England and Wales Care Standards Tribunal

DH v General Social Care Council [2005] EWCST 463(SW) (14 June 2005)
Schedule 6: Social workers/social care workers

DH

Appellant

-v- THE GENERAL SOCIAL CARE COUNCIL [2005] 0463.SW

Respondent

Before: Mr I Robertson Ms M Adolphie Mr J Churchill
DECISION

As reviewed by the Review Decision attached and as approved by the three members of the Tribunal.

On 6 June 2005 sitting at The Care Standards Tribunal hearing centre, 18 Pocock Street, London

Mr M Weinbren (Representative from BASW) for the Appellant

Mrs S Cole Legal Adviser to the General Social Care Council for the Respondents

BACKGROUND

1. Mr DH is a qualified Social Worker having obtained his CQSW on 7 July 1988. On 9 January 2004 he made application to the General Social Care Council (hereafter called the Council) to be registered as a Social Worker in accordance with Part IV of the Care Standards Act 2000. This sets out a statutory scheme for the Registration of Social Care Workers within a scheme of professional Regulation. Registration of Social Workers became compulsory from 1 April 2005.
2. Following DH's application there was correspondence between him and the Council because of a number of irregularities in his application. Following correspondence between the parties the Council formally wrote to DH on 17 November 2004 indicating that they were intending to refer his application to their Registration Committee as they were minded to refuse it. The main grounds for concern raised by the council were firstly the fact that DH had been permanently retired from his position as a Probation Office in July 2000 on the grounds of stress and depression (our paraphrasing) and further that he was not physically or mentally fit, because;

"In your interactions with the council, as evidenced by the documentation you have submitted, and the nature of your contact you have raised serious concerns about your ability to operate as a competent professional and to maintain the trust and confidence of service users by communicating in an appropriate, open, accurate and straight forward way"

"Council is therefore not satisfied that your health condition is adequately managed and that you are able to work safely, and not compromise the health and well being of service users, even with reasonable adjustments. The Council therefore considers that you are not physically or mentally fit for the purposes of registration, and it is minded to refuse your application for registration"

3. As indicated the matter was referred to the Registrations Committee which makes the ultimate decisions to refuse registration under the General Social Care Council (Registration) Rules 2003 (see below). The Committee met initially on 16 December, when it adjourned to seek further information, and on 16 February when it had before it new submissions from DH together with an application to make oral submissions and be heard on the decision. The committee decided to refuse to allow oral representations and decided the matter on paper. They considered the papers and heard from their medical adviser who advised as follows;

"….The criteria for retirement [from the probation service] requires the applicant to be considered permanently unfit until normal retirement age to carry out the duties of the post. He considered there are similarities between the role of a probation officer and that of a social worker in terms of volume of work, pressure of work and administrative requirements. Medical retirement would normally only be granted where all treatment options have been exhausted or where the condition is chronic and recurrent. On that basis, he advised that the similarities between the two jobs would be such that, if an applicant were found unfit for one, this is likely to apply to the other"

4. The Committee made the following findings;

"The committee considered the additional papers and the tabled evidence. The committee noted that the applicant had passed pre employment health assessments over the past two to three years and regained his driving licence. However, there was no evidence that reports were obtained from his treating medical specialists for the condition that led to his retirement. Furthermore, those assessments were for a specific purpose, unconnected to the Committees function.

In addition, the committee considered that the tenor and content of some of the Applicants communications with the Council suggested that the Applicant was still experiencing difficulties in coping with pressure

Given the above, and in particular the fact that the Applicant had been retired on ill health grounds in 2000, the committee was not satisfied that he was physically or mentally fit now to perform the whole or part of the work of a social worker"

5. DH appealed to this tribunal from that decision on 10 March 2005. Directions were given on 14 April and that matter came before us on 6 June 2005.
6. Before leaving the background we do consider that there are two matters in DH's background that are significant but do not appear to have been considered as such by the Council namely two convictions for drink driving one in June 1996 and one in September 2000. It appears to us that such convictions at least raise prima faecie questions both of character and use of alcohol and we are surprised that the Council did not explore these issues more thoroughly. Nonetheless they chose not to do so, they do not form part of the reasons for their decisions and we do not consider it appropriate at this time, particularly in the light of the psychiatric report we have now considered, to pursue this issue.

