England and Wales Care Standards Tribunal

 


DH v General Social Care Council [2005] EWCST 463(SW_Review) (7 November 2005)

DH

Appellant

-v- GENERAL SOCIAL CARE COUNCIL

Respondent

[Review Application] [2005] 0463.SW Before: His Honour Judge David Pearl, President Mr Ian Roberston Mr Mark Rowland

Mr Mark Shaw QC, instructed by Field Fisher Waterhouse, appeared for the Respondent.

Mr Martin Weinbren, an advice and representation officer of the British Association of Social Workers, appeared for the Appellant

REVIEW DECISION

Background

1. The Respondent has applied for a review of a decision of a Tribunal given on 14 June 2005. That Tribunal consisted of Mr Robertson, as nominated chairman, and two nominated members of the lay panel. However, because the application for review appeared to raise important questions of law as to the scope of the power of review and as to the practice to be adopted by the registration committee of the Respondent, the nominated Chairman, with the consent of the parties, directed that the application be heard by a Tribunal consisting of himself, the President and another member of the chairmen's panel nominated by the President.
2. This raises the question whether the Tribunal is validly constituted. Regulation 25(4) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 requires that any application for review, other than one that has been dismissed by the President or chairman of the original Tribunal as having "no reasonable prospects of success" under Regulation 25(3), must be determined by a "Tribunal". Paragraph 1(2) to the Schedule to the Protection of Children Act 1999 states that the Tribunal shall consist of a Chairman nominated by the President from the chairmen's panel, and two other persons nominated by the President from the lay panel. (Regulation 5 of the 2002 Regulations provides, as the Act fails to do, that the President may appoint himself chairman.) A Tribunal must be constituted in accordance with the legislation and the parties cannot confer jurisdiction on an improperly constituted Tribunal merely by giving their consent to it hearing the case. Accordingly, we are drawn to the inevitable conclusion that this particular Tribunal, convened to consider the review application, is not a validly constituted Tribunal.
3. We drew this difficulty to the attention of Mr Shaw and Mr Weinbren. They were anxious that we should hear argument and give guidance on the issues raised by the application, even if we had to do so on an extra-statutory basis. We are prepared to consider the central issues arising on this application on an extra-statutory basis, but only because we do not consider that there can be any real doubt as to the answer to be given to the principal question of law upon which the parties seek guidance. Plainly we cannot alter the original decision, but the members of the lay panel who sat with Mr Robertson have read our decision in draft and agree with it. The original Tribunal will therefore give effect to our decision without themselves giving any further reasons.
4. It is to be hoped that a way can be found through legislation to enable the President of the Care Standards Tribunal to appoint a tribunal of three members of the chairmen's panel to give guidance or to determine a difficult point of law.

The facts of this case

5. We turn to the facts of the case insofar as they need be set out again for the purpose of this application. The Appellant applied to the Respondent (the GSCC) for registration as a social worker. His application was referred to the registration committee of the GSCC because there was a question as to whether he was physically or mentally fit for the purposes of registration. The Appellant asked for an oral hearing before the committee but the request was refused. When the matter first came before the registration committee on 16 December 2004, the medical adviser pointed out that the Appellant had been medically retired from a position as a probation officer in 2000 and that such medical retirement was usually allowed only if the person concerned was permanently unfit for work. Accordingly, the registration committee adjourned to seek further evidence. That included the report dated 4 July 2000 of a doctor who had examined the Appellant on behalf of his employer and the certificate of permanent incapacity signed by the same doctor on 31 July 2000 (see paragraphs 26 and 27 of the decision of 14 June 2005). The Appellant had already supplied a report from his general practitioner as to his current health and, following the adjournment, he supplied further evidence to the effect that he had been found fit for work by a prospective employer, with whom he intended to work if registered by the Respondent.
6. The matter came before the registration committee again on 16 February 2005. The application for registration was refused by a decision dated 18 February 2005. The precise reasoning of the committee was considered by the Tribunal on 14 June 2005 and we need not set it out here. However, in its decision, the committee recorded the advice of the medical adviser in the following terms –

"9. The Medical Adviser considered [section] 58(1)(b) of the Care Standards Act 2000. It was his opinion that the Applicant had been granted medical retirement from his previous occupation of Probation Officer. The criteria for retirement requires [sic] the Applicant to be considered permanently unfit until normal retirement age to carry out the duties of the post.

