England and Wales Care Standards Tribunal

 


Convey v The Secretary of State for Education and Skills [2006] EWCST 758(SW) (07 December 2006)

MAUREEN JOANNE CONVEY

Appellant

-v- GENERAL SOCIAL CARE COUNCIL

Respondent

[2006] 758.SW Before: Mr Mark Rowland Mrs Susan Howell Mrs Geraldine Matthison

Ms Eleanor Grey, instructed by Field Fisher Waterhouse, appeared for the Respondent.

The Appellant appeared in person.

DECISION
1. Like many local authorities, Flintshire County Council has found it difficult to recruit qualified social workers. In 2004, a recruitment campaign in the United Kingdom attracted only three enquiries and one applicant, who withdrew on the day before the interview. So Flintshire decided to look abroad and, in 2005, carried out a recruitment exercise in Canada with the help of a recruitment consultant. There were 135 enquiries and 21 people were interviewed. Ms Maureen Convey, who worked for the East Central Alberta Child and Family Services Authority, achieved the highest score in the exercise and therefore it is not surprising that she was one of those offered employment. She had already applied in April 2005 to the General Social Care Council ("the Council") for registration as a social worker, as had other applicants who wished to obtain work permits and visas. The registration process was particularly protracted in Ms Convey's case, a state of affairs for which each party fairly accepted some blame, but she had a United Kingdom passport and was able to commence her employment in January 2006 although, of course, she could not be described as a social worker because she was not registered. She is described as a leaving care worker because she works in the Leaving Care Team. On 7 July 2006, the Council eventually refused to register Ms Convey as a social worker on the ground that she did not possess adequate qualifications. Ms Convey now appeals against that decision.
2. The Council is established under Part IV of the Care Standards Act 2002, which provides for the registration of social workers and social care workers. A Care Council for Wales is also established. There is no requirement that a person be registered in the part of the United Kingdom where he or she lives or works and we did not ask why the application in the present case had been made to the English Council when Ms Convey was expecting to work in Wales. By virtue of section 58, a person may be registered as a social worker only if he or she is of good character, is physically and mentally fit, satisfies the provisions of section 58(2)(a) in relation to training and satisfies certain requirements as to conduct and competence. In this case, it is only the condition in relation to training that is in issue.
3. Section 58(2)(a) makes it a condition of registration as a social worker that –

"(i) he has the 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".

4. Until the first graduates of the new social work degree courses approved under section 63 emerge, applicants for registration who have trained in the United Kingdom are required by section 58(2)(a)(iii) and rule 4(10)(c)(ii)(bb) of the General Social Care Council (Registration) Rules 2005 to have "successfully completed a course or possess a certificate or similar documentation, as set out in SCHEDULE 1 to these Rules". The courses that are listed are certain university qualifications obtained prior to 1971 or approved for the purpose of membership of the constituent organisations of the Standing Conference of Organisations of Social Workers in March 1970. The certificates, letters and other evidence of training that are listed are documents issued by the Council and various predecessors from 1947 onwards, including the "Diploma in Social Work issued by either the Central Council for Education and Training in Social Work or the Council from 1991 onwards".
5. Provision is made in section 64 for applicants for registration who have trained in EEA States other than the United Kingdom and for those who have trained elsewhere. Only section 64(1)(b) is relevant to this case. That provides that the requirements of the section are met if –

"he has, elsewhere than in England, undergone training in relevant social work and either –

(i) that training is recognised by the Council as being to a standard sufficient for such registration; or

(ii) it is not so recognised, but the applicant has undergone in England or elsewhere such additional training as the Council may require."

