Senyange v HCPC [2012] UKFTT 715 (HESC)

FTT-HESC
Senyange v HCPC
[2012] UKFTT 715 (HESC) · 2012-11-22
[1]Mrs Senyange (the Appellant) appeals against the decision dated 19 th March 2012 of the Conduct Committee (Committee) of the General Social Care Council (GSCC) to remove her from the Register of Social Workers on the ground of misconduct.[2]The appeal is concerned only with the sanction of removal imposed by the committee. The Appellant concedes that the sanction of admonishment would not be appropriate to the circumstances of the case, but submits that a period of suspension should have been imposed. Background[3]The Appellant was a student at Brunel University between 2006 and 2009. She initially used registered childminders to care for her children and legitimately claimed benefits but subsequently used unregistered childminders and used the names of previously used childminders to claim benefits which she spent on childminding and family bills. She made these latter claims purporting that the childminders had themselves completed the forms.[4]The Appellant qualified as a social worker in 2009 and was first registered on 30 October 2009. She obtained employment with Medway Council and started working for them on 30 August 2010.[5]On 19 April 2011 the Appellant pleaded guilty to two counts of dishonesty with a view to gain contrary to s17(1)(a) of the Theft Act 1968 by making claims for Childcare allowance resulting in an overpayment of benefit amounting to £23,144.15. In order to cover for her absence from work whilst at court she told her employers that she was absent due to a family emergency.[6]On 26 April 2011 Mrs Senyange was sentenced to 12 weeks imprisonment suspended for 12 months and ordered to complete 200 hours of unpaid work for the community. She told her employers that she had problems with her car tyres which had led to her absence from work on that day. She was confronted by her employers the following day and subsequently dismissed on June 3 for gross misconduct.[7]The matter was referred to the GSCC and following a hearing on 19 March 2012 at which the Appellant gave evidence the conduct committee found that her actions both in respect of the criminal charges and the deception of her employer amounted to misconduct and decided that the appropriate sanction was removal from the register. The Appellant appealed to this Tribunal against the decision as to sanction only on 16 April 2012. The Law[8]This appeal is brought under s 68 of the Care Standards Act 2000. The Tribunal may confirm the initial decision or direct that it shall have no effect.[9]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 and the evidence of Mrs Senyange. The Appellant’s evidence[10]Mrs Senyange gave brief evidence and was asked questions by the Panel and Counsel. She was obviously very distressed about giving evidence but composed herself to explain her situation and what had happened. She told us that her first visit to the police station in January 2011 was traumatic and that she had been advised by a Solicitor to make no comment at that stage. When she returned to the police station a few weeks later she made a full admission and she pleaded guilty at the Magistrates court. She said that she intended to tell her employers about what had happened but they had moved office and her supervisor was not an approachable person. She had not had the opportunity to explain the day after her sentence because she had been taken straight to a meeting as soon as she had arrived at her desk. She felt she had been “ambushed” because she was intending to tell her employers that day.[11]Mrs Senyange explained that she is deeply remorseful about her actions and has learnt a lot from her mistakes. She said she has moved away from the area and her old friends, her Partner has settled and her children have grown. She has had some ongoing harassment from a woman who caused her problems in the past but she has support from the church and from her family. She assured us that she would not commit further crime and had started voluntary work with the families of offenders who are in prison.[12]The Appellant also said in her written statement:
“ All I am asking is a second chance so that I can provide for my children. I understand I have committed a crime, a terrible crime, which I do not think it will ever happen again, but this criminal record, I will die with it. They are going to bury me with a criminal record. If I am not able to provide for my children I am nothing .”