LEGAL FRAMEWORK

7. Part IV of the Care Standards Act creates a framework for the Regulation of Social Care Workers. A General Social Care Council is set up for England (with the equivalent for Wales) whose duties are to promote high standards of conduct and practice among social care workers and high standards in their training. The Act defines Social Workers and Social Care Workers and provides that the Council shall maintain a register of social workers and social care workers. The duty to Register as a Social Worker came into force on 1 April 2005 and failure to do so has sanctions as from that date it is illegal to take or use the title of social worker and such an offence is punishable by a fine.
8. Applications for Registration are governed by S58 Care Standards Act 2000 and by Rules made under Ss 57 and 60, namely The General Social Care Council Rules 2003.

S58 states as follows;

(1) If the Council is satisfied that the applicant-

(a) is of good character

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

(c) satisfies the following conditions

it shall grant the application, either unconditionally or subject to such conditions as it thinks fit; and in any other case it shall refuse it

(2) The first condition is that-

(a) in the case of an application for registration as a social worker-

(i) he has successfully completed a course approved by the Council under S63 for persons wishing to become social workers;

(ii) he satisfies the requirements of Section 64; [qualifications gained outside England] or

(iii) he satisfies any requirements as to training which the council may by Rules impose in relation to social workers………………..

(3) The second condition is that the applicant satisfies any requirements as to conduct and competence which the Council may by rules impose.

9. The Registration process is governed by The General Social Care Council (Registration) Rules 2003. Rule 4 determines the contents of the application and what the Applicant has to provide, by Rule 4(4) –

"The council may, for the purposes of determining the application, seek information additional to that provided by the Applicant from both the Applicant and any other person or source.

4(5) Where the council receives information under paragraph (4) above, it shall inform the Applicant of the information received, and shall give the Applicant an opportunity of commenting on that information within the period of 28 days beginning after the day on which the information is imparted to the Applicant"

10. By Rule 9 a Registration Committee is established. It consists of up to 5 members with a quorum of 3. The majority of its membership are Lay members but at least one sitting member has experience or understanding of the area of social care work practiced by the Applicant.
11. By Rule 11 the Council must refer any application it is not minded to grant or to grant with conditions to the Registrations Committee.
12. Rule 12 makes provision for the non participating, non voting presence of a Legal Adviser at Committee meetings
13. Rule 13 makes provision for a medical adviser in the following terms;

(1) The Registration Committee may, in such circumstances as it sees fit, appoint a medical adviser.

(2) The role of the medical adviser shall be to advise the Registration Committee on any issues that may arise in relation to the physical and mental fitness of an Applicant to perform the whole or part of the work of a social worker.

(3) The registration committee shall maintain a record of any advice tendered by the medical adviser

(4) Where the registrations committee has exercised its discretion to allow the applicant to make oral submissions, the advice of the medical adviser shall be given in the presence of the parties

(5) The parties shall be entitled to make representations on the contents of the advice given by the medical adviser

(6) The medical adviser shall not participate in the decision making of the registration committee, and shall not be entitled to vote.

14. Rule 15 deals with evidence before the committee;

(1) The Registrations Committee may, at its discretion, allow the Applicant to make oral submissions, but shall not receive oral testimony from witnesses.

(2) The Registration Committee may receive documentary or oral evidence submitted by the Applicant or the council, provided that any written statement shall be signed by the person making it and shall contain a statement of truth.

15. Rule 16 sets out the procedure to be adopted where the Council are minded to refuse registration and sets out the applicants rights before the registration Committee, procedure to be adopted and powers of the committee. This includes the power to adjourn and hear representations, if allowed, through legal, Trade union or professional association representative.

