Borley v CCFW [2011] UKFTT 203 (HESC)

FTT-HESC
Borley v CCFW
[2011] UKFTT 203 (HESC) · 2011-04-01
[1]Ms Borley ("the Appellant") appeals under section 68 of the Care Standards Act 2000 against the decision of the Preliminary Proceedings Committee of the Care Council for Wales ("the Respondent") made on the 24 th February 2011, to impose an Interim Suspension Order upon the Applicant for a period of six months. The Law[2]By virtue of section 56 of the Care Standards Act 2000 the Respondent maintains a register of social workers and section 59 allows the Respondent to determine the circumstances by which an individual can be sanctioned and removed from the Register. The relevant rules for the purposes of this case are the Care Council for Wales (Conduct) Rules 2005.[3]Rule 5 of the General Social Care Council (Conduct) Rules 2008 provides that it shall be the duty of the Preliminary Proceedings Committee to consider any complaint against a Registrant referred to it and decide inter alia, whether it is necessary for the protection of members of the public or is otherwise in the public interest or is in the interests of the Registrant concerned for the committee to make an Interim Suspension Order.[4]Where the decision is made to impose an Interim Suspension Order (ISO), Rule 5(4) provides that the initial duration shall not exceed six months.[5]Section 68 of the Care Standards Act 2000 provides that an appeal against a decision in respect of registration shall lie to the Tribunal.[6]On appeal, section 68(2) provides that the Tribunal may confirm the decision or direct that it shall not have effect and the Tribunal shall also have power under section 68(3) to vary any condition in force, direct that any such condition shall cease to have effect or to direct that any such condition as it thinks fit shall have effect in respect of that person.[7]When the original application is considered by the committee, the committee should bear in mind the effects of any sanction on the Registrant and whether it is proportionate. The need for public protection and the maintenance of the public's confidence in social care provision must be balanced against the consequences of an ISO upon the Registrant.[8]The Committee must take into consideration the seriousness of the allegations and any evidence relating to the likelihood of any further incidents of harm, particularly to service users.[9]The powers of the Tribunal on appeal against an ISO is the same as the Preliminiary Proceedings Committee in that it considers the gravity of the allegations and the nature of the evidence, the risk of harm to members of the public, the wider public interest and the prejudice to the Applicant if the order was continued. It can consider any additional information received by either party after the Preliminary Proceedings Committee. It does not make findings of fact. Background[10]The Appellant qualified as a social worker from Cardiff University in February 2005 and was registered with the Care Council for Wales on the 13 July 2005.[11]She worked for the City and County of Swansea Council through a recruitment agency from 2008 until August 2010.[12]From August 2010 to January 2011, she worked for Blaenau Gwent County Borough Council via the Sanctuary Recruitment Agency.[13]On the 12 October 2010, the Care Council for Wales received a form completed by Mr and Mrs William Edwards reporting concerns about a registered social worker, namely the Appellant. At the time, Mr and Mrs Edwards were pursuing a Stage 2 complaint against the City and County of Swansea Council, which included allegations against the Appellant.[14]The complaint was referred to the Preliminary Proceedings Committee by the investigating officer, Louise Williams who recommended that the only consideration for the panel is to make a decision on imposing an ISO. She made the recommendation on the grounds that the allegation are of a serious nature and could put members of the public and service users at risk if the Appellant was not prevented from practising. She listed the allegations against the Appellant as being: a) Lack of case notes and recording; b) inaccuracies and inability to differentiate fact from opinion c) poor professional judgment d) lack of professionalism e) poor working knowledge and understanding of child protection policies and procedures f. lack of insight g inability to evidence subjective views h inability to comprehend risk and to undertake risk assessments.[15]The complaint and recommendation of the investigating officer was considered on the 18 November 2010. The Committee concluded that it was not appropriate to close the case and that the information questioned the suitability of the Appellant to remain on the register. It concluded that an Interim Suspension may be necessary and decided that the case should be referred for a second consideration on the basis that there were a considerable number of complaints falling within six categories across a broad spectrum of accepted social work practice. The committee acknowledged that the Appellant had not yet had an opportunity to respond to the allegations. 15. The Stage 2 complaint investigation report prepared by the Independent Investigating Officer, Mr Paul Bevan, had taken 13 months to investigate and complete and ran to 113 pages dealing with the conduct and practice of the Appellant. There were several broad areas of complaint and 68 associated complaints against the Appellant. The areas were: a) Lack of and inaccurate case notes and recordings; b) Bias against Mr M Edwards and in favour of his ex partner RP; c) Failure to follow up allegations of incidents; d) Inadequate risk assessment and Health and Safety; e) Preparation of inaccurate reports which failed to differentiate fact from opinion f) Inappropriate comments[16]On the 7 th January 2011 the Appellant was sent a Notice of Referral informing her of the First Committee's decision and the decision that the information called into question her suitability to remain on the Register and that the matter should be referred for a second consideration by the Preliminary Proceedings Committee. The meeting was set for the 21 January 2011.[17]The Notice included a copy of the Investigations Officer's Report and quoted that a recommendation for an ISO was made for the following reasons:
"the allegations made against the Registrant are of a serious nature and could put members of the public and service users at risk. The registrant appears to display a lack of insight and sound professional judgement and believed her work won the Edward family's case was good, maintaining that this was recognised by her manager...she failed to follow up concerns relating to the physical and emotional wellbeing of O and F where both children were assaulted, injured or neglected while in the care of RP. This was despite the concerns of other professionals. There is also evidence that the registrant has a poor working knowledge of child protection policies and procedures."