10. 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."

7. The Appellant appealed to the Tribunal. He produced new medical evidence shortly before the hearing. The Tribunal, in its decision dated 14 June 2005, allowed the appeal and directed that the Appellant's name be placed on the register of social workers. Again, we need not set out the reasoning.
8. The present application arises out of criticisms the Tribunal made of the proceedings before the registration committee. In paragraph 35 of its decision, The Tribunal said that, where there was a request for an oral hearing, "the presumption should be in favour of allowing oral submissions save where there is good reason not to" and that, in this case the request for an oral hearing should have been allowed.
9. In paragraph 37, it said –

"It is clear from the submissions of Mrs Cole [for the Respondent] 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 doing so fell into the trap of failing to clearly evaluating [sic] the evidence. Furthermore the Committee were in breach of their own rules having considered the advice of the medical advisor. Whilst the advice was recorded in accordance with Rule 13(3) [of the General Social Care Council (Registration) Rules 2003] the Committee should have given the parties the opportunity of making representations on the contents of the advice (Rule 13(5)). By refusing an oral hearing they had, in our view, no alternative but to adjourn to give the Applicant the opportunity to consider and respond."

10. In its application for review, the Respondent makes it clear that it does not seek to overturn the Tribunal's decision in favour of the Appellant. However, it contends that the criticism of the registration committee contained in the last three sentences of paragraph 37 of the decision is misconceived and that, if the Tribunal's approach to the Rules were to be adopted, the majority of cases before the registration committee would have to be adjourned at great inconvenience and expense.

The scope of the power to review a decision

11. This raises a preliminary issue as to the scope of the power of the Care Standards Tribunal to review its decisions. Can a decision be reviewed if there is no challenge to the outcome? The legislation is not entirely clear on the point. So far as is material, regulations 23, 25, 26 and 29 of the 2002 Regulations provide –

"23. (1) The Tribunal's decision may be taken by a majority and the decision shall record whether it was unanimous or taken by a majority.

(2) The decision may be made and announced at the end of the hearing or reserved, and in any event, whether there has been a hearing or not, the decision must be recorded without delay in a document signed and dated by the chairman …

(3) The document mentioned in paragraph (2) must also state –

(a) the reasons for the decision; and

(b) what, if any, order the Tribunal has made as a result of its decision.

…

25. (Z1) ……

(1) A party may apply to the President for the Tribunal's decision to be reviewed on the grounds that –

(a) it was wrongly made as a result of an error on the part of the Tribunal staff;

(b) a party, who was entitled to be heard at a hearing but failed to appear or to be represented, had good and sufficient reason for failing to appear; or

(c) there was an obvious error in the decision.

…

(3) An application under this regulation may be refused by the President, or by the chairman of the Tribunal which decided the case, if in his opinion it has no reasonable prospects of success.

…

(6) If, on the application of a party or on its own initiative, the Tribunal is satisfied as to any of the grounds referred to in paragraph (1) –

(a) it shall order that the whole or a specified part of the decision be reviewed; and …

…

26. (Z1)...

(1) The Tribunal may, having reviewed all or part of a decision –

(a) set aside or vary the decision by certificate signed by the chairman …; and

(b) substitute such other decision as it thinks fit or order a rehearing before the same or a differently constituted Tribunal.

29. (1) …

(3) Clerical mistakes in any document recording the decision of the Tribunal or a direction or decision of the President or the nominated chairman, or errors arising in such documents from accidental slips or omissions, may at any time be corrected by the chairman or, as the case may be, the President or nominated chairman, by means of a certificate signed by him.