6. Ms Convey holds a diploma recognising that, in 2000, she successfully completed the Child and Youth Programme at Grant MacEwan Community College in Alberta. This was a two-year diploma course but the study could be done on a part-time basis. Ms Convey did the course while working and her participation was interrupted by breaks due to parenthood and work responsibilities so that she did it in four phases, 1987-88, 1993-94, 1995 and 1999-2000. The status of this diploma is at the heart of this appeal.
7. However, it is not the only issue. Ms Convey has also relied upon her practical experience in Canada. From 1978 to 1987, she was involved in youth work in various residential settings. She started as a childcare worker and recreation co-ordinator and then had a spell as a child-care counsellor before becoming a senior youth worker with supervisory responsibilities. In 1988, having started her diploma course, she was appointed as a manager with Alberta Bosco Homes, being involved in the setting up and running of residential group homes as well as working with individual children and their families and with other agencies. After a six-month break, she then worked for four years as a programme co-ordinator and supervisor of a six-bed group home for McMann Youth Services. During this period, she continued her studies and that led to her having a six-month maternity leave contract as a family-school liaison worker for the Town of Tofield. That was followed by six months as a Family and Community Support Service worker and recreation co-ordinator. In February 1996, she became the supervisor for the five residential homes at Bosco Homes Treatment Center, managing approximately 50 staff and monitoring the service delivery plans for 50 residents. She remained there until July 2000 when, having obtained her diploma, she obtained her employment with the Government of Alberta, which she started in September of that year. As a Service Facilitator of the East Central Alberta Child and Family Services Authority, she had delegated to her functions as a child protection case manager which included responsibility for investigations. Since moving to Wales in January 2006, she has had a case load of about 15 young people between the ages of 15 to 21 who are leaving, or have left, care. She develops and reviews their pathway plans, re-assesses their financial support and so on.
8. In the course of her career, Ms Convey has attended a considerable number of courses of one sort or another, including a four-week course on child protection in 2000 to qualify her as a person to whom social work functions could formally be delegated in Alberta, a course in the investigation of child sexual abuse in 2001, further courses in the "Child Youth" field in 2004 and several courses in connection with her current job with Flintshire.
9. We received evidence from Ms Cathrine Clarke, the Education Standards and Information Manager, Social Work Education Group of the Council. She explained that, in considering whether training is "to a standard sufficient for … registration" for the purposes of section 64(1)(b)(i), the Council considers both the academic standard of the training and its professional content. The comparator used by the Council is the Diploma of Social Work, which is now the qualification held by the majority of social workers in the United Kingdom. The Council obtains a comparability statement from the National Recognition Information Centre for the United Kingdom ("UK NARIC") and then appoints an assessor to advise it whether the standard is met on the basis of the applicant's qualification alone or, if there is a significant shortfall, whether it is met on the basis of that qualification taken with the applicant's other training and work experience. Sometimes, a second or even a third assessor may be appointed.
10. In this case, the comparability statement issued by UK NARIC in respect of Ms Convey's Canadian qualification states that "Diplomas (Two Years) is [sic] considered comparable to Advanced Vocational Certificate of Education (AVCE)/BTEC National Diploma standard".
11. The first assessor considered that Ms Convey needed further training, but need not completely retrain. She said –

"Clearly, Ms Convey's qualification does not in itself meet the requirements of the DipSW; and although she has a long history of residential social work experience, this is not in itself broad enough to fill the gaps which remain. I consider that she needs a period of further training, and suggest that she undertakes the final year of the DipSW, with a placement in a statutory social work setting which will give her experience of current social work practice and legislation whilst allowing her to maintain and build on her existing 'generic' social work skills."

12. A second assessor was appointed by the Council. He considered that Ms Convey did not need to undergo further training before registration, concluding that, "as this Applicant's qualification appears to be in an aligned profession" her other training and work experience should be taken into account. He noted that Ms Convey's course "shows limited overlap with the academic modules of the British Diploma in Social Work" and, although she did complete practice placements as part of the course, "the qualification does not in itself meet the requirements of the DipSW". However, he considered that Ms Convey's "experience is relevant and accords with the professional activities of a qualified social worker". There was independent practice evidence, including a performance review of her last year's practice validated by a line manager. He therefore concluded –

"In my opinion, the Applicant has supplemented her past qualification with significant post-qualifying training, and she has significant experience engaged in activities equivalent to those of a qualified social worker. On this basis, I believe the Applicant has produced sufficient evidence to demonstrate the DipSW requirements, on the grounds of qualification, relevant training and significant work experience. I do not recommend that she is required to undertake social work training in the UK."