The Respondent’s submissions[13]On behalf of the Respondent Ms Daly submitted that the sanction of removal was appropriate because the offences themselves were serious and the offending was systematic, planned and protracted over a period of almost three years and resulted in a high value fraud. Further, the conduct was compounded by the Appellant lying to her employer and missing child protection visits to service users when in fact she was attending court. Ms Daly submitted that this conduct was at the higher end of the scale of dishonesty.[14]Ms Daly also submitted that the Appellant had failed to demonstrate sufficient insight into her conduct and how it could reoccur in the future, thereby presenting a risk to the public. Further, she stressed that public confidence in the profession required removal as a sanction and that overall the sanction was proportionate where there were significant breaches of the Code of Practice. The Appellant’s submissions[15]On behalf of the Appellant Ms De Cordova submitted that “… the harsh reality for this Appellant is that had she been able to engage registered child-minders, who were able to support her training timetable, she could have legitimately claimed these benefits, as she had claimed them legitimately in the past. Whilst the conduct of the Appellant is serious because it relates to dishonesty, this Appellant’s conduct must be distinguished from the type of benefit fraud, which funds a lavish lifestyle, or that which supports those who are not doing anything to make a positive contribution towards society, or that which funds a life of crime. The benefit derived was used primarily to pay for child care, so that this single mother could complete her training and obtain her social work qualification. “[16]Ms De Cordova stressed that of the three missed visits to service users on 19 April 2011 Mrs Senyange had tried to visit two of the families but had been unsuccessful and that the third visit was a joint visit with a Health Visitor who had visited the family. She therefore submitted that although there was a risk of harm to service users it was mitigated by these factors. Further, there was no evidence that Mrs Senyange was due to visit service users on the 26 April.[17]In respect of insight Ms De Cordova submitted that since English is Mrs Senyange’s second language she may have been misunderstood.[18]Ms De Cordova went through the indicative sanctions guide (ISG) and reminded the panel that removal should only be imposed if suspension is not appropriate. She said that in this case the balance of evidence did not require removal and that suspension was appropriate. Tribunal’s decision with reasons[19]We have carefully considered the evidence given by Mrs Senyange, the written evidence and submissions and the oral submissions made on behalf of both parties at the hearing. The burden of proof rests on the Respondent to demonstrate that the removal was and is appropriate.[20]Rule 25 of the General Social Care Council (Conduct) Rules 2008 provides guidance to a conduct committee on considering sanction, stating that the committee must consider the seriousness of the conduct, protection of the public, public interest in maintaining confidence in social care services and the issue of proportionality. We have applied that guidance to our decision making process and have considered the ISG in terms of the appropriate sanction in this case.[21]The GSCC Code of Practice states that Social Workers must be honest and trustworthy, and the ISG recognises that dishonesty undermines the trust that users and the public have in social services. We note that the ISG states “ Dishonesty, particularly when associated with professional practice, is so damaging to a registrant’s suitability and to public confidence that removal should be presumed as the appropriate outcome ”, however we have not presumed such an outcome, and have applied the law and the guidance to the facts of this case.[22]We have borne in mind that there is substantial mitigation in this case. The Appellant admitted the offences and has expressed genuine regret and remorse for her offending, which was due to her clear desire to qualify as a social worker in very difficult personal circumstances. We do not repeat here the circumstances of the Appellant’s personal relationships because they are essentially private matters but it was clear to us that she felt she had no alternative but to act in the way she did. In hindsight she could see that there were alternative courses of action but at the time she did not consider them, and in that respect we conclude that she has some limited insight.[23]In addition, the Appellant was of previously good character and has shown clear dedication to becoming a social worker. The Appellant did not obtain the benefit to pay for an extravagant lifestyle or to fund a drug or alcohol addiction, nor was there any breach of trust or direct theft from service users.[24]There are however significant several aggravating factors in this Case. There was a high value to this fraud, which was planned, involved forging the signature of others without their knowledge, and the conduct was sustained over nearly three years. Whilst Mrs Senyange has shown remorse for her actions we have concluded that she has shown limited insight into the causes of those actions or the way in which future criminal behaviour might be avoided. She remains with her partner and indicated that there had been ongoing problems with his ex mistress.