Bains v General Social Care Council [2010] UKFTT 641 (HESC)

FTT-HESC

Bains v General Social Care Council

[2010] UKFTT 641 (HESC) · 2010-04-29

The Appellant, Mr Bains, was represented by Mr Allan Norman of Celtic Knot, Solicitors. Mrs J Rees-Bains, the Appellant’s wife, attended the hearing to give oral evidence.

Ms Vivienne Tanchel of Counsel represented the Respondent, who produced no witnesses.

APPEAL

1. Mr Bains (the Appellant) appeals under section 68 of the Care Standards Act 2000 against the decision of the Registration Committee of the General Social Care Council (‘the Respondent’) made on 29 th April 2010, to refuse his application for renewal of registration as a social worker and therefore to remove his name from the Register of Social Workers.

Restricted Reporting Order

2, The Tribunal made a direction under Rule 14 (1) of The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (‘the 2008 Rules’) prohibiting the disclosure or publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matters likely to lead members of the public to identify the service users who provided witness statements in this appeal. The order extends until the time for appeal has expired or if an appeal is made until further order of the Upper Tribunal but, subject to such order, shall continue indefinitely.

THE LAW

3. Under section 56 of the Care Standards Act 2000 (“the Act”) the Respondent maintains a register of social workers. Section 58 allows the Respondent to grant or refuse registration to individuals who apply to be on the Register. The primary purpose of the Act, and therefore the Tribunal on an appeal, is to safeguard vulnerable members of the public. To that end, section 64(2) of the Act states that the duties of the GSCC are to promote(a) high standards of conduct and practice among social care workers; and

(b) high standards in their training.

4. Section 58(1) of the Care Standards Act 2000 provides that, if the Council is satisfied that the appellant is(a) of good character;

(b) is physically and mentally fit to perform the whole or part of the work of persons registered in that part of the register to which his or her application relates; and

(c) satisfies certain conditions, including “any requirements as to conduct and competence” which the Council may by Rules impose, it shall grant the application for registration, either unconditionally or subject to such conditions as it thinks fit. In any other case, the Council shall refuse the application.

5. Applications for inclusion on the Social Care Register are governed by The General Social Care Council (Registration of Social Workers) Rules 2008 (“the 2008 Rules”). These Rules set out the application process and the considerations for the GSCC and its Registration Committee. Rule 7(4) provides that the GSCC shall only grant an application to renew registration where:(a) It is satisfied that the Appellant has satisfactorily fulfilled any condition or conditions attached to the Appellant’s registration; and

(b) It has received satisfactory evidence of an Appellant’s — i) Good character; ii) Good conduct; iii) Physical and mental fitness to perform the whole or part of the work of a social worker; and iv) Competence

and (c) It has received satisfactory evidence that an Appellant has completed the post registration training and learning requirements set out in Schedule 3.

Evidence of good character needs to include endorsements from an employer or, where self employed or not employed, another acceptable person.

6. Under Rule 14(2) where the GSCC is not minded to grant the application, it must refer it to the Registration Committee. This is an independent body composed of either 3 or 5 members, with a lay majority. One of the members has relevant experience of the appellant’s area of practice. Under Rule 19, where facts are in dispute the Registration Committee must decide the facts on the civil standard of proof, applying the balance of probabilities.

7. By Rule 20(16) the powers of the Registration Committee are either to grant or to refuse the application for registration or impose conditions on the registration for a specified period. In exercising its powers the committee has a duty under Rule 20(19) to act in accordance with the principle of proportionality.

8. The GSCC also provides a Code of Practice for its members, which it must take into account when making decisions on what social workers must comply with. This sets out the conduct expected of social care workers by reference to a number of principles. Rule 5 states that ’ As a social worker, you must uphold public trust and confidence in social care services’ . Section 2 of the code requires social care workers to strive to establish and maintain the trust and confidence of service users. By virtue of section 2.3 this includes a requirement to respect confidential information and to explain clearly agency policies about confidentiality to them .

9. Complaints about a social worker’s conduct are referred to the Respondent’s Conduct Committee under a separate process governed by the General Social Care Council (Conduct) Rules 2008 (‘ The Conduct Rules’). By Rule 12 (1) the Respondent must first decide whether the information amounts to a complaint by reference to whether it makes a specific allegation of misconduct. By Rule 12(3) if the information is not considered to be a complaint, the Respondent must inform the source that no further action will be taken and the matter will be closed. If it is deemed to be a complaint the Respondent is required to consider whether there is a real prospect of a finding of misconduct and, before taking a decision on this, it is required under Rule 12 (9) to send the registrant a copy of the complaint

10. Section 68 of the Act provides that an appeal against a relevant decision of the Respondent lies to the Tribunal. On appeal, the Tribunal has power to confirm the Respondent’s decision or to direct that it shall not have effect. It also has power to vary, remove or impose any condition upon the Appellant’s registration as it sees fit. This confers a wide jurisdiction and permits this tribunal either to reconsider afresh matters previously adjudicated upon by the Respondent or, in appropriate cases, to restrict itself simply to reviewing the original decision, in the usual way, by means of a re-hearing

The burden and standard of proof

11. The onus is on the Appellant to prove his competence and good character ( Jones v Commission for Social Care Inspection

[2004] EWCA Civ 1713

; and CR -v- General Social Care Council [2006] 0626. SW . It is his responsibility to demonstrate that he is suitable for registration. The standard of proof is the civil standard, namely the balance of probabilities.

12. However, the Tribunal takes an inquisitorial, or investigatory, approach, rather than a strictly adversarial one, to the hearing of appeals in this jurisdiction, which is reinforced in its procedural rules. That approach reflects the observations on the burden of proof made in Kerr v Department for Social Development

[2004] UKHL 23

;

[2004] 1 WLR 1372

. In essence, this is a fact gathering exercise governed by equitable principles and by the overriding objective set out in Rule 2 of the Health, Education and Social Care Chamber Rules 2008 (the ‘2008 Rules’), which states:

(1) (1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes—

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(d) using any special expertise of the Tribunal effectively; and

(e) avoiding delay, so far as compatible with proper consideration of the issues.

(3) The Tribunal must seek to give effect to the overriding objective when it—

(a) exercises any power under these Rules; or

(b) interprets any rule or practice direction.