13. The Council did not accept either of those assessments and took the view that Ms Convey needed to qualify from scratch. The reasons are summarised in a report by the manager of the Council's International Recognition Service –

"… whilst the first assessor recommended additional training, they recommended 1 year in length; the purpose of additional training is more 'top up' and consequently the assessor should have recommended that they train here if the gap is that substantial. In addition, whilst the second assessor recommended that they met the DipSW requirements, this is not accepted because the applicant's training is not in social work and is academically lower than that required."

14. In relation to the first assessor's report, Ms Clarke expanded on the Council's case in her evidence to us. She made the point that it would generally be a matter for the academic institution concerned whether a person should be admitted for part only of a degree course – the Diploma in Social Work no longer being offered – and that it would usually do so only if it took the view that the qualification obtained overseas justified exempting the student from the requirement to take particular parts of the course in order to gain the degree. The Council could therefore make a suggestion to an applicant that that might be possible but it would be a matter for the academic institution to make the decision. She suggested, in effect, that the "additional" training envisaged by section 64(1)(b)(ii) must be training of a much more limited nature than taking a substantial part of a degree course, because the latter would usually result in the student gaining a degree and satisfying the condition of section 58(2)(a)(i). We accept that argument. If it is considered that an applicant needs to take a substantial part of a degree course, the correct approach is simply to refuse registration and leave the applicant to approach an academic institution to find out whether exemption from part of the course will be given. Moreover, it seems to us that the use of the words "may require" in section 64(1)(b)(ii) are potentially misleading. They refer to training the applicant "has" undergone already and so they are not to be construed as permitting a person to be registered on condition that training will be undertaken. They should be read as "may accept as enough to make up the deficiency" or something to like effect. (A student following an approved degree course may be registered but that is another matter.)
15. We also observe that section 64 does not expressly state that training must have been undergone successfully but we accept Ms Clarke's point that the context makes it clear that training is relevant only if the applicant has reached a required standard as demonstrated by assessment, whether by examination or otherwise.
16. It is also important to note that section 64(1)(b)(ii) refers only to training and not also to experience. That is not to say that experience is entirely irrelevant. It may imply training and will almost certainly imply learning. However, it must be borne in mind that section 58 draws a distinction between training and competence and that those who have not trained abroad are not entitled to rely on their experience to gain registration if they have not obtained one of the recognised qualifications in the United Kingdom. Ms Clarke said that the second assessor had misunderstood the Council's guidance, which envisaged that experience would be relevant only where qualification in a related discipline was a recognised path into social work in the relevant country. There was no evidence that the diploma gained by Ms Convey was a recognised path towards registration as a social worker.
17. The Council argues that Ms Convey's training is not of a sufficient standard on two separate grounds. The first is that she has not been trained to an adequate academic standard. The second is that the professional content of her training has not been of sufficient breadth. Ms Convey challenges the Council's view on both issues, but it is important to keep the issues distinct.
18. Insofar as the academic standard of the diploma course she followed is concerned, Ms Convey does not challenge the Council's view that an Advanced Vocational Certificate of Education (AVCE) or a BTEC National Diploma would be of a lower standard than a Diploma in Social Work. However, she submits that UK NARIC's comparability statement is inaccurate and that the diploma she gained in Canada was of a standard equivalent to a Diploma in Social Work.
19. Ms Grey at first argued that the comparability statement was binding on the Council and us but she modified her submission to argue that it would be perverse for us not to accept the comparability statement. On the evidence before us, we accept her modified submission, but we can see no reason why a comparability statement should not be challenged before a tribunal if an appellant can produce compelling evidence to contradict it. The statement itself records –

