England and Wales Care Standards Tribunal

AI v General Social Care Council [2006] EWCST 683(SW) (28 June 2006)

AI

-v-

GENERAL SOCIAL CARE COUNCIL

[2006] 0683.SW

Before:

Miss M E Lewis

(Nominated Chairman)

Susan Howell

Ken Coleman

DECISION

Hearing: 28 June 2006

The Appellant appeared in person.

The Respondents were represented by Miss Dixon 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 Acts 2000.
2. An Application for registration was made in accordance with Section 57 (1) of the Care Standards Acts 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 Applicant must provide evidence of fitness to practice 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 25 August 2004. He incorrectly described an offence of driving a motor vehicle with excess alcohol on 21 March 2002 as a caution. That it was a conviction is clear from the disclosure from the Criminal Records Bureau, which showed the date of conviction as 21 March 2002, but the offence was committed on 8 January 2001. The Appellant was fined £150 and disqualified from driving for 12 months with costs of £55. This was written in different handwriting by his employer, who in endorsing his application had reminded him that he needed to include it.
4. It is convenient at this point to set out the statutory framework. It was the Respondent's case that the Applicant had failed to satisfy the first requirement. The Respondent is required to maintain a register of social workers (Section 56 (1) (a)). The grant or refusal of registration is governed by Section 58 of the 2000 Act which provides (so far as material) as follows:

'(1) If the [Respondent] 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 and any part of the register to which his application relates;

(c) Satisfies [the conditions as to qualifications, training, conduct and competence set out in sub-sections (2) and (3)],

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

5. Section 60 empowers the Respondent by rules to make provisions about the registration of persons under Part IV: see the General Social Care Council (Registration Rules) 2005. Rule IV (Application for Registration) states (so far as material) as follows:

'1. An Application for Registration should be made in writing and shall specify each part of the register in which registration is sought and -

(a) Shall provide the following information -

…

(ii) Details of any criminal convictions including 'spent' convictions, formal cautions issued by the police and any pending criminal proceedings. … …

(iii) The Applicant shall provide in connection with the Application -

(a) Where the Applicant is a social worker, evidence as to the Applicant's -

(i) Good character as it relates to the Applicant's fitness to practice the work expected of a social worker (including endorsements from an employer …);

…

(x) The Respondent [shall grant an Application for Registration]

(a) It is satisfied as to the Applicant's good character and conduct;'

6. The Code of Practice which the Respondent must take into account when making decisions on what social workers must comply with, sets out the conduct expected of social care workers by reference to a number of principles, the second of which is that social care workers must strive to maintain the trust and confidence of service users and carers. This includes:-

" 2.1 Being honest and trustworthy;

2.2 Communicating in an appropriate, open, accurate and straightforward way."

7. The onus is on the Appellant or the Applicant before the Registration Committee to demonstrate that he is a person who meets the requirement of section 56: Jones -v- Commission for Social Care Inspection [2004] EWCA Civ 1783 at [13-15] and CR -v- General Social Care Council [2006] 0626. SW 23.
8. On 22 March 2006 the Registration Committee of the General Social Care Council refused the Appellant's Application on the grounds that

(i) whilst the Appellant had declared a conviction for assault in 1991 which he was sentenced to a 21 day suspended custodial sentence and £150 fine, it was not clear whether the conviction was for assault or indecent assault.

(ii) The Appellant by his explanation appeared to deny responsibility for it.

(iii) He had declared his driving conviction as a caution.

(iv) The Applicant's explanation about that driving offence was that his cousin had stolen his driving licence and he had thrown him out of the house and he had only discovered it when he himself was stopped for driving by the police in 2003.

(v) His explanation was considered inconsistent.

(vi) He had failed to disclose the 1991 conviction to the London Borough of Hackney Social Services department and had his contract with them terminated for that reason. The Committee was concerned it had appeared the Applicant had not been open and transparent. In particular:-

(1) In a telephone conversation on 21 November 2005 he told Ms Smith, caseworker at GSCC that he had taken some time off to do some things around the house. However, Ms Smith had been told earlier the same day that he had been sent home from work the previous Thursday whilst they investigated the matter of failure to disclose the 1991 Conviction.

(2) In a further telephone conversation with Ms Smith on 28 November 2005 he told her that he had put a copy of a letter relevant to his professional background in his manager's tray/pigeon hole that morning. The manager in a conversation with Ms Smith later that day said he had not done so.

(3) It appeared in a note of a telephone conversation with Ms Smith on 8 November that the Applicant left his own children at home unattended.

9. In the Grounds of Appeal dated 28 March 2006, the Appellant alleged that the decision was unfair, biased or discriminatory. The Committee could have, at his request, contacted the DVLA. He appeared to deny leaving his children alone. He asked this Tribunal to look into the application he made to the London Borough of Hackney, because on the application form he had ticked the 'Yes' box as to whether or not he had a previous conviction. He therefore denied that he had failed to declare that conviction.

