Kakeeto v GSCC [2011] UKFTT 476 (HESC)

FTT-HESC
Kakeeto v GSCC
[2011] UKFTT 476 (HESC) · 2011-08-01
[1]This matter was considered on the papers at the request of the parties. Ms Kakeeto, (the Appellant) appeals under section 68 of the Care Standards Act 2000 against the decision of the Conduct Committee of the General Social Care Council (“the Respondent”) made on the 22nd February 2011 to remove the appellant from the Register.[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 General Social Care Council (Conduct) Rules 2008.[3]The Conduct Rules provide at Schedule Rule 25 :
“25. (1) Upon a finding of Misconduct, the Committee may: (a) admonish the Registrant and make a direction that a record of the admonishment shall be placed on the Registrant’s Entry in the Register for a period of up to 5 years; and that the Registrant be informed that details of such admonition shall remain in the Council’s records and may be taken into account in future Council proceedings or (b) make an order suspending the Registrant’s registration for a period not exceeding two years (‘ a Suspension Order’); or (c) make an order for removal of the Registrant’s registration from the register (‘ a Removal Order’). (d) revoke any Interim Suspension Order imposed by the Preliminary Proceedings Committee. (2) In deciding what sanction is to be imposed, the Committee shall take into account: (a) the seriousness of the Registrant’s Misconduct; (b) the protection of the public; (c) the public interest in maintaining confidence in social care services; and (d) the issue of proportionality.”
[4]The test we have to apply was whether or not the decision was wrong, paying due regard to the reasons given by the Conduct Committee who not only read evidence but heard the advocates.[5]The hearing was conducted by consent of both parties as a paper hearing with written submissions. The Tribunal considered the bundle of 313 pages.[6]The Appellant qualified as a social worker in 2000. There have been no complaints or concerns raised in respect of the standard or quality of her work as a social worker to date aside from this matter.[7]This case emerges from the appellant receiving a criminal conviction for failing to stop after an accident, and for failing to give a specimen of breath on 20th September 2007, whilst employed as a Social Worker for Tower Hamlets London Borough Council. Thereafter, that she dishonestly failed to declare her conviction to her employer, to the General Social Care Council, and on an application for an enhanced Criminal Records Bureau check. Ms Kakeeto admitted the facts relied upon by the General Social Care Council, and that they constituted misconduct. Her admissions were accepted at both stages, and at the sanction stage she was removed from the register. It is against that sanction that she appeals. The appellant has set out her version of the events, much of it denies the commission of offences which she has been convicted of, the principle example being that she did not believe she had refused to provide a sample. It is not our role or the role of the GSCC to find the facts in her criminal case except in so far as it may have a bearing upon her registration. What is clear is that she was convicted, and it was regarded as more than the technical offence that she describes. She was disqualified for a year, which is less than normal (the starting point is 17 to 28 months for a refusal to give a breath specimen if done deliberately according to the Magistrates guidelines) and conditionally discharged, the accompanying fine of £250 for failing to stop and report an accident demonstrate that overall the offending was considered as being at the less serious end of the spectrum or there was evidence of substantial mitigation. The Magistrates guidelines do indicate that the penalty will be reduced where there was a genuine attempt to provide a specimen which failed, that would appear to be the position here. It should be noted however that despite her continued protests it is clear that the appellant has pleaded guilty to damaging another vehicle and driving from the scene. The appellant then compounded her position by considering this a minor motoring matter and failing to report this to her employers, allowing her employers to pay her an essential car users allowance whilst disqualified and failing to disclose this matter on a CRB check, although even motoring convictions are requested at some points in the form. The matters were discovered when the CRB check revealed the conviction. The formal charges were: “ 1. On 18 July 2007,1.1 Failed to provide a specimen of breath for analysis.1.2 Failed to stop your motor vehicle at the scene of an accident. 2. On 20 September 2007 you received a conditional discharge for 12 months, and were disqualified from driving for 12 months in respect of one-offence of failing to provide a specimen of breath for analysis without reasonable excuse, contrary to section 7(6) of the Road Traffic Act 108 and Schedule thereto. 