THE EVIDENCE IN THE CASE

16. The Registration Committee had before it a number of papers running to 142 pages of Councils evidence and 29 pages of evidence from DH together with another 6 pages tabled on the day, at the hearing on 16 February it had before it 9 additional pages from the Council and 27 from the Applicant together with 3 additional pages from the Council tabled on the day
17. The bulk of the papers consist of copies of the application as amended and correspondence dealing with missing information and DHs response. Whilst that correspondence reveals frustration and annoyance from DH some of which may be a little ill placed it does not in our view demonstrate untoward anxiety or stress.
18. On 20 October DH's GP provided a report which states as follows;

"DH has been diagnosed to suffer from dyslexia and he has noted reduced hearing in his left ear. In the past he has suffered problems with anxiety and depression. He has received help for this in the form of psychotherapy and a Dyslexia programme, which have been of benefit to him. He is well informed and has insight into his illness. He appears to be compliant with medical advice.. DH is an intelligent man and his CV is impressive. He reportedly feels well and he is well kept. He displayed excellent reasoning to explain his time off work and his decision not to take medication. He has no history of self-harm, eating disorder, alcohol/drug dependency or misuse. He drinks sensibly and socially. He is thinking and questioning logically against previous decisions not to support him in his chosen career"

19. On 25 October 2004 DH was sent a self assessment questionnaire which he completed. On 28 October the Probation Service sent the Council a letter confirming;

"I can confirm that DH was employed by X Probation service, in the role of probation officer. He was employed from 19/9/94 to 14/10/00 when he left on the grounds of ill health"

20. DH provided a long letter dated 28 October returning the self assessment form and setting out his case in particular detailing the circumstances of his retirement

"During 2000 I had been feeling stressed and burnt out coping with demands of the work of a probation officer. Within this period I found out that I had dyslexia and was screened by an employment service special needs advisor and referred to an employment service specialist psychologist who undertook a battery of tests to examine the nature, type of my dyslexia. From this I understood why I had been feeling cumulative effects of a heavy caseload and possible burn out for 2/3 years. At this point it was suggested I should be referred to the dyslexia institute for further assessments and work to enlighten me to strategies and assistance with this condition. I decided that I needed time off and went to see my GP and was given a period of ten weeks sickness certification to cover the suggested weekly sessions at the dyslexia institute. During this period I began to feel more positive and thought of returning to work. However, X Probation service required me to see their medical physician who decided it was pertinent to retire me under stress and dyslexia health grounds. I felt it was inappropriate given that I was burnt out, possibly traumatised and emotionally low and suffering mild depression. It was also a serious career-ending move. I did sign the forms as I felt low and unable to fight the move"

21. He then sets out the steps he took to address his problems, completing work at the dyslexia institute, seeing a private consultant psychologist, drawing up a programme of stress relief via activities, vitamins and lifestyle changes. He did this through his GP supervised by a CPN. He was initially in receipt of incapacity benefit but after a year following a medical this benefit was stopped. He undertook courses to obtain a post graduate diploma in Housing management and Policy. He set out his employment history and work with a school that followed a local authority Occupational Therapy medical. He undertook a further medical with another authority for a further position that he passed. Since when he has worked with young people and in sheltered Accommodation.
22. He presented a statement and supporting documentation for the initial hearing including a letter from his GP reemphasising his fitness and various testimonials setting out praise for the quality of his work, including one from the Probation service itself, together with copies of the OT medicals he undertook from which it is clear he did not hide the reasons for his retirement from the probation service.
23. On 27 November DH applied for an oral hearing to deal specifically with issues raised by the council about his communications with them.
24. On 16 December the Committee met and adjourned to seek further information namely;

a) Occupational health records from the Probation Service

b) GP notes

c) Report from the Dyslexia institute

d) Further information surrounding the drink driving convictions

e) Details of roles and responsibilities that the applicant was carrying out at the point when he was retired on ill health grounds

f) Any other information relating to the Applicants state of health currently and since 1991 which the Applicant considers relevant to the Registration Committees decision

25. The Committee meeting on 16 February had before it notes of a telephone conversation with the Probation service confirming that the Occupational Health records were missing. DH provided a letter dated 4/1/05 giving consent to release of his Occupational Health records, attaching the final report from the Dyslexia Institute and clarifying the circumstances surrounding his conviction. With regard to his GP records he stated as follows;