(4) Parties must—

(a) help the Tribunal to further the overriding objective; and

(b) co-operate with the Tribunal generally.

13. Therefore, the general principle is that each party must provide sufficient evidence to support their case, but where relevant information is available to the Respondents, an organisation with far greater resources than the Appellant, it is for the Respondents to produce that information.

Preliminary matters

14. In its Response, the Respondent applied to strike out the appeal on the basis that it had no reasonable prospect of success. On 21 st July 2010, the Appellant made written submissions and t he strike out application was subsequently refused by Judge Hillier on 12 th August 2010.

15. On 8 th July 2010, Judge Tudur gave directions in a telephone case management hearing attended by both parties. The Respondent was directed to disclose documentation to the Appellant on receipt of a list of specified material from the Appellant’s representative. The requested material included disclosure of any complaint made against the Appellant during the period September 2006 to April 2010.

16. On 21 st October the nominated Tribunal Judge considered two applications from the Appellant’s solicitors. The first was for permission to submit a further statement regarding his more recent contact with the Respondents, which was granted. The second concerned documents relating to a complaint by a service user in 2010, which had been included in the hearing bundle by the Respondents solicitors. The Respondent had previously decided to take no further action on this matter, the material had not been put before the Registration Committee in April 2010, nor had it been disclosed to the Appellant pursuant to the directions of 8 th July, and there was no witness statement referring to it. It had also not been disclosed in response to a formal application under the Data Protection Act by the Appellant on 6 th May 2010 for all the information held by the Respondent relating to his registration. The Respondent argued that information about the complaint did not fall into this category and furthermore, as the matter had been closed it was under no obligation to provide details to the Appellant. It accepted the complaint should have been disclosed and apologised for the omission.

17. In the event, no decision on this material proved necessary as the Respondent removed the offending pages voluntarily. We made it clear to the parties that we would have directed removal had the Respondents not agreed to this, but if there were any documents that we thought were relevant in the light of the oral evidence, we reserved the right to consider whether they should be admitted. Accordingly, we have admitted those documents that assisted us in clarifying the Respondent ‘s decision-making process in March 2010.

18. At the start of the hearing Ms Tanchel made a formal application for a number of the Appellant’s witnesses to be called to give oral evidence. She argued that the burden of proof was on the Appellant to demonstrate his suitability by showing how he had complied with the condition imposed upon him in 2206. Therefore, it was necessary for service users to be cross-examined on what the Appellant had told them about his confidentiality policy and for Mr Lowen, the Appellant’s former solicitor, to address the issues leading to the imposition of the condition.

19. We refused this application because, firstly, it should have been made before the hearing. Secondly, the context in which it had been made was relevant since the Respondent had conceded it no longer had any of the relevant contemporaneous records. It had chosen not to file any witness statements and thus could not show what had been in the minds of the Registration Committee in 2006 other than that recorded in the written evidence, and was unable to counter Mr Lowen’s assertions as to the circumstances at the time. We concluded Mr Lowen’s attendance was not required and none of the service user witnesses appeared to be critical, especially on such short notice and particularly in circumstances where the Respondent seemed to be trying to supply gaps in its own evidence. We made it clear that we would review this decision if, having heard oral evidence from the Appellant, the evidence of his witnesses needed to be tested.

20. At the hearing, and for the first time, Mr Norman challenged the contention that the burden of proof was wholly upon the Appellant. We directed him to produce a Skeleton Argument to Counsel by 8 pm on the first day with hard copy to the Panel by 9.30 am. We directed Ms Tanchel to respond by 9.30 am, with leave to file any additional points thereafter, if so instructed.

21. We made a Restricted Reporting Order under Regulation 14 (I) (b) of The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 for the purposes of protecting the identity of service users. This order prohibits the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England or Wales of any matter likely to lead members of the public to identify the service users or the Appellant’s clients or any vulnerable child. This decision is anonymised to that extent and the order continues in force.

BACKGROUND

22. Mr Bains, (the Appellant) was born on 13 th December 1959 and qualified as a social worker in January 1994. For the last 11 years Mr Bains has been a self-employed social worker, working as a Children’s Guardian and latterly as an Independent Social Worker (‘ISW’). He worked for the Children and Families Court Advisory and Support Service (‘CAFCASS’) until 2005, and continued to work as an ISW, as well as an agency social worker and as a counsellor, until the decision under appeal.

23. The Appellant’s wife, known as Joanna Rees-Bains, is also a qualified, experienced and registered social worker. Her name remains on the Social Work Register and her registration is not, and has never been, subject to any conditions or restrictions. She also worked for CAFCASS until 2005 and, as confirmed in a letter dated 10 th November 2005 to Mr Douglas, Chief Executive of CAFCASS, in the past she has provided administrative and research support for her husband. She is also commissioned by the family courts to carry out assessments as an ISW.

24. The Appellant first applied for registration as a Social Worker in 2004, and was finally registered on 14 th August 2006 for the usual period of 3 years, some 22 months later. A condition was imposed as follows:

“For the period of your 3 year registration you must draw up a confidentiality and information sharing policy which you must share with any individual or organisation who instructs you, and any service user with whom you work (commensurate with their understanding and level of maturity). This confidentiality and information sharing policy will:

i. include clear information about how personal service user information will be used and shared

ii. disclose the nature of the work that your wife, or any individual will carry out in the preparation of your reports.”

25. The circumstances leading to the imposition of this conditions had largely begun in 2003 when Ms Lamorna Wooderson, a CAFCASS Director, alleged Mr Bains had falsified his expenses claims. This resulted in criminal proceedings being brought against him for fraud.

26. On 25 th May 2005 Mr Bains was acquitted on the direction of the judge when the prosecution offered no evidence. A verdict of not guilty was entered. The judge’s concluding remarks included the following observations:

“during the course of this trial the court has heard some evidence of the problems encountered by CAFCASS after its formation…it was accepted that there were many problems. Contractual terms and arrangements for guardians were the subject of much debate…and [have] been relevant to the issues in this trial…many of the issues in this case involved the defendant’s method of working, which he maintains is not contrary to the pre or post CAFCASS arrangements. No complaint has been made about the quality of his work…[and] I hope that the working relationship can be restored.”