[25]More worrying is the Appellant’s minimisation of the extended covering up of her offences from her employer, in particular her unplanned absences for the plea and sentence, where she could have taken a day’s leave and the effect that that could have had on service users. Mrs Senyange was recently qualified and must have been acutely aware of the risks to families where children are on Child Protection plans of visits being missed and children not seen. The fact that she subsequently made unsuccessful attempts to see them misses the point that arrangements could and should have been made for the visits to take place as planned. Further, the Appellant must have known that a Health Visitor role is very different from that of a Social Worker, hence the need for a joint visit, and that if half of the team was not present it was possible that something might be missed. We have concluded that her attitude demonstrates a serious failure to acknowledge the risks, the seriousness of the breaches of the code of conduct in this respect and a significant lack of insight into this aspect of her misconduct. In this case the breaches of the Code of Practice ranged from a failure to be honest and trustworthy, to honouring work commitments, and declaring matters that might create conflicts of interest. Such misconduct directly impacts on how the Social Work profession is viewed and undermines the integrity of the profession.[26]We also took into account paragraph 5.12 of the ISG which provides “ dishonesty is particularly serious because it may undermine trust in social care services…The public must be able to place complete reliance on the integrity of the registrants ”. We have concluded that this was serious dishonesty capable of undermining trust in the profession irrespective of whether it leads to direct harm to service users or not and have weighed into the balance the fact that that the ISG provides that “ a decision not to remove would require careful justification ”.[27]It is clearly stated in the ISG that the Committee (and therefore this Tribunal) should start with the least severe sanction and move to the next, “only if satisfied that the sanction is not sufficient to protect users of services and the wider public interest”[28]The Appellant concedes that “No sanction” and “Admonishment” would not be appropriate sanctions therefore we have considered suspension first. The ISG provides the following in relation to Suspension:
“Suspension can be used to send out a signal to the social care worker, the profession and the public about what is regarded as unacceptable behaviour. Suspension from the register has a punitive effect, in that is prevents a social care worker from practising under that title during the period of suspension. It is likely to be appropriate for misconduct that is serious, but not so serious as to justify removal from the register; for example, where there has been an acknowledgment of fault and where the Conduct Committee is satisfied the behaviour is unlikely to be repeated. If the evidence suggests that the social care worker will be unable to resolve or remedy his or her failings then removal may be the more appropriate option. However, where the registrant has no psychological or other difficulties preventing him or her from understanding and seeking to remedy the failings, then suspension may be appropriate”
[29]Further, under the heading ‘ General Principles: The public interest and proportionality’ , the ISG states that the Committee is required to consider what degree of protection is required. It states:
“The Committee should be mindful of the message that the imposition of sanctions, and the type of sanction applied, sends to the public, the social work profession and the social care sector. Sanctions have the important function of working as a deterrent to other social care workers. It is also preferable in the interests of public protection, that a Committee has the confidence to apply the severest sanctions where it sees fit”
[30]We have concluded that the limited insight demonstrated by the Appellant, taken with the seriousness of the misconduct, means that there is a real risk that the Appellant’s misconduct could be repeated, and therefore suspension would be inappropriate. Any return to the register should be subject to detailed scrutiny of the Appellant’s position and circumstances at the time, particularly her insight at that stage. In our view an automatic return even after a two year suspension could result in an unacceptable risk to service users from a social worker who has committed serious dishonesty offences which she tried to cover up by active deception putting users at risk.[31]We have borne in mind the fact that “The Conduct Committee should not feel it necessary to remove a registrant who does not present a risk in order to satisfy in order to satisfy public demand for blame and punishment. This should be weighed against the message that removing a social care worker from the register sends to the profession and the public, and the fact that the safety of people who use services and their right to protection from neglect and abuse is more important that the fortunes of any individual registrant”.[32]In all the circumstances of the case and weighing very carefully the substantial mitigation against the aggravating features of the Case we have decided that the seriousness of the misconduct taken with the lack of insight found by both the Committee and this Panel means that removal was and remains a proportionate sanction in this Case. Order The decision of the conduct committee on 19 March 2012 is confirmed. Tribunal Judge Nancy Hillier Lead Judge Care Standards and Primary Health Lists 22 November 2012