England and Wales Care Standards Tribunal

KM v The Secretary of State for Education and Skills [2006] EWCST 675(PVA) (25 September 2006)

DECISION

Appeal No [2006] 0675 .PVA

IN THE CARE STANDARDS TRIBUNAL BETWEEN:
KM
-and- THE SECRETARY OF STATE FOR EDUCATION AND SKILLS [2006] 675.PVA

On 25 September 2006 sitting at the Care Standards Tribunal.

BEFORE

Mr I Robertson (Chairman)

Ms B Chatfield

Ms J Funnell

REPRESENTATION

KM in person

Mr Coppel of counsel instructed by the Treasury Solicitor for the Secretary of State

BACKGROUND

1. KM is a woman of 44 years of age who has spent the majority of her working life as a carer in a variety of settings. Nobody in this hearing or in any paperwork that we have seen has questioned the quality of her work or her dedication to her clients. In September 2003 she was employed as a Support worker for Welcome House Residential Care Homes. This is a company that runs 9 homes in the Kent area providing care for adults with mild to moderate mental health problems.
2. On her Application form KM when asked to list any previous convictions stated "1999 driving offences" she declared that she had endorsements for drink driving. In fact at that time KM had 3 sets of convictions;

i. on 12/3/97 for Failing to provide a specimen of breath, using a vehicle whilst uninsured and using a vehicle without an MOT certificate – for which she received a 12 month probation Order and a 3 year driving ban

ii. On 16/2/99 – for driving whilst disqualified and driving whilst uninsured – for which she received 140 Hours Community Service and 6 penalty point endorsement

iii. On 6/6/01 – for driving with excess alcohol and using a vehicle whilst uninsured – for which she received a 12 month community rehabilitation Order and a 4 year driving ban

3. In addition she had a Caution registered against her for Assault Occasioning Actual Bodily harm dated 17/6/00
4. Having checked KM's referees Welcome House employed her. The Homes' proprietor Dr Aslam seemed unsure whether CRB checks were sought saying in his witness statement;

" At the time we interviewed Karen, the concept of CRB checks were just coming in. Applications were taking time to come through. We applied for a CRB check but I am not entirely sure whether the check was actually received"

5. In December 2003 KM resigned from Welcome House over a dispute regarding stoppages taken out of her pay. This dispute was settled and she was re employed on 15 December as a Support worker at the Chestnuts a different Home run by Welcome House. On 9 February 2004 she was promoted to the post of Resident Deputy Manager. She was required to live on the premises and be available at all times during the night to attend to the needs of clients. She was not paid for this indeed when she started she paid rent for herself, her partner and son who moved in with her. She was only paid a basic 40 hour week at £6.50 per hour and if required to work overtime to cover sickness etc was paid at £5 per hour
6. We know from a Memo dated 10/3/04 that KM's employers knew before this date the full extent of her criminal record and that having received explanations regarding these offences were content to continue to employ her. We will consider the evidence with regard to this later.
7. Shortly after taking up the post KM reported to Dr Aslam that £40 had gone missing. He wrote on 4 February 2004 as follows;

" As the acting manager, you are responsible for the overall well being of the residents and the security of the building and its content. I am actually disappointed that £40 of the Homes money has gone astray and while on this occasion I have agreed for Welcome House to re-compensate this, in future you will be held personally responsible and therefore I strongly suggest you have robust systems in place to avoid this happening again"

It is notable that the onus was placed upon KM to ensure systems were in place and that the company did not assist her by training in any organisation wide systems.

