England and Wales Care Standards Tribunal

 


CR v General Social Care Council [2006] EWCST 0626(SW) (11 May 2006)

CR V GENERAL SOCIAL CARE COUNCIL [2006] 0626.SW -Before- His Honour Judge David Swift (Chairman) Dr Jill Low Dr Keith White DECISION

Hearing 4^th May 2006

The Appellant appeared in person.

The Respondents were represented by Ms Eleanor Grey of counsel instructed by Messrs Field Fisher Waterhouse.

The Appeal

1. The Appellant appeals pursuant to section 68 of the Care Standards Act 2000 against the refusal of the Respondents to register the Appellant as a social worker on the register maintained pursuant to section 56(1) of the Care Standards Act 2000.
2. An Application for registration is made in accordance section 57(1) of the Care Standards Act 2000 and the General Social Care Council Rules 2005. An Application must provide details of any criminal convictions, including spent convictions, cautions or pending criminal prosecutions. An Application must provide evidence of fitness to practise as a social worker endorsed by an employer and a statement that the Applicant has read and understood the Code of Practice published by the General Social Care Council in September 2002.
3. The Appellant submitted an Application for registration on 12^th February 2004 but it was not properly endorsed by her employer, Leicestershire County Council, and was returned. The Application was further submitted on 5^th July 2004 but it had again not been properly endorsed and was returned. The completed Application re endorsed was ultimately submitted on 22nd November 2004. On the 7^th December 2005 the Registration Committee of General Social Care Council refused the Appellant's Application on the grounds that:

(a) The Applicant did not satisfy the Registration Committee that she met the criteria set out in section 58 of the Care Standards Act 2000 with regard to her good character and conduct because:

(i) The Applicant submitted her application for General Social Care Council registration for endorsement by her employer on two occasions, the dates of endorsement being 12^th February 2004 and 19^th November 2004 without full details of her criminal convictions and

(ii) The Applicant failed to abide by the personal declaration on her Application form that all the information was correct to the best of her knowledge and belief.

(b) The Committee noted the Applicant's convictions and were of the view that in themselves they would not have prohibited registration. It was the failure to declare them in any open and honest fashion which concerned the Committee. The Applicant was well aware when submitting and resubmitting the application form that the information concerning the convictions was inaccurate but took no steps to alert the Council that the information supplied was incomplete.

(c) The Applicant's above conduct contravenes paragraphs 2.1 and 2.2 of the General Social Care Council's Codes of Practice and therefore she cannot be considered to be of good character and conduct for the purposes of registration.

4. The Appellant appealed against that decision by Notice submitted on 3^rd March 2006. In summary her grounds of appeal are that there was no evidence to support the Committee's findings which were wrong and discriminatory. She accepted errors in the Application but asserted these were the result of lack of recollection on her part and that the Application was ultimately submitted by her employers in November 2004 before checks she had requested had been undertaken. She further asserted that her employment record demonstrated that she was of good character and satisfied the requirements of section 58 of the Care Standards Act 2000. The full grounds are annexed to the Appeal document.
5. The Respondent served notice resisting the appeal on 2^nd February 2006. In summary the Respondent asserted that the Appellant had failed to satisfy the Committee of her good character in that she had submitted the Application on three occasions without including full details of her criminal convictions despite the clear and stated need for full and frank disclosure. Again, the full grounds are annexed to the Respondent's Notice.