3. On 20 September 2007 you received a fine of £250 in respect of an offence of failing to stop a motor vehicle at the scene of an accident, contrary to section 170(4) of the Road Traffic Act 1988 and Schedule thereto, and were ordered to pay £150 costs. 4. Did not disclose to your employer, London Borough of Tower Hamlets, your conditional discharge, fine and disqualification from driving imposed on you on 20 September 2007 by Barking Magistrates' Court. 5. Did not disclose to the General Social Care Council your conditional discharge, fine and disqualification from driving imposed on you on 20 September 2007 by Barking Magistrates' Court. 6. Did not declare your conditional discharge, fine and disqualification from driving imposed on you on 20 September 2007 by Barking Magistrates' Court, when completing your renewal of registration form dated 20 December 2007. 7. Did not declare your conditional discharge, fine and disqualification from driving imposed on you on 20 September 2007 by Barking Magistrates' Court, when completing your CRB Disclosure Application form dated 30 September 2009.[8]Claimed an essential car users allowance from London Borough of Tower Hamlets whilst disqualified form driving.[9]Your actions set out in 4,5,6 7 and 8 above were dishonest.” 8. The Appellant admitted all allegations and accepted that it constituted misconduct. 9. In deciding the penalty for these matters it is important to consider the evidence as a whole. The appellant has been a social worker for 10 years or more and there has been no cause to question her honesty at work. that is an important consideration, and we consider that it deserves more with that the committee have recorded. They did mention that the appellant had no previous disciplinary record, but that of course applies at day one of a career, such a record at work gathers more weight as it proceeds, but at the time of her hearing the appellant had aside from these matters been entirely reliable.[10]Matters of public confidence were considered by the committee, we consider that the public would balance this behaviour against 10 years of otherwise good behaviour and in that way place the present behaviour in a proportionate context, including the loss of her employment with Tower Hamlets. We do not find that the offences are not serious, although they were apparently found to be of a somewhat lesser nature by the Magistrates. We do see that disclosure to an employer is important, as is the CRB process, and behaving as the appellant did without substantial evidence that it need not necessarily affect the necessary trust and confidence that an employer and the public must have in a social worker would leave no alternative to removal. We are less concerned about the car users allowance, our understanding of this is that it is truly a technical offence, had the allowance not been paid in this form, it would have been paid in another as essential Travel Allowance, it was repeatedly asserted that there was no financial gain indeed at page 18 at E of the transcript of the proceedings before the committee we note that she lost money claiming a lower allowance and this was not contradicted, that is a good example of technical in our view.[11]The indicative sanctions guidance has this to say about removal:
“Removal is the sanction for serious, grossly negligent or reckless acts to include those involving; abuse of trust such as sexual abuse, dishonesty or persistent failure. Removal should be used where there is no other way to protect the public, of example, where there is a lack of insight, continuing problems and a pattern of unacceptable behaviour or denial.”
[12]Balancing all of the features present we consider that the penalty was disproportionate because of the period of good service and the particular nature of the incident itself from which the dishonesty flowed, which in itself did not indicate dishonesty and that the dishonesty was limited to one type of situation that is false declarations relating to a conviction, and not aimed at service users. We are also influenced by the complete acceptance of the charges by the appellant, and the lack of gain. We do not consider that removal is the only way to protect the public or that the public would consider that these particular circumstances would lead to a lack of confidence such as to require removal of registration.[13]The appellant has expressed remorse and done what is practical to reinforce this by full admission. In the circumstances we consider that an appropriate penalty would be that the appellant should be admonished and that this should remain upon her record for a period of 2 years. This is not a technical matter, it will have effects on her career far into the future, and that must be appropriate for the serious elements of this matter Decision The Appeal is allowed. The decision to sanction the Applicant by way of removal is not upheld. We substitute a decision that an Admonishment is recorded on the Appellant’s registration for two years from the date of the original decision. Therefore the Admonishment will be removed on 22nd February 2013. Judge John Aitken Deputy Chamber President Health Education and Social Care Chamber 1st August 2011