8. KM decided after she had been in post sometime to try and organise a holiday for the Residents. This idea received Dr Aslam's blessing and KM set about organising it. Only 3 Residents could afford to pay for the holiday and it was costed to include the hotel costs, travel costs and cost of carers at £5 per hour 8 hours per day. KM was going together with her partner who was to drive. We have seen two invoices from the Hotel one dated 12/5/04 for £377 and one dated 4/9/04 for £533. There has been much speculation about these and the variations but no satisfactory explanations about them. What we know is that a deposit of £100 was paid together with a further sum of £417. KM collected monies from Residents on a weekly ad hoc basis and kept it in a box that she kept in her room. She told us that she did this because money had gone missing and this was more secure.
9. On 3 September 2004 KM sent the operations manager a letter saying that she wanted to resign as Resident Deputy Manager but continue as a live out manager as she found the intrusions into her privacy at home intolerable. Her contract of employment made it clear that this was not an option open to her and she therefore resigned from Welcome House and left on 17 September 2004.
10. On 21 September 2004 a financial audit was carried out and a discrepancy of £185 was found with regard to the holiday money. KM was contacted and said that she had taken her tin box with her when she had left and this contained £90 which was paid back. This left a shortfall of £95. The police were called in and interviewed KM. She was subsequently seen again and offered a Caution for False Accounting. She accepted this Caution on 6 January 2005. Welcome House reported KM to the Secretary of State and on 25 May 2005 she was provisionally included in the POVA list. This was confirmed on 2 March 2006 and on 8 March 2006 KM appealed against inclusion.

THE LAW

11. The Secretary of State has a duty under S81 Care Standards Act 2000 to;

"…keep a list of individuals who are considered unsuitable to work with vulnerable Adults"

12. The effect of inclusion on the list is spelled out by S89 which, to paraphrase, effectively prohibits employment in a care position and makes it a criminal offence to apply for a job, or do any work in a care position.
13. As indicated, a referral was received from KM's employers under S82 Care Standards Act 2000. This places a duty on employers to refer if;

"(2)(a) that the provider has dismissed the worker on the grounds of misconduct …………which harmed or placed at risk of harm a vulnerable adult."

14. On appeal the tribunal has to consider the matter as follows;

"S86(3) If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely-

(a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult; and

(b) that the individual is unsuitable to work with vulnerable adults,

the Tribunal shall allow the appeal or determine the issue in the individual's favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list"

15. In this case as set out above KM was cautioned for an offence under S17 (1) Theft Act . This amounts to the equivalent of a conviction. By S86(4) Care Standards Act 2000;

"Where an individual has been convicted of an offence involving misconduct (whether or not in the course of employment) which harmed or placed at risk of harm a vulnerable adult, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal or determination"

HOW THE CASE IS PUT BY THE SECRETARY OF STATE

16. The Secretary of State in pursuance of Directions filed a Schedule of Particulars of Misconduct relied upon. There are 3 particularised;

1. Dishonesty: Theft of users money – risk of emotional harm, through the breakdown of trust on the part of the vulnerable adults were they to have found out / been informed of KM's actions – actual financial harm through deprivation of service users money

2. Failing to disclose all her driving convictions in her application for employment – Risk of physical harm to the service users when driven by the applicant given her record [ this was withdrawn by the Secretary of State who acknowledged that there was no evidence she had driven – at the time she would have been disqualified in any event] – risk of emotional harm to service users were they to have found out about her driving convictions and her failure to disclose them [ this too was accepted by the Secretary of State as not being supportable on the evidence]

3. Failing to disclose a caution given on 17/6/00 for ABH in her application or employment – risk of physical harm to service users by applicant with a history of violent assault – risk of emotional harm if applicant's history known/ discovered by service users

THE EVIDENCE

17. We have seen a bundle of papers prepared by the parties, considered three witness statements prepared by the Secretary of State and one long statement from the Appellant and a character statement from her partner. Additionally we heard oral evidence from Dr Aslam, Mr Barnden the Development Manager of Welcome House and KM herself.
18. There were however a number of gaps in the evidence. Financial records were incomplete although some were forwarded to us after the hearing and critically nobody could clarify the factual basis upon which the police offered the Caution for false accounting.
19. KM's evidence was that the £95 in question had been stolen and that she had reported this to Dr Aslam who told her not to record this as an inspection was due. In his evidence he categorically denied this. KM said that she accepted the Caution on the basis that she accepted that she was wrong not to record the theft, although this does not in our view amount to an offence as recorded, as on her evidence there is no dishonesty. This is a most unsatisfactory aspect of the case. The Secretary of States primary case is that of "theft of service users money" yet the Caution is for False Accounting which by S17(1) (a) and (b) is as follows;

"Where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another;

(a) destroys, defaces, conceals or falsifies any account or any record or document made or required for any accounting purpose or