[18]On the 13 January 2011, Bowden Jones, solicitors, wrote to the Respondent on behalf of the Appellant requesting an adjournment of the meeting to enable the Appellant to be represented and to allow "full and proper preparation". The Respondents opposed the request.[19]The chair of the committee granted the request and the meeting adjourned to the 17 February 2011.[20]On the 8 February 2011, Mr David Allan, Senior Advice and Representation Officer from the British Association of Social Work emailed a request for a further adjournment of the meeting on the grounds that were exceptional circumstances that would merit a second postponement. The application was made on the basis that the College of Social Work had been instructed to represent the Appellant at the hearing and the complexity and number of allegations made and the volume of paperwork involved meant that further time was required to ensure that she would be "adequately represented" and have time to prepare her case.[21]The Respondent again opposed the request.[22]The chair of the committee refused the request. The meeting on the 17 February 2011 proceeded.[23]Following the adjournment on the 21 January 2011, further documentary evidence had been produced which included a copy of the Stage 2 Complaint Report, insofar as it was relevant to the complaints made against the Appellant.[24]The meeting started on the 17 February 2011 but found that it had insufficient time to conclude its deliberation and reconvened on the 24 February 2011 to consider its decision.[25]By letter dated 28 February 2011, the Respondent was notified of the PPC's decision to impose upon her an ISO for a period of three months or until the review of the Order or the case is closed by a PPC or the case has been heard by a conduct or Health Committee.[26]On the 17 March 2011, the Care Standards Tribunal received an appeal form appealing against the decision of the PPC. The appeal was made on the basis that there were no detailed allegations for the PPC to consider; that the PPC made findings of fact based on the evidence; appeared to make a finding of misconduct against the Appellant and setting out five major questions to be addressed. It was alleged that the PPC had exceeded their authority in making the ISO and sought to have the ISO revoked.[27]Following the decision, the Respondent circulated a copy of the decision to every local authority in Wales with a covering letter urging them to "pass on this information to the relevant departments or teams to ensure that Ms Borley is not currently able to work as a social worker/care worker, should she approach you for employment." The Appeal Form stated that the Respondent had failed to act in a timely fashion and imposed an ISO on the basis of making findings that it had not right to make and made an inappropriate decision to disseminate its decision to every Welsh local authority.[28]The Respondent resisted the appeal and the matter proceeded to be heard in the Cardiff Magistrates' Court on the 1 April 2011.[29]Within the tribunal bundle, a complete copy of the Stage 2 Complaint report was included and a summary of the findings recorded that Mr Bevan had concluded that around 60% of the Stage 2 complaints had some validity. In paragraph 1.2 he stated:
" The bulk of the complaints that have been made are about aspects of Debbie Borley's conduct and practice. I have concluded that 7 of the 8 groups of complaints have overall validity and that the 8 th group has partial validity. I have concluded that more than 54% of the complaints are entirely valid and that another 8% are partly valid. I have not been able to make findings in 9%. This leaves about 29% that I have concluded are not valid. In the main....this is because of the absence of the records that might have supported the validity of the complaints."