27. The Respondent made it clear it accepted that there were, and have never been, any concerns about the Appellant’s honesty or the quality of his professional work.

28. Mr Bains had continued to work as an agency social worker and as an ISW throughout the application period and the Respondent specifically confirmed he was allowed to do so in a Letter of Intent dated 9 th February 2005. In early 2006 the Respondent’s attempt to withdraw this Letter without any justification led to it making a formal apology to the Appellant.

29. After Mr Bains’ acquittal CAFCASS offered no further work either to him or his wife, but it did eventually pay him the monies it owed him. Ms Wooderson continued to pursue her complaints about him to the GSCC.

30. There were discussions between the Respondent and the Appellant’s legal representatives about the necessity for, and the terms of, the condition, but, as already indicated above, no documentation is now available to indicate what was agreed or the detail of what was before the Registration Committee in its deliberations in 2006. However, Mr Bains told the Committee in outline written representations in May 2006 that, despite his disappointment the condition was thought necessary at all, nevertheless he was prepared to agree to it as he wished to move on after a difficult period. He had already sent the Committee Clerk a copy of the full trial transcript and he made it clear he had further information to give if the Committee decided to impose other conditions or to refuse his application.

31. The Committee’s Notice of Decision noted the Appellant’s acquittal and specifically stated that his references from several lawyers and judges, including designated family judges, “ went a long way to demonstrate the quality of [his] professional work and conduct.” Noting there were concerns arising as a result of the CAFCASS complaint, it observed that the evidence in the criminal trial had centred on the management of his very heavy caseload. This had necessitated the involvement of his wife in a supportive role.

32. The Committee expressly stated it was satisfied about Mr Bains’ competence, good character and conduct, stating that any other concerns were not significant in the context of an apparently unblemished career. But it concluded the trial transcript showed repeated breaches of confidentiality in the way he had shared information about children with his wife and son. It decided to impose the previously agreed condition, with one additional amendment to reflect the understanding and level of maturity of the client. It recorded that a review of compliance was not necessary as this would be considered on renewal of regis tration.

33. In the absence of any complaints, monitoring or further contact with him, this enabled Mr Bains freely to pursue his career as a social worker for the next 3 years. In his letters to clients on notepaper headed ‘CHB Associates’, he included a standard paragraph as follows:

“I would also like to draw to your attention the fact that it may be necessary for some of the information relating to your case and obtained through the assessment process] to be viewed by administrative staff in the preparation of the requested assessment report.”

34. Mr Bains’ registration was due for renewal in August 2009, but he began making enquiries about what he had to do to obtain this as early as April 2008 and was given advice about who should endorse his application as he was an ISW. On 31 st July 2009 the Registration Committee Clerk advised him that, if he allowed his registration to lapse, he would have to show he had complied with the condition in any application for restoration to the register. From this point on, the process took years…months to reach the point of decision, with several apparent delays due to misunderstandings and miscommunications. These included:

allegations by the Respondent that it had not received information from the Appellant that had in fact been provided already

requests for further information that had already been provided by the Appellant, or information that he did not possess

duplication of information provided by the Appellant

letters reminding the Appellant of the need to prove compliance with the original condition followed by an apology from the Respondent

In a further letter on 12 th August 2009 the Clerk said he had failed to respond to her first letter regarding compliance.

35. On 2 nd September 2009 Mr Bains submitted a formal renewal application and was subsequently told this had been passed to an Investigating Officer, but in the meantime he could continue to work as a social worker. Over the ensuing period he provided information and repeated assurances that he was happy to provide further information if required. Specifically, in a letter dated 24 th August 2009, he explained his confidentiality policy and enclosed a copy of the proforma letter provided to clients. He said there had been a significant change to both his range of work and his working practice since 2006. He explained that as a result he only needed to provide a letter to families he worked with as an ISW, and confirmed that no-one else, including his wife, worked on his cases or had access to his files, which were kept within his personal office. He also gave a brief outline of the original circumstances in which the condition had been imposed, and said he no longer worked for CAFCASS. Given the changes he did not see the need for the condition but clarified that he would continue to accept the condition if the Committee thought it necessary.

36. On 30 th September 2009 the Respondent wrote to the Appellant stating it was not able to make a determination on whether he met fully the requirements for registration and it would be transferring the matter to an Investigating Officer. On 5 th October he emailed the Respondent to say the Suitability Assessment Officer had told him his honesty about his compliance with the condition was now in question. He supplied a summary of the information and explanation he believed he had already provided about his work and reiterated that he had complied fully with the terms of the condition.

37. On 26 th November 2009 Mr Bains was told his application had been referred to the Registration Committee in accordance with Rule 14 of the 2008 Rules. He was advised of his right to make oral submissions. Thereafter , Mr Bains’ contact with the Respondent was through Mr Sant, an External Investigating Officer. It became clear he did not have any of the relevant information previously supplied by the Appellant, which was not forwarded by the Committee Clerk to the Respondent’s registration team until 4 th February 2010. Mr Bains also sent the information to Mr Sant, who duly apologised, acknowledging it had already been provided and confirming he would be sending an amended report to the Registration Committee.

38. In an email to the Appellant on 8 th February 2010 Mr Sant said the Committee would be fully aware of the policies applicable to any work for local authorities, but evidence was needed about how he had used the confidentiality policy in his work as an ISW. Mr Sant recognised the data protection issues regarding individual clients, but said he would accept verification from any organisation that had employed him as an ISW.

39. Mr Bains’ reply sought to clear up this misunderstanding of the way in which ISWs were commissioned, explaining the confidentiality letter was only sent to those clients he had been asked to assess by the courts. He confirmed that agencies employing him were aware of the condition on his registration and could supply evidence to this effect.

40. On 9 th February 2010 the Respondent decided to refer the application to its Registration Committee and the following day Mr Sant telephoned the Appellant to confirm the Committee requirements. Mr Bains explained he was appointed as an ISW by the courts and solicitors instructing him on these cases would not be aware of his letter. He was reluctant to approach his one current client because the case was a particularly sensitive one. He asked for the information already supplied to be sent to the Committee and he would try to provide any further evidence if the Committee deemed it necessary.