"Whilst I would not in principle have had any objection to the release of my GP records, Dr Z has indicated to me that he considers such a request would question he and Dr D's integrity as professionals. They clearly consider that they have both examined my capacity and reflected the medical records. I am in the difficult position of not wishing to withhold consent for obvious reasons, but equally ask the committee to respect the professionalism of these two GP's"

26. The committee also had the report to the Probation Service from their medical adviser dated 4/7/00. This stated;

"This man, as you say has worked as a Probation Officer for approximately 8 years. He has been absent from work since May and he has had an anxiety and a depression. He recently has been assessed for dyslexia and it was found that he has got quite a degree of dyslexia. He is attending a course of counselling at the Dyslexia Institute and this is benefiting him.

His major problem appears to be that he fractured a finger and fell behind with his administrative work and as a result became absolutely chaotic. He finds that now he cannot cope with his administrative work, although he feels he can cope with a certain amount of the work as a Probation Officer. As a result he is not keen to stay within the service and is happy to find alternative employment. At the present time he is depressed and unable to cope with his workload.

I feel that the only way forward in this particular case is that this man should be retired and look for alternative employment"

27. The same Doctor signed a Certificate dated 31 July 2000 in the following terms:

"I certify that in my opinion, the above named is incapable of discharging efficiently the duties of his present employment by reason of permanent ill health or infirmity of body or mind"

28. There is one further significant piece of evidence which was before us but not the committee namely a report from a Consultant Psychiatrist upon the health of DH that reviews his history and concludes;

"He has never fulfilled the DSM-IV-TR" criteria for major depressive episode. It is just possible he is more vulnerable to major depression in future because of his mothers history but that does not preclude him psychiatrically from working in child care or the probation service because if he ever has a full blown major depression it is perfectly treatable disorder and from his existing knowledge of Mental Health he fully understands what the symptoms are and would recognise them. It seems to me that there are no mental illness around against DH working in the aforementioned areas. He understands if he ever has any problems in the future that he may seek help in the form of medication and psychotherapy My belief is that if he works in a properly protected environment he is still scarcely more likely than the general population ever to decompensate into a major depressive episode"

PRELIMINARY ISSUE

29. It appeared to us that the Psychiatrists report was categorical in its terms and we therefore asked Mrs Cole whether the Council would reconsider its decision in the light of this. A problem quickly emerged however as although Mr Skidmore is a very senior officer of the Council their own rules do not allow delegation of such decisions to officers. Accordingly Mrs Cole asked for an adjournment to allow this additional information to be considered by the Registrations Committee. Mr Weinbren opposed this on a number of grounds firstly that the committee decision was in any event unsustainable and that accordingly the report did not materially effect the case, secondly that an adjournment would cause indefinable delay with no guarantee of a change of heart from the committee, thirdly that we were already seized of the matter and fourthly that DH had already suffered significant financial loss and had the offer of a job starting on 1 July which he would lose if a favourable decision were delayed.
30. We considered that it was inappropriate to adjourn as we considered that such an adjournment would cause unreasonable delay and expense and that as we were seized of the matter we had the same powers as the Registration Committee.
31. We are troubled by the lacuna in the Rules. Once the Tribunal is seized of a matter such as this it is essential that those representing the Council are in a position to make decisions before the tribunal. To refer each matter regarding the conduct of the case to the Committee will lead to delays and potential injustice. It may also result in the Council being made the subject of Costs applications. We urge the Council to review its rules to allow a degree of delegation in cases before this Tribunal.
32. Having heard submissions on the substantive case from Mrs Coles we took the unusual step of firstly not seeking to hear from Mr Weinbren and secondly announcing our decision immediately that we would uphold the appeal.