[30]At paragraph 6.3 of his report, Mr Paul Bevan recorded that Mr Walker, Head of Child and Family Services in the City and County of Swansea Council had "..taken the time to hear what the complainants have to say, he has accepted the validity of their concerns and he has responded to them by being specific about how the LA will make necessary changes in order to address them." Submissions[31]Mr Mortimer provided a short chronology setting out the sequence of events leading to the appeal. He confirmed that the only ground for resisting the appeal was the protection of members of the public. He challenged the Appellant's allegation that the Respondent had failed to act in a timely fashion and that it had made inappropriate findings at the meeting.[32]He made reference to the risk posed to children who might be allocated to the Appellant within her caseload and submitted that the decision referred to the reasons for their conclusions rather than to findings of fact binding on any other tribunal. He drew a distinction between the current case and the High Court decision in Sheikh where the appellant had been a dentist found guilty of misconduct by financial impropriety and was specifically describe as not posing a direct risk to the public. Mr Mortimer drew attention to Mr Paul Veban's report which indicates a risk to children by the Appellant's practice and conduct.[33]Mr Mortimer further challenged the allegation that the Respondent had failed to act in a timely fashion confirming that the complaint had been received in October 20910, considered by the first PPC on the 18 November 2010 and had the second hearing arranged on the 21 January 2011 and the delay from that date had been as a result of the Appellant's request for an adjournment. He submitted that this delay was not unreasonable and could not be compared with the situation in the Bradshaw case.[34]It was submitted that the allegations against the Appellant are serious, confirmed by the evidence of Mr Bevan's report, that the issues were wide-ranging and that the Appellant herself had considered her conduct of the case to be good, betraying a lack of insight into the shortcomings of her practice.[35]Mr Weinbren submitted that the responsibility of the PPC was to consider the gravity of the allegation and the nature of the evidence presented against the Appellant. He referred to Schedule 1 paragraph 4(3)(a) of the Care Conduct Rules Wales 2005 and submitted that the Notice of referral was defective in that it did not contain a clear set of allegations which the Appellant could be expected to defend at the meeting. He further submitted that the Stage 2 Complaint report of Mr Bevan did not contain allegation but contained the opinions of an external investigator which will be taken apart at the conduct committee hearing. He submitted that it offered opinion and not evidence or allegations.[36]He further submitted that the report had not been validated by the Council of the City and County of Swansea. He produced a reference prepared by the Council for the Appellant dated the 1 February 2011 which he submitted showed that the council did not offer any condemnation or dissatisfaction with the Appellant's work during her employment there.[37]Turning to the complaint made by Mr and Mrs Edwards, Mr Weinbren submitted that the complaint was one complaint from the parents of a father involved in acrimonious proceedings which contained an allegation of bias. He referred to the three year admonishment previously received by the Appellant in response to a complaint made in 2006 and which was reduced to a one year admonishment by the Care Standards Tribunal in August 2010. Mr Weinbren submitted that too much weight had been placed upon the admonishment by the PPC and that they should not have had a right to rely on it at all.[38]In the Appellant's view the imposition of an ISO was not a proportionate action by the Respondent, who had not, it was alleged asked the right questions at the meeting. The effect of the ISO and the subsequent action taken to circulate the decision to every local authority in Wales was to deprive the Appellant of her livelihood and in fact, exceeded the remit of the PPC because it also prevented her from being employed as a care worker, where the PPC was considering her registration as a social worker. Tribunal's conclusions with reasons[39]We considered all of the evidence presented within the documents contained in the Tribunal bundle and the additional documentary evidence presented on the day of the hearing, together with the submissions made on behalf of both parties.[40]From reading the documentary evidence we noted that there were areas where we were concerned about the processes implemented by the Respondent. First, the letter of the 7 January 2011, headed Notice of Referral did not clearly set out the allegations made against the Appellant and it would have been easier for her to understand the allegations made had the Notice contained a short summary of the allegations rather than a quotation of the recommendation of the investigating officer.[41]Secondly, the decision of the PPC dated 28 February 2011 sets out the findings made by the committee which we conclude to be findings of fact on the evidence rather than reasons for the decision as submitted by Mr Mortimer. It was not within the PPC's remit to make findings of fact on the evidence and in this sense, their decision was defective.