…"

12. At first sight, it appears that the legislation draws a clear distinction between a decision and the reasons for the decision. However, in our judgment, the word "decision" in regulation 25(1)(c) must include "the reasons" for the decision as well as the decision itself. There are two grounds for this view. First, it is difficult to envisage an obvious error in a decision itself that is not a clerical error of the type that could be corrected under regulation 29(3). Secondly, an obvious error in the reasoning can vitiate the decision itself and it seems fairly clear that the very purpose of regulation 25(1)(c) is to allow a decision to be reconsidered where there is such an obvious error, thereby avoiding an appeal. Therefore, in regulation 25(1)(c), the word "decision" must be taken to include the reasons.
13. That being so, regulation 26(1) must be read in the same light so that, where on review a Tribunal is satisfied that there is an obvious error in its reasons for its decision but is also satisfied that the decision itself is not affected, it may vary decision and substitute a different one that is to the same practical effect but is supported by different reasons.
14. We do not consider that this interpretation will result in a flood of applications for review. The President, or the chairman of the Tribunal which decided the case, may refuse an application if "it has no reasonable prospects of success" and, in our judgment, "success" should be read as meaning a practical advantage. Ordinarily, an applicant will be able to show reasonable prospects of a practical advantage only if there are reasonable prospects of a different outcome of the appeal being achieved following a review.
15. However, we do not consider that a review should be refused where, although the outcome is not challenged, it can be shown that a failure to correct an obvious error in the Tribunal's reasoning would have an adverse effect on the applicant. One example would be where an obviously wrong finding of fact may affect the applicant's reputation and prospects of finding further employment. It is in the interests of justice that there should be finality in litigation but it may also be in the interests of justice that an obvious error should not be perpetuated.

The application in the present case

16. In the present case, the applicant Respondent submits that the Tribunal's reasoning is erroneous and will inhibit it from properly and efficiently carrying out its duties as a registration authority if it is not corrected. Decisions of Tribunals may not technically be binding on registration authorities save for the purposes of the particular case in question, but they can reasonably be regarded as authoritative and it would be poor public administration for them to be ignored where Tribunals express general views as to the proper approach to be taken to the registration authority's duties. An erroneous decision can cause confusion.
17. In this case, the comments in the last three sentences of paragraph 37 were made without the Tribunal having heard argument on that particular issue. We are satisfied that those comments do place the Respondent in a difficult position. In those circumstances, we are satisfied that this is a proper case for review, if an obvious error can be demonstrated.

The General Social Care Council's Rules

18. Rule 13 of the 2003 Rules (since re-enacted as rule 16 of the 2005 Rules) provided –

"(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 Registration 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."

19. Rule 12 (now rule 15 of the 2005 Rules) made similar provision in respect of legal advisers.
20. Rule 2(1) (also rule 2(1) of the 2005 Rules) provided –

"'Parties' means the Council and the Applicant (and/or their representatives) at a meeting of the Registration Committee, where that Committee has exercised its discretion to allow the Applicant to make oral submissions."

21. We are satisfied that there was an obvious error in this case, when the Tribunal said in paragraph 37 of its decision that the registration committee was in breach of rule 13(5) in failing to adjourn to give the Appellant the opportunity to comment on the medical adviser's advice. In the light of the definition of "parties" in rule 2, which was overlooked by the Tribunal, it is clear beyond any doubt that regulation 13(5) applied only where advice had been given in the presence of the parties at an oral hearing as required by rule 13(4). We accept Mr Shaw's submission that, as there was no oral hearing in this case, rule 13(5) did not apply.