(b) in furnishing information for any purpose produces or makes use of any account, or any such record or document as aforesaid, which to his knowledge is or maybe misleading, false or deceptive in a material particular, he shall on conviction on indictment be liable for a term not exceeding 7 years"

20. We cannot go behind the caution KM has been convicted of dishonesty involving the handling or recording of client's money. In our view this patently amounts to misconduct which if known to the clients would undoubtedly cause them harm and therefore it follows the action put them at risk of harm.
21. The other two aspects of misconduct pleaded by the Secretary of State are KM's failure to disclose on the one hand her driving convictions and on the other her caution for ABH. KM's evidence in this regard was that she made full disclosure at interview and completed her application form at the interview and was told just to record the one driving conviction. She says that in any event she brought in her CRB check from her previous employment shortly afterwards and that Welcome House therefore had full knowledge. Unfortunately these questions were not put to Dr Aslam and he was not recalled by the Secretary of State to deal with them even though he remained throughout the hearing. What is incontrovertible is that Welcome House were fully aware of them on 10 March 2004 as a result of the memo mentioned in Paragraph 6 and that prior to this Memo had discussed them with KM. They considered that having known this, that the record did not effect her employment and they were happy to continue to employ her. Dr Aslam said as much in evidence. The Secretary of States case as put before us is that it is not the existence of the convictions per se that amounts to misconduct but their concealment at the point of interview that deprived Welcome House of the opportunity of not employing KM in the first place. He therefore modified his position regarding the ABH caution and the harm or risk of harm posed by this.
22. We find ourselves in serious difficulties on this point. In many ways Dr Aslam's evidence was very unsatisfactory. He appears to have adopted a very casual attitude to record keeping with regard to CRB checks and his attitudes and expectations of his staff appear at one level quite Dickensian. We are not in a position to determine whether KM did reveal her full convictions or not at interview or shortly afterwards. We do know that she signed an application form knowing it to be false and regardless of whether or not told to do so she should not have done this. We regard this as misconduct but do not accept given the nature of the convictions and the subsequent acceptance of them by Welcome House that this misconduct caused or placed clients at risk of harm
23. Having found the first test proved with regard to the Caution concerning the client's holiday money we have to consider whether this renders her unsuitable to work with vulnerable adults. In normal circumstances we would have no hesitation in saying that anybody proved to have stolen client's money is unsuitable. We are concerned however about the ambiguities that exist around the factual basis behind the Caution. We do not know what the police say KM did to falsify records. The case presented by the Secretary of State is predicated upon straight theft not false accounting. The Secretary of State has not placed much weight upon the other convictions themselves as going to suitability but rather the deceit they say was involved in not declaring them. We have to say that as a Tribunal we are very concerned about the nature of the convictions themselves. They involve alcohol abuse and when questioned by the Tribunal KM accepted that at the time she was an "alcoholic" (her words). She has, she says, dealt with the problem by stopping drinking but has not had any professional support. Her offence of driving whilst disqualified in 1999 was on her evidence quite calculated. These issues that may go to suitability were not pursued, as we have said, by the Secretary of State, and although they raise serious concerns in our mind on balance we have decided that they are not matters we should ourselves pursue further.
24. The question of suitability is always a balance. On the one side are the factors outlined above which are serious. On the other we have heard evidence of KM's exemplary record and her dedication to her clients in circumstances where a lesser person would have given up. The holiday was her idea and we are satisfied that her motivation in organising it was to make the life of her clients better. In giving evidence her face lit up and she came alive when discussing individual clients. We have little doubt that she was exploited in her employment. The working practices described by her, confirmed by Dr Aslam in evidence and corroborated in the paperwork are quite appalling. The lack of privacy afforded her and the unpaid expectations placed upon her are novel in our experience of dealing with such cases. This is not to excuse her behaviour but rather to put her dedication to clients into perspective

DECISION

25. We have decided on balance, and it is on balance given the Caution that exists involving dishonesty, that in the circumstances of the case KM should be allowed to work with vulnerable adults in the future if this is what she chooses to do although she has told us that at present she does not intend to do so. She may of course change her mind upon further reflection.

.

APPEAL ALLOWED

This is the unanimous decision of the Tribunal.

Mr I Robertson (Chairman)

Ms B Chatfield

Ms J Funnell

Dated: 29 September 2006