The Facts

10. There was a bundle of documents and statement from Andrew Skidmore, the head of Quality and Business Efficiency of the General Social Care Council. We confirmed that the Appellant had filed no written evidence and did not intend to do so. We were conscious that he was representing himself and took care to explain the proceedings to him. We took a more inquisitorial approach than we might otherwise have done in order to explore the points he wished to make and assist him in telling his story. We have considered all this material with care. For the purposes of this appeal the material findings of fact are set out below.
11. The Appellant was born on 25 November 1961 so is now 45 years of age. He was born in Nigeria and came to this country in 1988. He had taken a number of manual jobs and courses of study. The Appellant said that the 1991 conviction came about at a time when he was working as a train care assistant or cleaner at Waterloo Station which in his employment history at page 96 he lists as being between 1990 and 1992. In another employment record at page 95 he does not refer to that employment and instead said that between 1988 and 1990 he was working as a packer for Trusthouse Forte. Between 1991 and 1993 he worked in customer services at Burger King. However in oral evidence he said that it was a job that he had held for a few weeks. He failed to record in his employment record that he obtained an M.Sc in Mental Health studies from Kings College London in 2001. He has given no coherent dates as to his employment history.
12. The Appellant chose not to appear before the Registration Committee but to make written representations, which we have read. He said there that he had never been sent out of job before due to gross misconduct apart from Hackney Social Services, although it transpired in oral evidence that he had lost his job as a train cleaner due to the 1991 incident.
13. There is no satisfactory evidence in relation to what happened in 1991. We accept the Appellant was given a full opportunity by the Registration Committee to state what had happened. On the 28 February 2005 the Appellant provided further information about his declared criminal offences. In relation to the 1991 incident he said it had happened at Waterloo Station. A lady had asked him about the train that went to Clapham Junction but he said he didn't know anything about the train timetable because he was a train cleaner. She invited him to her mother's party in Birmingham and took his name to send him an invitation. The next thing he knew was the following Monday after the weekend, she wrote complaining to his manager that he had touched her indecently. In his written evidence, the Appellant said that his barrister had told him to plead guilty because "he does not want the other Counsel to lose the case. I told him that how could I pleaded guilty for the offence I did not committed (sic)"'. We take this to be an example of the Appellant's poor grammar and inability to express himself well in English, which is not his first language. In oral evidence it emerged that the Appellant had been charged with 7 counts, which all related to various assaults on one person.
14. The fact that there were seven counts charged suggests that the matter was far more serious. We conclude that the most likely explanation is that on legal advice the Appellant pleaded to one count so that the other counts were not proceeded on. On 16 June 2005, the Respondent contacted Southwark Crown Court Records Section but the records of 1991 convictions had now been destroyed. The facts of that case are not established. It is not clear why a lady he assisted on Waterloo railway station should invite him to her mother's birthday party in Birmingham or indeed wish to make an allegation of indecent assault against him. It is clear this matter caused the Appellant and his family a great deal of distress and we are concerned that he was unable to give us more detail, despite a number of opportunities both when cross examined and in questions from us. He must have known that he would have to talk about this matter if he wished to become a social worker and be registered. Had he entered another profession he could have put this offence in the past as a spent conviction and an unhappy episode that he wished to forget.
15. The Appellant clearly did realise the impact the 1991 conviction would have, as he says that he didn't apply to be a social worker, or apply to undergo social work training until the conviction was spent, so a period of seven years. It was accepted that he did disclose it to Havering College when he applied to do his diploma in social work. It is quite clear from the documents for registration that he was bound to declare it and we accept that the documents and the Code of Practice emphasise that transparency in relation to these matters was all important.
16. The issue as to whether the Appellant did or did not record his 1991 conviction when applying for a job with the London Borough of Hackney is a matter of fact. The application form was not before the Registration committee or us. We clarified that the Appellant had been called in by three managers and told that he was to be suspended. He was told not to speak to staff or enter the premises during the investigation but we do not accept this would have prevented the Appellant speaking to the Human Resources department at a later date. This was his reason for not getting a copy of the document, which he had not copied himself when he sent it off. He was then sent home for a week and now accepts that he was not fully frank when speaking to Ms Smith about why he was at home. The Appellant said that he had approached his local Citizens Advice Bureau but that they had told him he couldn't sue for unfair dismissal because he had not worked for the statutory minimum. The Appellant did not attend the Registration Committee and instead appeared to put his confidence in this tribunal but has failed to appreciate that he must produce evidence. The evidence on balance does not support that he did declare the 1991 conviction. Had it been declared it is seems obvious that the employer would have followed it up by further questions on the form or in interview.
17. Relying on the Criminal Records Bureau we accept that the Appellant was not convicted again until 2002 for an entirely unrelated offence. Between 1993 and 1997 he went to South Bank University and studied accountancy and finance. He then spent a period unemployed and then between 1998 to 1999 he pursued a postgraduate diploma in management studies at Birbeck College. Between 2001 and 2003 he obtained his diploma in social work at Havering College. That is all positive and to his credit.
18. We did not find the Appellant's evidence in relation to the driving conviction satisfactory. He was not able to give a clear set of dates as to when his cousin who had been living with him had either stolen or borrowed his driving licence. He said that the cousin who was living in his household used his clothes, opened a bank account in the Appellant's name and used his driving licence. The 2002 conviction only came to his attention when the Appellant was stopped in 2003 for a minor traffic violation. Checks were made and he was told that he had been disqualified from driving. He was not charged with driving whilst dis-qualified. We sought to establish what he had done to clear his name as the written evidence confused us, where he said he had gone to see the magistrate at Tower Bridge. The Appellant told us he had been advised to undergo a medical and whilst he gave detail about going to a building in Pimlico. It was not clear to us how a medical test after the event could establish whether he had been drinking alcohol but if it established that the Appellant had never drunk, then the Appellant needed to produce the report and he did not do so. The Appellant is a teetotaller. He went to Walworth Road police station where his fingerprints and photograph were checked with those held for the 2002 offence. His cousin had accepted responsibility on being approached by the police. We asked why he had therefore not sought to assist the Appellant whose livelihood and chosen profession was at stake. He said that his cousin was now in Nigeria fighting an election although it transpired that he had returned to this country from time to time, most recently in February 2006. The Appellant stressed the difficulties of being a lone person without representation trying to get this evidence but the only conclusion we can reach is that the Appellant's assertions that he was innocent of this charge are entirely unsupported by any documentary evidence. We must accept that the criminal record is prima facie evidence of the conviction and that the onus is upon the Appellant to set that aside. He has not discharged that burden. We note that the Appellant did not record on the original application form for registration that there was any doubt about the conviction or it was currently under investigation.
19. In the context of the 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 he was of good character. We have expressed the matter in that way, accepting as did the Council that the fact of the convictions alone was not such as to have prohibited registration. The crux of the case is failure to disclose and to give a transparent and full account.
20. The purpose of this legislation is to introduce control and regulation of social workers in the interests of those requiring and using their services together with the interests of the community as a whole. The need for full and frank disclosure is made clear by the application form and is fundamental to the process of registration. We accept, as did the Tribunal in CR that transparency is vital.
21. A social worker occupies a position of trust and where a person seeks to hold a position of trust a regulatory body is required to be satisfied that criteria are met and then they must demonstrate that they meet those criteria and any doubts must be resolved against registration. Not every conviction as agreed by Mr Skidmore would mean that somebody would not be registered. We have taken fully into account as set out in Mr Skidmore's statement, that if the facts surrounding an offence are clear then an assessment of risk has to be made. A number of factors may be relevant not least the time that has elapsed and what the person has done since that time. The difficulty in this case is that the facts of those two offences are still not clear. The onus is upon the Appellant to demonstrate that he is a person of good character.