The Facts

6. We have read the bundle of documents and statements together with the Appellant's written submissions. We have heard evidence from Andrew Skidmore, the Appellant and Dawn Halford, who appeared as the Appellant's friend. We have heard oral submissions from both parties. We have considered all this material with care. For the purpose of this Appeal the material findings of fact are set out below.
7. The Appellant was born on 8^th September 1968 and is now 37 years old. In 1990 she enrolled at the University of Leicester and obtained a degree in sociology. Her efforts and progress are dealt with in the letter from Professor O'Connell Davidson of 15^th April 2005. After a break of a year she completed her studies obtaining a diploma in social work at Warwick University. In 1996 she obtained employment with Leicester County Council, notwithstanding that a criminal records check revealed those convictions to which there is reference in paragraph 18 below. The Appellant continued in employment with Leicester County Council holding the post of social worker from January 1998. There is nothing to suggest that she did not fulfil her duties properly and with competence. Indeed there are examples of cards from service users at pages 312 – 320 in the bundle and the evidence indicates that Leicester County Council were prepared to endorse her Application for registration as a social worker. Reference may also be made to the views expressed by Leicester County Council, for example in the letters of 21^st July 2005 at page 192 and 9^th September 2005 at page 279 She remains employed by Leicester County Council, albeit not as a Social Worker, despite refusal of registration.
8. The Care Standards Act 2000 introduced a new requirement for a social worker to register with the General Council for Social Care in order to continue to practise as a social worker. The legislation, contained in the Care Standards Act 2000, required such registration by 1^st April 2005. Mr Andrew Skidmore, Head of Standards and Registrar of the General Social Care Council, told us that this was a new concept and as a result there was phased implementation although the final deadline for registration was 1^st April 2005. Mr Skidmore told us that the registration decision was taken on the basis of what was disclosed in the Application form and any documentation submitted with it. The significance of the Application form and the need for full disclosure and accuracy were set out in the form and in the declaration. He explained that an Applicant who was concerned about a particular answer in the Application form could qualify that answer either on the form itself or by some letter or memorandum sent with it. He drew our attention to the Application that was submitted in this case. He confirmed that it was the non disclosure of the extent of criminal convictions in the Application process that resulted in the Registration Committee determining that they were not satisfied that the Appellant had demonstrated good character.
9. In his evidence Mr Skidmore dealt with the procedure for registration to be undertaken by a person who wishes to register. We accept Mr Skidmore's evidence. We are satisfied that the obligation to follow the procedure set out in the Care Standards Act 2000 and the General Social Care Council (Registration) Rules 2005 rests with the Applicant. An Application must be verified and endorsed by a senior representative of the employers. The Applicant cannot, however, pass the onus of complying with the registration requirements and providing the information requested of her to any third party including the endorsers of her Application..
10. The Application Form, to be found at page 245 in the Bundle, So far as is relevant to these proceedings it contains the following on page 11 of the form – page 255 of the Bundle:-

The Rehabilitation of Offenders Act 1974 and people in social care work

The Rehabilitation of Offenders Act 1974 allows some criminal convictions to become spent after a fixed period. However for occupations in social care the law expects you to declare convictions even if they are spent.

Have you ever been convicted of a criminal offence?

Then at page 20 of the form – page 264 of the Bundle is the form of declaration signed by the Applicant:

I declare that:

I have read the application pack that is enclosed with this application form

All of the information I have provided on this form is correct to the best of my knowledge and belief

I understand that the General Social Care Council can refuse to register me if I have given false information or have withheld relevant details………

I agree to tell the General Social Care Council as soon as reasonably practicable about……

Any events that call into question my good character such as criminal convictions, criminal proceedings or cautions that I receive….

Any changes to my personal details

I understand that if I fail to tell the General Social are Council about any changes to the information in my application the Council may consider this to be misconduct.

I have read, understand and agree to comply with the Code of Practice for Social are Workers

I understand that, as registered social care worker, I will be responsible for upholding and promoting the high standards of the social care profession.