[42]However, in relation to the first area of concern, we consider that the Notice of Referral and supporting documentation enclosed sent to the Appellant by post on the 7 January 2011 was sufficient to meet the requirement of paragraph 4(1) of Schedule 1 of the Care Conduct (Wales) Regulations 2005 and provided the Appellant with the detail of the allegations made against her. The enclosures to the Notice included the full report which set out in detail the areas of concern highlighted in the Stage 2 complaint report of Mr Bevan. We conclude that although in terms of ease of reference, a short summary of the allegations contained within the Notice of Referral would have been much clearer, the Appellant was given the opportunity to read the full report by the investigating officer which identified the areas of concern.[43]The jurisdiction of the tribunal on appeal is not limited to a review of the decision but can also include a rehearing of the original decision. At the hearing, Mr Weinbren confirmed that he was satisfied that the Care Standards Tribunal was not prevented from looking at the decision afresh even if the panel concluded that there were procedural irregularities in the original decision. We consider that the CST's jurisdiction allows the panel to look at the referral and the evidence supporting it and to reach its own conclusion on the basis of that evidence.[44]The allegations made against the Appellant all arise from the report of the Stage 2 Complaint against the City and County of Swansea Council prepared by Mr Paul Bevan. Mr Weinbren submitted that the report had not been validated by the Council, and described it as the opinion of the writer rather than evidence.[45]We noted from the tribunal bundle that in fact the Head of Family and Children's Services in Swansea had "accepted the validity of the complainants' concerns" and because of this we did not accept Mr Weinbren's submission that the report had not been validated. We carefully read the part reference presented on behalf of the Appellant in evidence and concluded that it was very carefully written by her former employers and could be interpreted differently to the interpretation offered by Mr Weinbren. We did not conclude that it reflected the unqualified support of the Appellant suggested.[46]We further noted Mr Bevan's conclusion that seven of the eight groups of complaints made about the Appellant's practice had been found to have overall validity, with the eighth group having partial validity. In view of the fact that there were a total of 68 complaints against the Appellant, this finding is a serious one and whilst it reflects the conclusions of the independent complaints investigator based on the evidence he considered, it must be regarded with the gravity it deserves.[47]We have concluded that the findings of the Stage 2 Complaint report represent serious allegations which are based on tangiable evidence, namely the investigations of an independent complaints officer. The issues raised are real and substantial and have the effect of presenting a set of allegations which the Appellant must answer if she is to show that the complaints are not sustainable. The seriousness of the allegations are compounded by the number of complaints: despite the fact that they emanate from within the same case, they represent a very significant level of concern which appears, on the basis of the information contained within the report, to have been expressed by a number of individuals, apart from the complainants, including other professionals.[48]The nature of the concerns as well as their breadth present, in our conclusion, a public protection issue. We particularly noted that the allegations included a failure to follow procedures in relation to child protection issues and an allegation of bias. Both of these are issues of the highest concern and raise serious public protection concerns. The allegation of inaccurate recording and omissions in paperwork were also relevant to this conclusion but to a lesser extent than the first two.[49]We did not accept the Appellant's submission that the investigations were not timely because the Respondent acted promptly following receipt of the formal complaint on the 12 October 2010, with the preparation of an investigating officer's report and first consideration on the 18 November 2010 and the arrangements for the hearing on the 21 January 2011 to enable the Appellant to have sufficient time to respond to the allegations. The adjournment from that date was at the Appellant's own request with a further request for a postponement of the adjourned hearing on the 17 February 2011 being refused. We do not conclude that the timescale represents an unreasonable delay in this case.[50]Finally, we considered the proportionality of an ISO: we balanced the seriousness of the allegations, the quality of the evidence upon which they are based and the risk to the public against the detriment to the Appellant of being unable to pursue her livelihood. Clearly, there is a detriment to the Appellant of being unable to pursue her chosen career, but we noted that despite the fact that she would have been able to continue to work for Blaenau Gwent Council until the end of March 2011, she had resigned her post there. We have already indicated the seriousness with which we regard the nature and volume of allegations against the Appellant and we have concluded that the nature of the evidence on which the allegations are based is such that the ISO is required on the ground of public protection.[51]Mr Weinbren drew to our attention the fact that the Respondent had circulated information about the imposition of the ISO to all local authorities in Wales. Whilst we cannot take any action in relation to the issue, we consider that such an action was effectively an usurpation of the Appellant's right of appeal against the decision, effectively prejudged the outcome of the Tribunal hearing and as such was inappropriate and wrong.[52]This is the unanimous decision of us all. ORDER Appeal dismissed. The decision of the PPC is confirmed. Meleri Tudur Graham Harper Andrew Wilson