"This statement is provided as guidance by UK NARIC, and is not the result of an individual assessment"

As Ms Convey pointed out, there is no indication as to how, and on the basis of what evidence, the comparability statement was made in this case. Nonetheless, UK NARIC is an expert body and so its guidance should be presumed to be reliable unless there is some good reason to doubt it. The problem with Ms Convey's case is that she has no evidence that casts real doubt on the comparability statement. She has produced the names of the various modules she completed but they do not assist us in determining the academic standard of the course. She has also produced evidence that the Open University recognises qualifications obtained from Grant MacEwan Community College. However, that evidence does not refer specifically to the diploma she obtained and, in any event, does not show what recognition is given to any particular qualification. All it suggests is that there are some qualifications from Grant MacEwan Community College that exempt a person from some parts of some Open University courses.

20. Ms Convey's in-service training and her experience do not, in our judgment, make up for the academic shortfall of her course at Grant MacEwan Community College. The training was not assessed and none of the evidence before us suggests that the academic standard required to participate in it was particularly high. Her performance in her work was assessed but it seems to us that the assessment is relevant to Ms Convey's competence rather than any academic attainment. Her work did not necessarily imply a particularly high academic ability, although her performance plainly showed other abilities. Indeed, we broadly accept Ms Clarke's approach and suggest that, as a general rule, work experience will not make up for an academic shortfall and is likely to be relevant only where a person has attained the requisite academic standard in a related discipline and then applied that training in a social work setting.
21. Ms Convey's strongest point in relation to the academic shortfall of her diploma was that there was considerable overlap between the modules on her course and those on a two-year diploma course in social work run by Grant MacEwan Community College that was recognised in Canada as sufficient qualification for registration as a social worker. However, the fact that the social work programme diploma could lead to registration in Canada does not necessarily mean that it is of a similar academic standard to the British Diploma in Social Work because the academic standards required for registration in the two countries may not be the same. We did not receive any evidence on that point.
22. In any event, Ms Convey's case runs into difficulties on the second issue in this case because, despite the degree of overlap between the diploma she gained and the social work programme diploma, there are large areas which the child and youth programme did not cover. Focussing as it did on children and young people, it did not cover adult mental health or the elderly and there was no social work theory module. Ms Convey told us that she studied theory in psychology, but that is not the same as social work theory and her not understanding the distinction is significant.
23. Ms Convey's in-service training and experience again do not help her. As we have indicated, these are matters that are far more likely to assist an applicant to make up a shortfall in the breadth of a course rather than a shortfall in its academic standard but, in this case, they do not do so because, like her diploma course, her in-service training and experience have largely been related to children and young people. We heard evidence as to Ms Convey's competence in working with children and young people, but that is not the issue in this case, even though she wishes to continue working only in that field.
24. Ms Clarke told us that the child and youth programme diploma was not recognised by the Canadian Association of Schools of Social Work as a social work qualification even in Canada. Ms Convey told us that, in the mid-1990s when she had completed the equivalent of the first year of the diploma, she could have registered as a social worker on the basis of the studying she had done and her experience. She had not registered because it had been unnecessary for her to do so as registration is not a prerequisite for practice as a social worker in Alberta. However, she did not think she would still be eligible to register, although she was not sure. Neither Ms Clarke nor Ms Convey produced documentary evidence in support of their assertions, but we see no reason not to accept them as they do not conflict with each other (and do not amount to grounds for registration, which need clearly to be supported by verifiable evidence).
25. If the Canadian authorities are not now prepared to recognise Ms Convey's diploma as an adequate qualification for registration as a social worker in Canada, whether because it was not of a sufficiently high academic standard or because its content was not sufficiently broad or both, it is very difficult to see why the qualification should be recognised as justifying registration in England. Since at least 1971, social workers wishing to qualify in the United Kingdom have been required to train to high academic standards over a wide range of subject areas. It is plainly the intention of the legislature that those from overseas who wish to acquire similar status in the United Kingdom must show an equivalent standard of training.
