a decision by this tribunal (Mnene v GSCC [2007] 1063.SW). In this case a social worker had received benefits fraudulently and was sentenced to 9 months imprisonment. She also failed to disclose information to prospective employers. The tribunal upheld the decision by the Respondent of the removal of Ms Mnene from the register. The Appellant argued that this case was more serious than her own. We do not accept that argument.32. We were also referred to a recent GSCC decision of Wrenn. In that case a social worker had falsely claimed four thousand pounds in relation to travel to work payments. He was discharged conditionally for two years by the court. The Respondent suspended the social worker for two years. We consider the offences in this case are more serious.33. Further, the tribunal were concerned in this case that the Appellant continued to seek to excuse her behaviour and maintain her entitlement to payments to which she was clearly not entitled. During the course of the offending, whilst at work, the Appellant had attended a course on benefits entitlement and other community care courses. She was aware of the regulations and rules in respect of benefits claimed by her and her husband. In the course of the offending the Appellant was defrauding her own employers (Essex CC) and was directly deceiving professional social work colleagues in so doing.34. In support of her contention that a two year suspension would be an appropriate sanction, the Appellant said that she had spoken to a number of Directors of Social Services who had indicated that a period of suspension would be a suitable sanction. The tribunal notes this view but does not agree with it.35. The Appellant is aware that she can apply to be restored to the register in three years.36. We have quoted the decision of the Respondent at some length and, attach the indicative sanctions guidance for dishonesty, to this decision. We have read and listened to the evidence. Having been addressed by both sides on the circumstances of offending, the Indicative sanctions guidance, and the mitigation we agree with the decision of the GSCC. The Appellant, whilst working as a social worker, has recently been convicted of offences of dishonesty relating to care payments and sentenced to 15 months in prison.37. In our judgment, removal from the register is a proportionate decision by the Respondents. We confirm its decision.APPEAL DISMISSED.

Our decision is unanimous

Maureen Roberts

Brain Cairns

Graham Harper

28 th May 2010

SCHEDULE FROM ISG for GCSS

DISHONESTY – FRAUD/THEFT

Mitigating Aggravating

Factor factor

Direct theft from service user No Yes

Abusing position of trust No Yes

Implications of actions minor Direct evidence

of harm

(e.g. from other resulting in reduced funding

for service user care)

Location outside work at work

Value of property stolen Low High

Frequency of actions

(including previous history) Low High

Method Minor Aggravated

(e.g. violence, threats, working with others)

Planned Opportunistic Highly prepared

Remorse Paid back No insight

Deliberate targeting of vulnerable No Yes

Done to feed drug habit No Yes

Intent Small scale Large scale

(ie how much did they intend to steal)