11. The Appellant told us how it was that she came to complete the Application Form. She told us that the forms were circulated within the department. It was a new process and there was some confusion, a contention supported by the evidence of Ms Halford. She received her form in January 2004 and it was left to her to complete it. She told us she had some difficulty in getting all the information for the form and she tried to do the best she could.
12. On the 16^th January 2004 the Appellant completed the Application Form. In answer to the question Have you ever been convicted of a criminal offence? at page 255 she wrote "Yes" and then disclosed a single conviction for Assault in August 1986 at the Leicester Magistrates Court. She then signed the Declaration at page 264 in the bundle. She knew that there were other criminal convictions and she told us that she recalled the CRO check in 1996 that had set those out. She said that she asked her employers for details. She said she was told that records check had been destroyed. She said that she then approached her solicitor but he no longer retained the files. She accepted that she had simply disclosed the one conviction for assault. Her explanation for referring to an assault conviction only when she completed the Application and first submitted it was unsatisfactory. She told us that, as a result of her experience in 1996, she believed that the assault conviction was the important matter to disclose. She told us she could not recall details of the other matters at that time and did not, therefore, make mention of them. We are satisfied that she knew there were other convictions and knew of the need to disclose their existence on the Application but she chose not to do so.
13. The Application Form was endorsed by a Ms S Rochester, who we understand to be the Assistant Director of Social Services at Leicester County Council and it was then submitted to the General Social Care Council by the Appellant. It was received by the General Social Care Council on 15^th March 2004 but was returned to the Appellant on 15^th April 2004 with the letter at page 122 firstly because it had not been correctly endorsed and secondly for further information about the single conviction for assault that was disclosed.
14. There were two recorded telephone calls from the Appellant to the General Social Care Council on 11^th June 2004 at page 124 and 15^th June 2004 at page 125. In the first it was recorded that the Appellant stated that she could not supply information about a criminal conviction over 10 years ago. In the second it was recorded that she was asked to put what details about the conviction she could on the Application form. The Appellant told us that the telephone call of 11^th June 2004 did not simply relate to a query about the assault conviction despite reference to "crim conviction…over 10 years ago" She told us that during that telephone call she had told the General Social Care Council that she could not provide details of her convictions because she was unsure of dates and details. That is, of course, quite different from what is recorded in the contemporaneous note. Further the purpose of the enquiry by The General Social Care Council was to enquire about the sole conviction disclosed on the Application. It is inconceivable that reference to disclosure of further convictions, even if in a limited way, would not have been recorded in that note of the conversation Again we are not satisfied with what the Appellant told us about that.
15. Following that second telephone call the Appellant completed further details on the Application which was then resubmitted in July in the form at page 98. It did not replicate the original in every way - and was still not correctly countersigned. In answer to the question Have you ever been convicted of a criminal offence? at page 108 the Applicant had added a conviction for theft in 1984 at Leicester Magistrates Court and a conviction for deception, again at Leicester Magistrates Court, in 1991 in addition to the single conviction for Assault in August 1986. No further particulars were provided in relation to any of these matters and her answer on the Application was not qualified in any way. She then signed the Declaration, at page 117 in the bundle, and passed the Application on to be endorsed by Ms Rochester. The Appellant told us that she only disclosed these two further matters on the form because those were what she could recall but she was unsure of the dates or details. She told us she knew the nature of the offences but not the numbers or details. By then, of course, she had seen and completed the Application twice. She had also spoken to the General Social Care Council and was aware of the need to provide all information, if necessary qualified as to detail. We are satisfied that she knew then that there were more than the two additional convictions she had disclosed. She had appeared in Court on seven occasions. We are satisfied that she knew of the need to disclose all convictions. The Appellant told us that she had made efforts to obtain details of convictions because she could not remember. She told us of the difficulties experienced following a sudden bereavement. Whilst she accepted that she had not qualified her answer in any way in the Application she said that she had attached a note explaining her difficulties to page 11 of the Application before she passed it to Ms Rochester for endorsement. No such note arrived with the Application when it was resubmitted to the General Social Care Council after endorsement. The Appellant's evidence about this was also unsatisfactory. She explained the absence of the note by indicating that it was probably a "Post It" note which must have become detached. What was the purpose of this when the qualification of her answer could have been put on the Application itself? A "Post It" note is not a secure means of communicating such important information on a form. Further, it is clear that the Meeting on the 19^th November 2004, to which we refer below, was triggered by the letter of 14^th October 2004, page 126. If there had been such a "Post It" note seen by the endorser there would have been no need for the approach that was clearly adopted by the Appellant's managers in that meeting. We are not satisfied that the Appellant has established the existence of such a note on a balance of probabilities. She could have qualified her answer on page 11 of the Application to explain that there were other matters about which she could not recall details but again she chose not to do so. The inevitable inference to be drawn from the evidence is that the Appellant was aware that there were a number of convictions at the time she resubmitted the Application for endorsement and that the full extent of her convictions was not disclosed on the Application.