ANALYSIS

33. The General Social Care Council has been entrusted by parliament with responsibility to regulate the social care profession. Their primary duty is to the public to ensure that standards in the field are maintained and improved. Where they consider that any of the statutory requirements for Registration are not fulfilled they have a duty to act upon this rigorously. In the light of current case law in other fields of Registration it is probable that once they have identified a problem the onus is upon the applicant to show their suitability. Nonetheless their decisions have very serious consequences for Applicants they can at a stroke end a career and accordingly they have a duty towards Applicants to act fairly on a clear and proper analysis of the evidence and not based upon assumption or conjecture. They must accord the Applicant a fair hearing in accordance with the Human Rights Act and must provide carefully argued reasons for their decisions.
34. We were very troubled by a number of aspects of this case.

ORAL REPRESENTATIONS

35. We note that the Rules give the Committee discretion to allow oral representations. They are silent on the criteria to be applied. The Committee has to fulfil a very onerous task it is performing a public function and is bound by the Human Rights Act to act fairly. In our view where consideration is being given to refusal of registration the effect of which is to end a career and impact upon the ability of a person to earn their living, the presumption should be in favour of allowing oral submissions save when there is good reason not to. In a case such as this where the reasons advanced by the Council include a subjective analysis of the Applicants circumstances based upon their dealings with him it is essential that an oral hearing is allowed where sought.
36. In our view the committee having refused the application, and thereby denied themselves the opportunity of evaluating DH's presentation and responses to them, were barred from making the assertion that they did that the communications still showed he had difficulty dealing with pressure. Furthermore from our consideration of the papers there is nothing within the letters and E mails from DH which would lead a reasonable person to come to the conclusions they did. Whilst displaying a degree of frustration they were reasonably polite, in no way abusive or offensive and set in the context of a person suffering from dyslexia.

ROLE OF THE MEDICAL ADVISOR

37. It is clear from the submissions of Mrs Cole that the Committee were influenced by the view of the medical advisor as set out above. It appears to us that the committee gave that advice far too great a weight and by so doing fell into the trap of failing clearly to evaluate the evidence.

REASONS

38. The reasons given by the committee as set out above are in our view wholly inadequate. They effectively amount to three paragraphs, one of which makes the findings we have already criticised regarding the tenor of communications and one of which sets out its conclusions. The committee failed to evaluate the evidence presented by DH and failed to give reasons why they had rejected it. They failed to consider and analyse the various medical reports before them including the Occupational Therapy reports and the reports and letters from DH's GP. They failed to look at the Applicants work record since 2000 in the field of social care, they failed to consider and analyse the glowing references presented by DH. They failed also to attempt to put the decision to retire DH into any context.. There is no evidence that DH was suffering from a major mental illness or that his difficulties were in reality permanent. They failed to evaluate the steps that DH took himself to get treatment or his ability to withstand the stresses of unemployment and redeployment into different areas of work. In short he was refused registration on the basis of the certificate set out above rather than upon a proper consideration of the ample evidence before the committee of his rehabilitation.

DECISION

39. We consider that at the time DH retired from the Probation Service he was suffering considerable stress. He clearly had a huge workload, was having difficulty with administrative tasks because of his only latterly diagnosed dyslexia and had fallen further behind because of a physical injury. That he was failing to cope appears to have been accepted by both himself and his employer. A proper analysis of the report prepared by the Probation Services medical advisor shows quite clearly that the decision was one of expediency based upon the circumstances prevailing at the time. One cannot determine that a person who had apparently, on the records before us conducted himself conscientiously in his job for a number of years, from permanent exclusion from his chosen field based upon a short certificate of permanent illness. One has to evaluate progress since that date. DH has produced evidence of treatment regimes that he has undertaken, medical assessments he has passed, of courses taken and passed and of employment in the field of social care since 2000. None of these present the same picture of the man who failed to cope in 2000. On the contrary they show a picture of a man determined to pull himself up and get on with life. They show a picture of a man who having suffered adversity has tackled it head on.
40. For the reasons outlined above we would have allowed this appeal in any event. Having now had the benefit of considering the psychiatric report prepared upon DH we are strengthened in our views.
41. Accordingly we allow the appeal and Order that DH's name be placed on the Register of Social Workers.

This is the unanimous decision of the Tribunal.

Mr I Robertson (Chairman)

Ms M Adolphie

Mr J Churchill

Date: 14 June 2005

Reviewed: 7 November 2005