Findings

22. The conduct we accept of a person in relation to the application process is clearly a matter that can be taken into account when determining whether the Applicant has demonstrated that he is of good character. In this case the Appellant, whilst he might prefer to forget events of 1991, knew the significance of the information because he had revealed it when applying to do his diploma course at Havering College and had been questioned about it. There was no evidence as to what he had told the college but it must have refreshed his memory. The Registration Committee fairly investigated this incident but the Crown Court records have now been destroyed. Before us the Appellant had a much fuller opportunity to set out his case, without having to respond to specific allegations or information that was emerging piecemeal but still did not give a clear and coherent action as to what had happened.
23. A drink driving disqualification as recently as 2002 is undoubtedly a serious matter. The Appellant has always said that he doesn't drink and that it was not him in the car on that night. However, he has never produced any evidence to substantiate that assertion. In those circumstances we cannot go behind the conviction.
24. We fully appreciated the difficulties of the Appellant presenting his case without any representation or advice and who felt his good character is being challenged. However, the Appellant is a man who presents himself as educated to Master's level of education and who has chosen to enter a profession, which is regulated, by statute, regulation and procedure. That and the requirements of a profession, which would call upon the Appellant to present a case and explain his actions, mean that we must construe that burden strictly. It was not a case of the Appellant's character being challenged but his failure to appreciate that it was up to him to establish his good character by presenting evidence to support what he told us and by giving a full, frank and consistent account of his history.
25. The unanimous decision of the Tribunal is to dismiss the appeal.

Order

The Appeal is dismissed.

Miss M E Lewis - Chairman

Susan Howell

Ken Coleman

Date: 10 July 2006