41. On 30 th March the Clerk to the Committee confirmed to the Appellant that his application was to be referred to the Registration Committee, with a recommendation that it should be refused. The information he had provided had been explored but officers had no discretion to refuse registration or any power to attach conditions. There was no further explanation for the recommendation. He was advised of his right to make written and oral submissions and of the Committee’s power to adjourn.

42. The Notice recommending refusal of the application contained no reference to Mr Sant or to any report prepared by him, amended or otherwise. It was signed by Mr Tiplady, an Interim Conduct Manager in the External Investigations Team, who confirmed the Appellant’s willingness to provide any further evidence of compliance if so required. The subsequent Schedule of documentation given to the Committee made no mention of any documentation from Mr Sant or his role in the process.

43. Prior to this, issues had been raised with the Respondent about Mr Bains’ work as an ISW in one private law family case. The Respondent’s decision to take no further action was explained as being based on “ no real prospect of proving misconduct .” On 17 th March 2010 informed the Appellant in writing the referral did not amount to a complaint that could be dealt with under the 2008 Conduct Rules “because there is not a specific allegation of misconduct.” In a separate letter to the client it confirmed no further action would be taken “because the allegations do not meet the threshold for misconduct and as such would not call into question the registrant’s suitability to practice.” The letter, which was not copied to the Appellant, confirmed the information would be held on file and reviewed in future if further information was received or a similar referral made. The Appellant was not told this. No mention was made of this matter to the Registration Committee.

The Registration Committee decision

44. Neither Mr Bains, nor any officer, gave oral evidence to the meeting of the Committee held on 29 th April 2010 and therefore the Committee took its decision on the documents alone. The Schedule of these documents listed the note of the 2006 decision and confirmation to the Appellant, copies of correspondence between the Appellant and the Respondent including his letter of 24 th August 2009 and a copy of his proforma client letter.

45. The Committee’s Notice of Decision refusing Mr Bains’ application said the condition had been imposed in 2006 to ensure the Appellant upheld the standards required in section 2.3 of the Codes of Practice and noted the contents of the Appellant’s standard letter. The Committee’s reasons for refusal were based on its conclusion that this letter contained the only evidence of his compliance with the confidentiality policy and the stipulations of the Committee in 2006. In consequence, it found he had failed to provide sufficient evidence and therefore it could not be satisfied he had acknowledged his professional responsibilities in terms of the Codes of Practice. It was also “ not satisfied that service users will not have been put at risk” over the previous 3 years, stating that the maintenance of public confidence required registrants to comply with conditions imposed upon them.

46. As recorded in the Notice, the Respondent’s Legal Adviser told the Committee it should act reasonably and proportionately at all times, had powers to request further information and to allow the applicant an opportunity to give oral evidence, and a discretion to adjourn. The Committee did not adjourn to obtain any further evidence from the Appellant.

47. On 3 rd May 2010 Mr Bains asked Mr Sant for a copy of his report and queried the absence of any reference to this or to his findings or his recommendations in the Committee record. Mr Sant referred this enquiry to Mr Brown, the Conduct Manager. On 5 th May, in response to Mr Bains’ request for a full copy of all information before the Committee and a note of its proceedings, the Clerk confirmed no transcripts were produced as deliberations were in private, so the only record was in the Notice of Decision.

48. On 21 st May 2010 Mr Bains appealed to the Tribunal.

49. On 14 th September 2010, the Respondent confirmed all relevant material had been disclosed, but that no correspondence or communications with Mr Bains’ solicitors about the original conditions could be found. It also said Mr Tiplady had confirmed Mr Sant’s report which had “ already been provided to the Appellant ”, was part of the evidence for the Committee. The Schedule of Enclosures to the Committee in 2006 had listed the emails and telephone contacts with the Appellant’s solicitor, Mr Lowen.

50. The Respondent’s Response made no mention of the separate private law matter nor did it raise any further issues relating to the circumstances leading to the imposition of the original condition in 2006. However, the material it ultimately removed from the bundle included a prejudicial newspaper report of the 2006 criminal proceedings that pre-dated the outcome of the trial and the verdict.

Evidence

51. We considered the bundle of written evidence, which included documentation before the original Registration Committee, the decision of that Committee, and the Tribunal appeal paperwork. We also considered eight witness statements from the Appellant, including one from his wife and one from Mr Lowen, his former solicitor, now retired, several statements from service users and a solicitor as well as testimonials from various county court judges. There were no witness statements from the Respondent. At the hearing we admitted a copy of a letter dated 1 st February 2010 to complete the correspondence from Mr Sant to the Appellant at that point.

52. Mrs Rees Bains told us ‘CHB Associates’ was not a legal partnership, but a loose grouping of four social workers all recognised as experienced and capable of providing a reliable service to the courts in their role as ISWs.

Prior to the creation of CAFCASS and before the trial she had carried out a permitted and fully recognised role as a paid administrator for her husband. This involved carrying out a number of tasks such as typing and research. She stressed the contents of the reports were entirely those of the Appellant. CAFCASS had gone to great lengths to pursue Mr Bains, despite the fact that the Crown Prosecution Service had withdrawn all the evidence against him, and had subsequently terminated her contract in December 2006, alleging the evidence she had given at the trial justified this step.

53. She said the problems arising from the false allegations had led to both her and her husband taking great pains from 2005 to create a barrier between their respective work areas. Anyone wishing to contact her husband would do so via his mobile or by email, so she rarely received calls for him. She only took the briefest of telephone messages on the landline when his mobile was diverted. She did not open his post and confusion was very unlikely given the difference in their surnames. She pointed out that despite the fact that she was also registered and the condition directly concerned her role, the Respondent had never asked her to comment.

54. Mrs Rees Bains stressed she had never been challenged on confidentiality issues, nor had she been asked to set up such a policy or imposed any condition on her registration. Her policy was to explain to clients that as a member of The British Association of Social Workers (‘BASW’), she operated under the terms of its Code of Ethics and within the terms of her letter of instruction. This Code contained a detailed provision covering privacy, confidentiality and records but there was no requirement to have a written policy. Appropriate monitoring of the work of ISWs was in the hands of the courts. She had her own separate, locked office and clear safeguards were in place to address client confidentiality. She observed that d iscrimination seemed to be the only explanation for the way the Appellant had been treated differently by the Respondent, bearing in mind his ethnic origin.