16. .The Application Form was again returned to the Appellant on 14^th October 2004. We are satisfied that following the return of the Application on that occasion and the need for its endorsement there was a meeting "to pursue and clarify issues around registration process" between the Appellant, accompanied by her friend Dawn Halford, and her managers on 19^th November 2004. The minutes prepared by the Appellant's managers are at page 275. The minutes are not agreed by the Appellant and her witness Dawn Halford. In essence the dispute concerned whether the Application was to be resubmitted to The General Social Care Council immediately following the meeting or whether its submission was to be delayed pending receipt of the Enhanced Disclosure of convictions from the Police. The minutes show there was clearly concern about the disclosure of convictions. The Appellant was pressed on the point, indeed Ms Halford told us that at one stage she became distressed and temporarily left the meeting. The minutes record "CR confirmed her convictions as; Assault against adult – fine, theft in shop (taking goods on one occasion) – fine, Deception in shop (obtaining goods on one occasion) – Probation". Thus the minutes show that the Appellant stated there were the three convictions set out in the Application although she could not recall details. There were discussions about what seemed to be inconsistencies in relation to other disclosure on other occasions. The minutes record the conclusion as "GSCC form will be sent endorsed by S Rochester with explanatory letter". Thus the minutes indicate that the decision taken at that meeting was that the Application, in its inaccurate state, should be further submitted to The General Social Care Council. Indeed that was what happened. It was resubmitted on the 22^nd November 2004 with the letter at page 297. Contemporaneously the Appellant was notified by email, page 296. The letter indicates that "We have, as an employer obviously, taken very seriously the fact that Charmagne has 3 convictions. This was addressed initially in 1996 where conditions were applied to her employment i.e. that she should not work with children, only on adult services. We did allow her to work in adult services as 2 of the 3 convictions we were told about referred to incidents when she was 17 and 19 years of age. The third was in 1991 for deception of goods from a shop". It is readily apparent that this sets out confirmation of the inaccurate disclosure by the Appellant in the Application. It was a further submission of the Application with inaccurate disclosure of convictions. The Appellant told us that she had not resubmitted the Application. It was sent by the Leicester County Council. As we have set out above it was her responsibility to submit the Application. She had signed the declaration and provided the information. It was for her to ensure its accuracy and she cannot pass that responsibility on to another. The Appellant told us that she said that the Application was not to be submitted until the question of her convictions had been addressed by Enhanced Disclosure from the Police but that Leicester County Council pressed on regardless. During the course of her evidence it became clear that what she was saying to us was that there was a suggestion that the Application should be delayed in that way but she realised that it was going to be sent. That, of course, is consistent with the minutes and with the note of the telephone conversation between the Appellant and General Social Care Council on 3^rd December 2004 at page 127. Dawn Halford told us that she felt that the Appellant had been put under pressure but had never been asked how many convictions she actually had. Ms Halford told us that the managers at the meeting had agreed that an Enhanced Disclosure check should be undertaken and that the Appellant suggested that resubmission should be delayed. Having considered the minutes, the surrounding documentation and the evidence we are satisfied that it was clear at the end of the meeting that the Application was to be resubmitted as it was. The Appellant could still at that late stage have disclosed that there were other convictions the details of which she could not recall. She chose not to do so.
17. On 22^nd November 2004 the Application, correctly endorsed, was again submitted to The General Social are Council. Again no further particulars were provided in relation to the three convictions disclosed and the Appellant's answer was not qualified in any way. The Application bore the Appellant's signature of the declaration at page 336 in the bundle. It was accompanied by the letter from the Assistant Director. The Application was, therefore, submitted for a third time with information in relation to convictions that Appellant knew to be incomplete.
18. Enhanced disclosure on 17^th January 2005 at pages 306-307 revealed the Appellant had appeared before the Courts on 7 occasions. The first was on 17^th November 1982, over 23 years ago, when she was 14 years old for 2 offences of shoplifting. Thereafter there were convictions for; an offence of theft in September 1983, two offences of theft in November 1984, an offence of theft and two offences of obtaining by deception in January 1985, an offence of assault occasioning actual bodily harm in July 1985, an offence of theft in June 1989 and offences of handling and obtaining by deception in January 1994, some 10 years prior to the date of the first submission of the Application. The attention of the General Social Care Council to the this state of affairs was by a letter from Joanna Boulton at Leicester County Council dated 18^th February 2005 at page 132.
19. We are satisfied that the Application that was submitted was inaccurate and failed to disclose the true extent to the Appellant's criminal convictions. It was submitted and resubmitted on three separate occasions in that state. On the first occasion there was reference only to a conviction for assault. When it was resubmitted July 2004 two further convictions were added. It is inconceivable that those had slipped the Appellant's mind when she completed the Application in January 2004. Thereafter the position that there were just the three convictions was maintained when that was clearly wrong. Again it is inconceivable that the Appellant believed that to be right. There was no qualification in relation to details given in answer to the question: Have you ever been convicted of a criminal offence? On each of the occasions that the Application was submitted or re submitted and in the form in which it was sent to the General Social Care Council it was misleading in an important respect.