Natural justice

22. Mr Weinbren, however, submitted that Article 6 of the European Convention on Human Rights and the rules of natural justice required a person to be given the opportunity of commenting on a medical adviser's advice, even if rule 13(5) did not apply because there had not been an oral hearing. Otherwise, he submitted, the registration committee could deprive a person of an opportunity to make representations on medical advice by simply refusing an oral hearing. Furthermore, he said that, in this case, it would have been argued before the registration committee that the medical adviser's advice fell outside the scope of his power to give advice and was, in any event, neither pertinent nor accurate.
23. Mr Shaw accepted that the rules of natural justice would sometimes require the registration committee to give a person an opportunity to make representations on medical advice when there had not been an oral hearing. He accepted that, in principle, the same would apply in relation to advice given by a legal adviser. However, he submitted that an opportunity to make representations was required only where

the advice was damaging to the applicant in the sense that it would defeat an application that would otherwise succeed, and

it was capable of being contradicted, and

the substance of the advice was not already known to the applicant.

(He also submitted that there might be cases where, even if those conditions were all met, an opportunity to make representations was not required when the advice was confidential and could not properly be revealed to the applicant. We expressed some doubt as to whether, in the absence of some specific provision permitting it to do so, a registration committee could ever properly have regard to advice that could not be disclosed to the applicant. He did not press the point.)