55. The Respondent did not dispute that negotiations had taken place on the imposition and wording of the condition. Mr Bains explained he was also unable to produce his own contemporaneous records because his house had been flooded twice. He had u nderstood the intention underlying the condition was to ensure service user information was kept confidential and used responsibly and to ensure he explained his policy on this to others. He had suggested to his solicitor, Mr Lowen, the form of words that was agreed. Mrs Rees-Bains confirmed there had been a discussion about this and the agreed policy amounted to nothing more substantial than the combination of the written and oral approach. Her husband had been careful to check again with the Respondent before subsequently carrying out work as an ISW. She was clear that the effect of the false allegations on both of them was such that they had been at pains to ensure neither would ever experience this again.

56. Mr Lowen’s witness statement provided a recollection of events in 2005/2006. He said the criminal investigation was about Mr Bains’ working practices and the court had exonerated him. Both CAFCASS and the Respondent had focused on these same allegations, in which the central issue was that Mr Bains’ wife did his typing. Mr Lowen said no-one had ever alleged information had been improperly disclosed to anyone at any stage.

57. Mr Lowen had liaised with the Respondent about the form of compliance and its requirements for the wording in the client letter, which he had drafted. He had also dealt with whether Mr Bains needed to be represented at an oral hearing of the Committee. He confirmed he had advised Mr Bains to accept the terms of the agreement reached with the Respondent, “not because it was necessary or proportionate but on the purely pragmatic grounds that they did not seem unduly onerous and they provided him with a way of getting on with his work and practice.” Mr Lowen believed the narrow range of Mr Bains’ practice would mean the condition would operate with the minimum of bureaucracy in such a small business.

58. The Respondent conceded this must be correct since it was also unable to produce any contemporaneous evidence to show how it had chosen to deal with the condition, including its expectations of what would constitute compliance. It no longer had the relevant correspondence or any other written or oral evidence about the detail of the negotiations. In consequence it was unable to assist us on what the agreed wording meant in practice or what implications flowed from the agreement reached in terms of implementing the policy it had required to be put in place.

59. Mr Bains said the trial and subsequent events had placed him under great strain and he had accepted the condition on legal advice even though he did not agree it was necessary. He was clear the policy had consisted of the agreed wording, with an oral explanation to each service user: the latter had always been part of his practice anyway. He had honoured this by providing the letter and explaining verbally what was involved on each occasion. The standard written wording was not enough and he had also provided a verbal explanation to each client, tailored to their individual needs to ensure each understood how the information gained in assessment would be used and who might be involved. He had also distinguished between information that had to be disclosed in court reports and information obtained during counselling that could remain confidential. He had explained his wife undertook similar, but separate, work as a qualified ISW, and would occasionally take short messages when he was unavailable.

60. Mr Bains said the terms of the condition had been agreed before the Registration Committee considered his registration in 2006 and were never intended to be a comprehensive policy of the kind used by large organisations. The Committee in 2006 had merely considered the agreed wording and a copy of the trial transcript that had been edited by the Respondent’s staff. He knew of no other ISWs who had been required to produce such a policy in writing and all other social workers were subject to the policies on confidentiality produced by their employers.

61. Mr Bains said there was no basis for refusal of his registration based on a policy the terms of which the Respondent had agreed to in 2006 and which he had followed. The witness statements from service users all provided examples of this approach in practice and one of them showed he was using the policy in September 2006. He understood what a full confidentiality policy would look like and was very clear that if his understanding, and that of his solicitor in 2006, had been at variance with what he had described, he would have implemented alternative terms. His practice and the way he worked was not being challenged, but in essence he had been made to feel that the Respondent was suggesting his honesty was somehow in question because it was not satisfied with the explanation he had given to administrative staff. He had been completely unaware Mr Sant was investigating the matter until he received his letter of 1 st February showing Mr Sant had been given none of the information the Appellant had previously provided. Mr Sant had thereafter confirmed he was satisfied and Mr Bains had thought he could rely on the reassurances and amended report of an external investigator and on the independence of the Committee. He had had no contact with Mr Tiplady, was not aware of his reasoning and believed he had done everything necessary to renew his registration. He had been very shocked when the Committee refused his application, but it was now clear it had not been in possession of the full facts.

62. The Appellant added that he had suffered great professional embarrassment and disruption to his practice and to his clients by the Respondent’s purported withdrawal of his permission to work during an unnecessarily protracted application process. That process and the way in which it had dealt with his appeal had shown the Respondent’s lack of understanding of what had taken place in 2006 and its ability to move the goalposts.

63. He said he thought he had addressed any remaining concerns about confidentiality by what he had done, despite the fact that no breach of confidentiality had ever been found, nor had there been any failure regarding the explanation of his wife’s role in his practice at any point either before 2006 or subsequently. He had abided by the terms of the Code of Practice and his practice had reflected the principles set out in the BASW Code of Ethics. In contrast, he pointed to the contents of his further witness statement, which set out three occasions on which the Respondent had breached confidentiality by wrongly sending him correspondence relating to other applicants for registration. This included information about their medical records and criminal convictions. He had reported this and the Respondent’s reply thanking him showed it had confidence in his discretion and his professionalism. It also lent credibility to the effectiveness of his own policy.

64. The Respondent expressed regret for these breaches but denied this evidence was relevant to the appeal. Ms Tanchel said the Respondent also denied discriminating against the Appellant, an allegation for which there was no supporting evidence. She also confirmed that there were no records of any communications between 2006 and 2009 about the Appellant’s compliance with the condition and Mr Tiplady had already confirmed that he did not have any minutes of his meetings with Mr Sant. She clarified that, despite its earlier assertion Mr Sant’s report had been provided to the Committee in 2010, the Respondent had now instructed her the Committee had only had Mr Tiplady’s report.