The Law

20. The Grant or Refusal of Registration of a social worker by the General Social Care Council is set out in section 58 of the Care Standards Act 2000.

(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 applicant for registration as a social worker-

(i) he has successfully completed a course approved by the Council under section 63 for persons wishing to become social workers;

(ii) he satisfies the requirements of section 64; or

(iii) he satisfies any requirements as to training which the Council may by rules impose in relation to social workers;

(b) in the case of an applicant for registration as a social care worker of any other description, he satisfies any requirements as to training which the Council may by rules impose in relation to social care workers of that description.

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

21. In the context of this appeal we are concerned with 58(1)(a) and whether the Council were wrong in determining that the Appellant's conduct in relation to the Application was such as to result in the Appellant failing to demonstrate to the Council that she was of good character. We express the matter in that way accepting, as did the Council, that the fact of these convictions alone was not such as to have prohibited registration. The gravamen of this case is the failure to disclose.
22. The purpose of this legislation is to introduce control and regulation of social workers in the interests of those who require and use their services together with the interests of the community as whole. The need for full and frank disclosure is made clear by the Application form and is fundamental to the process of registration.
23. A social worker occupies a position of trust and where a person seeks to hold a position of trust and a regulatory body is required to be satisfied that criteria are met then she must demonstrate that she has met those criteria and any doubts must be resolved against registration. In our judgment, in the context of this appeal, the onus is upon the Appellant to demonstrate that she is a person of good character.

Findings

24. The conduct of an Applicant in relation to the Application process is clearly a matter that can be taken into account when determining whether the Applicant has demonstrated that she is of good character.
25. The information provided by an Applicant is fundamental to the process and the importance of its accuracy is set out in the Application Form. The Appellant knew of the significance of the information she set out in her Application.
26. The Appellant knew that she had a number of criminal convictions. She chose to disclose only one when she first submitted her Application. Her disclosure was not qualified in any way. When the Application was returned to her and the details of the conviction were sought she added just two further convictions to the information she provided. The dates were inaccurate and no details were provided. Again her disclosure was not qualified in any way. The Application was resubmitted with that disclosure which was, to the knowledge of the Appellant, incomplete. When the Application was again returned there was a meeting with her managers to clarify the position. At that meeting she confirmed there were the three convictions disclosed on the Application and it was resubmitted with that disclosure alone. The Appellant knew that was not full and frank disclosure.
27. We are satisfied that the Appellant's conduct in relation to her Application was reprehensible and relevant to the question whether she discharged the obligation to demonstrate that she was a person of good character. It was open to the Registration Committee to find that material non disclosure occurring in this way on a matter of such significance resulted in a failure to discharge the onus of demonstrating good character and with that conclusion we agree.
28. The unanimous decision of the Tribunal is to dismiss the Appeal.

ORDER

The Appeal is dismissed

Judge David Swift

Chairman

Dr Jill Low

Dr Keith White

Date: 11^th May 2006