24. In the present case, Mr Shaw submitted, the substance of the advice was already known to the applicant.
25. We broadly accept Mr Shaw's submission that the rules of natural justice require an opportunity to make representations on medical advice or legal advice only where the three criteria he suggested are satisfied, although the precise formulation of the criteria may need consideration in another case. What is essential is that the proceedings should be fair. We do not consider that the requirements of Article 6 of the Convention are any different from the common law requirement of fairness in this context. Mr Shaw's criteria are tests of fairness. The first two come down to the point that it is not necessary to give a person an opportunity to make representations unless he or she might possibly derive some advantage from it. The third is the equally obvious point that there is no need to give a person an opportunity to make representations on advice if there has already been an adequate opportunity to make representations because the advice does not raise a new issue or, we would add, could reasonably have been anticipated.
26. Where, however, a medical adviser or legal adviser raises an entirely new issue that the registration committee would regard as crucial to the question whether or not the applicant should be registered and which the applicant might wish to contest, a registration committee will usually be bound to give the applicant the opportunity to make representations. If advice is given at an oral hearing, sub-rules (4) and (5) of rules 15 and 16 of the 2005 Rules (rules 12 and 13 of the old Rules) make adequate provision, although, occasionally, an applicant may apply for an adjournment so that he or she can seek his or her own medical or legal advice before making representations. If the applicant is not present when the medical or legal adviser's advice is given, an adjournment will be inevitable whenever an opportunity to make representations is required.
27. Mr Weinbren suggested that, when the registration committee is bound to give an applicant an opportunity to make representations on medical advice, it is always also bound to offer an oral hearing. We do not accept that there is a general rule to that effect. As the Tribunal indicated, if rules make unqualified provision for an oral hearing on a question that will determine a person's right to practise his or her profession and such a hearing is requested, the request must be allowed unless there is a good reason for not doing so. However, there may be a good reason for refusing an oral hearing. The Tribunal said that there was no such good reason in this particular case and that comment has not been challenged, but, as the Tribunal indicated, each case must be considered on its merits. Mr Shaw pointed out that that approach is consistent with the Court of Appeal's decision in Regina (Thompson) v. Law Society [2004] EWCA Civ 167; [2004] 1 WLR 2522.
28. Nonetheless, it seems to us that, where a medical or legal adviser gives advice that raises a new point, it may be necessary to reconsider any refusal of an oral hearing when giving the party the opportunity to make representations. Indeed, we note that in the present case the legal adviser did remind the registration committee in February 2005 that the question of an oral hearing needed to be considered afresh after the adjournment. Equally, if an applicant who has not asked for an oral hearing is given an opportunity to make representations on medical or legal advice that raises a new point, it may be appropriate for the committee at the same time to give him or her a new opportunity to request an oral hearing. However, it will remain the position that whether a request for an oral hearing for the purpose of making representations on an adviser's advice must be granted will depend on whether, in the new circumstances, there is a good reason for refusing it.
29. We accept Mr Shaw's submission that, in fact, there was no requirement for the registration committee to adjourn to enable the Appellant to make further representations in the present case because the medical adviser's advice did not raise any new issue. The point that medical retirement was generally allowed only in a case of permanent incapacity had been made when the case was adjourned in December 2004 and the medical certificate subsequently produced had confirmed that that was indeed the formal ground upon which the applicant had been medically retired in 2000. The point that work as a probation officer was similar in some respects to work as a social worker could reasonably have been anticipated because it was the obvious explanation for the medical retirement apparently being regarded as significant. The truth is that the applicant had not only had the opportunity to make comments on those points but he had implicitly done so. His case was that he had not in fact been permanently incapable of work in 2000, which implied either that the doctor who signed the certificate had applied the wrong test (which was arguable because the report dated 4 July 2000 did not address the question whether his incapacity was permanent) or that the doctor had simply been wrong in his prognosis. The committee's error was not a failure to allow the Appellant to make representations on the advice given to it but was a failure to consider the representations he had already implicitly made or, as the Tribunal put it in its criticism of the registration committee's reasons (see paragraph 38), a failure "to evaluate the evidence presented by [the Appellant]".
30. We do not agree with Mr Weinbren that the advice given in this case was not pertinent or accurate. Mr Weinbren explained that what he meant was that the advice was not complete and did not take account of the points made by the Appellant. That is true, but it is not clear that the medical adviser was asked to give his overall opinion of the merits of the Appellant's case or that it would have been appropriate for him to do so. As rule 13(6) emphasised, it was for the registration committee itself to make the decision whether the applicant was fit to be a social worker. The points made by the medical adviser raised pertinent questions for the registration committee to address. The points made by the Appellant were obvious enough and there was no duty on the medical adviser to reiterate them. The failure of the committee to address the points made by the Appellant cannot, on the material before us, be blamed on the medical adviser. The fault appears to have been entirely that of the registration committee itself.
31. We prefer not to express a view on Mr Weinbren's submission that the medical adviser exceeded his power in giving the advice that he did in this case. The question whether the role of a medical adviser in this context is the same as that of a medical assessor giving advice to the Fitness to Practise Panel of the General Medical Council (see Watson v. General Medical Council [2005] EWHC 1896 (Admin)), as Mr Weinbren submitted, or whether it is wider, as Mr Shaw submitted, is an important question that should be determined by a properly constituted Tribunal in a case where it is really necessary to decide it. However, we observe that it is more likely to be necessary to give a person an opportunity to make representations on advice that goes beyond the narrow scope of advice properly given by an assessor than on advice within that scope. (We also think that legal advice is less likely than medical advice to give rise to a need to give an opportunity to an applicant to make representations.)

Our conclusion on this review

32. For the reasons we have given, we are satisfied that there was an obvious error in the decision of the Tribunal dated 14 June 2005. The Tribunal misconstrued rule 13(5) of the 2003 Rules. That rule did not require the registration committee to adjourn the case before them to give the Appellant an opportunity to make representations on the advice of the medical adviser. In our judgment, the decision should be reviewed.
33. The rules of natural justice also did not require the registration committee to give the Appellant an opportunity to make representations on the advice of the medical adviser. Accordingly, the Tribunal's reasons should be varied by the omission of the last three sentences of paragraph 37. The grammatical error in the second sentence of that paragraph should also be corrected by substituting "clearly to evaluate" for "to clearly evaluating". Our extra-statutory decision must suffice as an answer to the points raised on the application for review because, as those points were not argued before the Tribunal, it would be inappropriate to include them in the Tribunal's decision.

His Honour Judge David Pearl (President)

Mr Ian Robertson

Mr Mark Rowland

7 November 2005