SUBMISSIONS

For the Appellant

65. The Appellant’s solicitor argued that in deciding whether the Appellant had addressed the key issue of his suitability to be registered , it was necessary to consider the adequacy of his confidentiality policy, firstly from 2006 to 2009 and secondly, in the context of current information with reference to the Committee’s 2010 decision :

a) the evidence now available was sufficient to demonstrate the Appellant had complied with the condition, and specifically showed:

· he had used the document as drafted, supplemented with a verbal explanation, and was still using it in 2010

· there was a policy underlying his practice which actually worked and his approach to that policy was appropriate

· he had informed the various agencies about the policy

b) the Committee’s decision in April 2010 was wrong at the time because there was sufficient evidence available then to enable registration, and furthermore,

· The Committee had considered insufficient evidence for the original imposition of the condition in 2006 and then for refusal of registration and should have adjourned to obtain further information

· The history of Mr Bains’ application for renewal showed he had regularly supplied information and answered requests to do so, but had experienced delay, miscommunication and a failure on the part of officers to understand the role of an ISW.

· He had been misled into thinking the referral to the Committee was merely a matter of routine practice and that he need not attend, but had subsequently discovered the Committee had considered matters he had been told he had addressed but was unable to obtain any further information about its deliberations

· The approach of the Registration Committee was in marked contrast to the more transparent process used by the Conduct Committee, but the effect was to deprive him of his career

66. Mr Norman also relied on his legal argument about the burden of proof, based on a belated analysis of the legislation and the Response. In essence, this addressed the question of whether the primary legislation made compliance with conditions a registration issue at all, despite the relevant provision in the Rules.

67. Mr Norman further argued that the way in which the Respondent had dealt with the Appellant’s application had been flawed. Mr Bains had provided information in response to requests, but the correspondence initially implied this had not been received. Neither this information nor his reply in October had been linked or put before the Committee. When he chased the Respondent he received an apology in February 2010, but this was followed 4 days later by a request for additional information that demonstrated the Respondent had misunderstood the situation and Mr Bains’ position.

68. Mr Norman asserted that the circumstances leading to the imposition of the original condition was highly relevant. The Appellant was clear that in 2006, before he had accepted the condition, the application of a confidentiality policy through a proforma client letter and oral information to service users had been discussed and agreed between his legal representative and the Respondent’s officers and the latter had specifically approved the wording in the letter. Notwithstanding this, the Respondent was now seeking to re-open the issues of whether this combination had been approved as amounting to a policy and the adequacy of the letter. But it was doing so without producing any evidence to counter the Appellant’s assertions and his understanding of the Respondent’s expectations. He had proceeded on this basis and had made it clear that if the Respondent had not so agreed, he would have offered to do things differently.

69. In the absence of evidence to the contrary, the Appellant’s account of what was or was not agreed in 2006 must be correct. The clear implication of that was he had satisfied the condition within his understanding at the time and in terms that were no more than what appeared in the written evidence. Therefore, there was no evidence to suggest he was in breach.

70. In summary, the Appellant had provided sufficient evidence to answer all the issues he needed to address. There was no actual need for the condition in 2006, but the Appellant had accepted its imposition in the circumstances and had implemented a policy approved by the Respondent. He had provided relevant information in 2009 and 2010 that ought to have satisfied the Respondent and in the course of the appeal and during the hearing he had supplemented this to show what he had done was compliant, appropriate and effective. Mr Norman contended that the response to the issues he had identified, taken together, amounted to evidence the Appellant had now satisfied all the requirements for registration as a social worker.

For the Respondent

71. The sole basis of the Respondent’s case was whether the Appellant had demonstrated compliance with the condition imposed in 2006. Its Response stated that the Committee had taken the Appellant’s client letter in to account but decided this was not enough to show compliance with Section 2.3 of the Code of Practice, as it merely informed service users their information may be shared with others. The Appellant had failed to provide any evidence that an information sharing policy was formulated and drawn up by him or the way in which it was used and shared. The Respondent contended that such a policy might reasonably be expected to contain such matters as the circumstances in which information may need to be disclosed, when, how and to whom and any measures taken to prevent accidental disclosure, theft or disclosure by third parties.

72. Furthermore, there was no evidence before the Committee to support the Appellant’s assertion that he gave direct verbal explanations to service users. In addition, his assertion that the evidence regarding his wife’s role was undisputed was not borne out by the notes of the Committee hearing and there was no note as to whether the Committee accepted this evidence or not.

73. Ms Tanchel conceded that the Appellant’s wording in 2006 was shown to the Respondent but it was impossible to say what communications there had been between the parties since the relevant records were no longer available. Therefore, it was a question of what was before the Committee in 2010 and whether it had reached a proper decision. The burden was on the Respondent to seek information reasonably within the Appellant’s knowledge. To the extent that it was possible to show from the correspondence, the Respondent had been appropriately aware of client sensitivity but it had made it very plain to him what was required and had given him every opportunity to provide it. He had chosen not to give oral evidence to the Committee. He had then sought to overcome these difficulties in the appeal process but it was incumbent on him to have done so much earlier.

74. Ms Tanchel argued that the Conduct Rules required policies to be written down and that the Appellant’s client letter did not amount to a proper policy on confidentiality. Furthermore it also breached the condition in that it did not address the role of Mrs Rees-Bains in the Appellant’s work. Counsel also asserted that the letter did not comply now with the Code of Practice and he had failed to show in sufficient detail what more he had done. All of these were matters the Appellant must prove to demonstrate he had done what was required of him and therefore to show his suitability to be a social worker, and he had failed to do so. The sole issue was one of confidence in him as an ISW and the Committee had properly considered the information available to it and had properly concluded the Appellant had provided insufficient evidence to show he had complied with the condition imposed in 2006.

Submissions on the burden of proof

75. We note the respective submissions on the burden of proof, which were informative, but ultimately not determinative. We have made no finding on the issues they raise, but we have no doubt that this question will arise in other appeals , particularly since the operation of the overriding objective has been the subject of growing debate within the Tribunal Service.

TRIBUNAL’S CONCLUSIONS WITH REASONS

76. The Notice of Decision in 2006 states without reservation that the Committee had no doubt about the Appellant’s competence, good character and conduct. Therefore, this case has only ever been about the sole basis of the refusal to renew his registration, namely the terms of the condition imposed in 2006 and the Appellant’s compliance with it until 2010.

77. In 2006 the Respondent followed the principles of best practice by involving the Appellant in the process of deciding how the condition should be formulated. It is clear from the 2006 Notice of Decision that the terms of this were negotiated and approved before the matter came to the Registration Committee. That is also clear from the slight change inserted by the Committee to the previously agreed wording. It is also clear from this process that the Committee and the Respondent trusted Mr Bains to carry out the policy without any further monitoring or checks until he applied for re-registration.

78. If the burden falls primarily on the Appellant, then he has satisfied the test because he supplied the information to Mr Sant. At the relevant time he was working with local authorities and only had one other client. He was reluctant to approach this person but made it clear he would do so if required. The offer to obtain further information duly appeared in Mr Tiplady’s report without comment. It is clear that the Committee could have asked for any further information anyway in order to clarify the position, but it did not do so.

79. Mr Bains had no opportunity to supply the further information because he was simply not asked to do so by the Registration Committee. It also appears that none of the information from Mr Sant, the officer commissioned to carry out an independent investigation, was available to the Committee. That much is clear from the lack of references to Mr Sant or to his report in Mr Tiplady’s report. The Respondent conceded this information was not put before the Committee and it did not provide this to us as part of this appeal. In these circumstances we are satisfied that it was not Mr Bains’ fault if he was not asked to provide that which he had already offered and was not alerted to any further need to supplement this by the evidence he then produced for this appeal. He clearly thought he had done enough based on the reassurances he received and the naivety of that was only apparent once the Committee had taken its decision.

80. We are satisfied that Mr Bains responded to all the questions he was asked by the Respondent in a 2-way communication and volunteered information that was then not processed with appropriate efficiency and speed. We find that the Appellant did all that was reasonably expected of him and that the policy was in use from 2006 shortly after the Committee’s decision. It is not reasonable for the Respondent to claim he failed to comply with what he was asked to do, or to pursue this contention in this appeal given the evidence it submitted.

81. We have asked ourselves whether the Appellant followed a proper process in dealing with his application to renew his registration or whether it was flawed as the Appellant suggested. Mr Bains applied in the normal way following preliminary enquiries as to what was expected of him and he ticked the relevant boxes. We believe that, in the absence of any issues arising in the 3 years since his initial registration, he had an entirely reasonable and legitimate expectation that his application would be dealt with in the normal way.

82. The Respondent conceded it was unable to refute Mr Bains’ assertions that in 2006 it had approved the standard paragraph in his proforma client letter and that this, together with the oral information he gave to each client, constituted his policy on confidentiality. It had absolutely no evidence to undermine his understanding that, as confirmed to him at the time and in writing to his solicitors, it had accepted this combination was sufficient to meet the condition imposed on him. Indeed, we note he said that if it had not been satisfactory to the Respondent he would have done something different.

83. In these circumstances, we find it difficult to understand why the Respondent did not draw the conclusion that its inability to produce any evidence to counter these assertions inevitably meant it would be difficult, if not impossible, to sustain its argument against renewal of his registration. It seems to have relied instead upon the inexorability of its own processes.

84. The Respondent could have reconsidered the condition in 2010, but the evidence all points to their ignorance of the circumstances in 2006. There is no evidence to suggest they were aware of the history of the negotiations over its wording or its implementation or the implications. It is clear to us they merely looked at the bare terms of the condition and the Appellant’s client letter. If the Registration Committee had had the full information, it is perfectly possible that they would (or could) have reached a different conclusion or that they might have chosen to adjourn in the knowledge they lacked sufficient evidence on which to base a decision: their legal advice gave them that clear option. Whilst no notes are taken of these Committee proceedings, we think it is unfortunate that no record is made of the decisions reached in respect of specific legal advice. We believe the Committee should record at least that it believes it has sufficient information, has considered an adjournment and decided that this is not necessary, especially where an applicant has stated his or her willingness to provide more information if desired.

85. The 2010 Notice of Decision makes it clear that the Registration Committee looked solely at the client letter as evidence of the Appellant’s compliance with the original condition. This demonstrated the Committee had no understanding that the original condition encompassed an oral explanation, despite the fact that this was information in the possession of the Respondent’s officers. There is no evidence that the Respondent’s officers told the Committee there had been any discussion about the condition at the time it was imposed and therefore the ‘policy’ was not simply the letter alone.

86. In any event, we note that the record of the 2006 decision indicated the bare condition was the issue, since there was still no reference to any negotiations in that decision either. We have concluded that the 2010 Registration Committee was not party to all the relevant facts on which to base a reasoned and reasonable decision. Therefore we can only conclude that their decision was fundamentally flawed.

87. We are troubled by the length of time taken by the Respondent to arrive at a decision in this case. Mr Bains’ application was dated 3 August 2009 and it took the Respondent until February 2010 to make any progress. It was still asking him for more information at this point despite its earlier apology for the error in telling him he could not work. Thereafter it was obliged to issue a further apology for saying it had not got information the Appellant had clearly already sent. It is undoubtedly true that the Respondent had considerable problems in the initial stages of implementing its new regulatory functions in 2006 that resulted in delay and frustration, which was experienced by Mr Bains at first hand in his initial application - and he was not the only one. But this is no excuse for the apparently chaotic, inaccurate and slow process followed by the Respondent in 2009.

88. Furthermore, this process appears to have been flawed. The Respondent said it had no option but to recommend refusal because Mr Bains was guilty of non-compliance and had not responded to their requests for information. On the basis of that initial error, it continued to pursue a path to refusal and to pass the decision to the Committee with that recommendation. If it is true that the Respondent has, or had, a policy to refer applications to the Committee with an automatic recommendation for refusal, it would seem a strange practice for a regulatory body to follow. Such a procedure might appear to amount to an abdication of responsibility and in circumstances where the Committee does not know it has insufficient evidence and does not fully record the evidence it does receive, that lays the Respondent open to the argument that there is potentially a breach of Article 6.

89. Mr Bains said he had received inappropriate reassurances from the Respondent’s officers, on the basis of which he relied in proceeding with his application. We find this to be entirely believable in the circumstances and history of this case. The Appellant was a credible witness, as was his wife. He was not only entitled to rely on assurances given by an officer of a regulatory body, but his credibility is further supported by his assertion that had he not received such assurances, he would have acted differently. We see no reason to disbelieve this statement; indeed it has all the hallmarks of inherent plausibility given his previous experiences and his clear commitment to remaining registered.

90. It is arguable that perhaps since 2003 and certainly since 2005, the Appellant has experienced several years of somewhat tortuous processes that have proved beyond his ability to control or to influence despite his best efforts. Both CAFCASS and the Respondent have placed him under considerable pressure, firstly in respect of criminal allegations that proved to be false and thereafter by CAFCASS’ pursuit of allegations about his working practices, which became the basis for his suitability to be registered as a social worker. The Respondent, prompted by CAFCASS, then decided to address any lingering doubts by negotiating the terms of a condition on his registration. On the face of it, unusual though it was, and still is, to require an individual social worker to produce and maintain a confidentiality policy, it ought to have been a relatively straightforward step. Instead, it resulted 3 years later in a prolonged process of investigation by the Respondent characterised by inadequate record keeping, failures in communication, a lack of knowledge and understanding by its officers and a decision taken by a Committee based on that flawed approach.

91. The resulting appeal has been contested by the Respondent on what appears to be very thin evidence. We were deprived of any witnesses either written or oral from the Respondent and we can only conclude that if it had believed it had a reasonably fair chance of proving its case it would have produced rather more evidence than this. The ground also shifted during the appeal process and the hearing itself, with concessions being made by the Respondent in the face of obvious deficiencies in its own evidence. It is not enough to say that the burden of proof lies upon the Appellant without more. W e have no reason to doubt the content of the statements filed by witnesses for Mr Bains, and they are consistent with his evidence. It does not appear to us to be compliant with Rule 2 of the HESC Rules to argue that cross examination of these witnesses might have undermined the Appellant’s case to such an extent that we would have reached a different conclusion or that the outcome of this appeal might have been different.

92. A regulatory body must take a proper evidence based approach to its functions and its decision-making, ensuring that the reasons for the decisions it reaches are entirely transparent. It also needs to take particular care to exercise its functions in a proportionate, fair and independent manner given the power it has been given to control professional status. It needs to demonstrate that it has not been unduly swayed by the views or approach of another public body with different functions. It is a matter of public record that, as an organisation responsible for providing services to the public and to the courts on behalf of children CAFCASS has experienced a number of crises, including a prolonged period of dispute with its self employed Guardians and a failure to command the full respect it might normally be entitled to expect. This increases the necessity for the Respondent to avoid giving the impression of exacerbating a situation that, in reality, turns out not to have been what it appeared to be at the outset.

93. In particular, the Respondent must impose only those conditions that are fair, reasonable and proportionate in all the circumstances. We acknowledge that Mr Bains accepted the condition in 2006 on the advice of his lawyers. But he appears to have done so after a very distressing and challenging time in which his professionalism and honesty were called into question in very public, and publicly reported, circumstances. The fact that his prosecution for fraud turned out to be wholly unfounded and pursued by a public body that was itself under scrutiny, ought to have given the Respondent some pause for thought. Furthermore, a similar condition was not imposed on his wife’s registration, despite her close involvement in the events and the similarity of her work. In the absence of any relevant documentation we are unable to draw any further specific conclusions about the appropriateness or otherwise of the Committee’s decision in 2006.

94. Mr Bains was then subjected to further challenge through the re-registration process, which again appeared to call into question his integrity. The process does not appear to us to have been entirely transparent and was, once again, based on information that was either incomplete or not made available to him. This was exacerbated by the appeal process in which the Respondent failed to produce any written or oral evidence to support its contentions about the interpretation of the condition either by its officers or by the Appellant at the relevant time, on the basis of which they sought to assert his lack of suitability. Instead, it sought to rely on the Appellant to fill gaps he was clearly unable to do, largely for reasons beyond his control, and it attempted to include prejudicial and misleading evidence that was nothing to do with the central tenets of its case. What he did do was to explain carefully what precautions he had taken to meet any concerns that had led to the condition, how his work had changed to such an extent that a requirement for such a policy could only apply to his ISW practice and to offer to obtain more evidence if the Committee felt it needed it.

95. It seems to us appropriate to conclude in these circumstances that none of the Respondent’s processes in this case appeared to be characterised by the necessary fairness or transparency or compliance with natural justice or with Article 6.

The private law “complaint”

96. We are very concerned about the Respondent’s belated attempt to produce this further evidence. This was a matter for the separate Conduct Rules process and once the Respondent closed the file on it, it ceased to be relevant to this appeal or a matter to be pursued against the Appellant. It was quite properly not put before the Registration Committee, but that did not prevent the Respondent trying to include it in the evidence for this appeal. Even if that had been an appropriate step to take, the material included a newspaper report of the criminal proceedings in 2005 that gave a wholly misleading impression of the trial and of the Appellant’s conduct.

97. We received no explanation for its inclusion in the bundle of evidence for this appeal and we were most concerned about the implications of so doing. It was incomplete and gave a partialised view that was entirely incorrect given the facts. It is extremely important that those preparing these appeals take the utmost care not to include “evidence” that may ultimately leave the impression that an attempt is being made to sway the tribunal. In the absence of any explanation, we are at a loss to understand why this material ever appeared and we are unable to find a logical and proportionate reason for so doing.

The application to strike out

98. Finally, we note, not for the first time, that the Respondent’s practice of making applications for strike out in these appeals was repeated in this case. We can only reiterate the observations of the nominated Tribunal

Judge and her specialist members in the recent case of Peek v GSCC:

“ any regulatory organisation that takes the view it is appropriate to apply routinely for this draconian measure in most appeals, regardless of the merits of the case, could be said to have a particularly high handed attitude to its functions. At the very least it seems to point to a rather blunt approach to the appeal process that smacks of an unnecessarily dismissive view. It is also one that takes no account of the vastly different nature of each individual case and one that quite unnecessarily wastes public resources in the form of judicial and administrative time and must cause perfectly legitimate appellants unnecessary distress, inconvenience and expense. ”

We were told that this issue is now under review by the Respondent.

DECISION

99. We have no hesitation in reaching the conclusion that there are no grounds for believing Mr Bains is not suitable to be a social worker and therefore to refuse to renew his registration. There is every reason to believe that he should be restored to the register without delay given the contents of the glowing testimonials he provided. We are satisfied that the Appellant has demonstrated all that is required for him to continue to be registered as a social worker and we order accordingly.

100. It is our unanimous decision that the appeal should be upheld. The decision of 29 th April 2010 is set aside.

Liz Goldthorpe, Tribunal Judge

James Black, Specialist member

Carol Caporn, Specialist Member

22 st December 2010