26. On the evidence before us, we are not satisfied that Ms Convey has been trained to a sufficiently high standard to be registered as a social worker in England.
27. That is not to say that she cannot be employed by Flintshire or any other social services authority to carry out some of the functions that are normally carried out by social workers. An employer is entitled to make appropriate use of her undoubted abilities in carrying out its statutory functions. Many functions of social workers can be delegated to her under appropriate supervision, as they were in Alberta. The extent to which it is proper to delegate such functions to a person who is not registered is a matter for employers and for the Council and other United Kingdom registration authorities as representatives of the profession. If there continues to be a shortage of qualified social workers in some areas, the use of staff who are not registered social workers may become more common. But there are differences between Alberta and Wales. Most relevantly, a person exercising delegated functions in Wales while not registered as a social worker by one of the registration authorities in the United Kingdom is not entitled to describe himself or herself as a social worker.
28. Towards the end of the hearing before us, Ms Convey indicated that she wished to explore further with UK NARIC the comparability of her course and she also wished to check her position so far as registration in Canada was concerned. Ms Clarke indicated that there was a degree of reciprocity between countries as to the registration of social workers and Ms Grey accepted that, if either UK NARIC revised its comparability statement or it became clear that the diploma held by Ms Convey was in fact recognised by the registration authorities in Canada, the Council might be prepared to reconsider its position. This is not unreasonable. Some flexibility has to be retained to take account of the different opportunities available to those training in different countries and if the Council were to be persuaded that the academic shortfall between Ms Convey's diploma and an equivalent United Kingdom qualification was not as great as currently appears to be the case, it might be persuaded that the lack of breadth of the qualification could be made up from additional training falling well short of a degree course.
29. We discussed with the parties whether, if we were not satisfied that Ms Convey should be registered as a social worker, we should adjourn these proceedings while she made further investigations or whether we should dismiss the appeal in the light of the evidence before us, in which case there would be nothing to stop Ms Convey from making another application for registration in the light of any new evidence she obtained. Ms Convey indicated that one reason that she favoured an adjournment was that making a fresh application for registration would involve paying another fee. We bear that in mind, although it is possible that the Council might waive the fee if it were persuaded that Ms Convey actually had a good case and that waiver was within its powers. However, we consider that it would be appropriate to adjourn only if we had some doubt about the correctness of UK NARIC's comparability statement or we considered that it was likely that Ms Convey would be able to produce evidence that she was entitled to be registered as a social worker in Canada and if we were satisfied that Ms Convey had not had an adequate opportunity to obtain further evidence.
30. So far as the opportunity to obtain evidence is concerned, it might have been helpful if the Council had made its reasoning plainer when telling Ms Convey that it was minded not to register her and when giving its final decision. It is not clear when the UK NARIC certificate was first sent to Ms Convey and the role of UK NARIC was explained. Also, the statement that she "has not trained in social work" was open to misinterpretation by Ms Convey, who plainly was trained in some aspects of social work, although in fairness to the Council she did not at first describe her training in that way. The issues were as to the academic standard and breadth of the training, rather than a complete lack of relevant training. (The Council may wish to consider whether to explain more fully the significance of a UK NARIC certificate when one is relied upon to show an academic shortfall in a course and whether to use different terminology when referring to the lack of adequate professional content in a course. The clearer the reasons for a decision, the less likely it is that an appeal with no prospects of success will be brought before a tribunal.) Also, until Ms Clarke made her witness statement in this appeal, no reference was made by the Council to the significant fact that Ms Convey's diploma was not recognised even in Canada as a social work qualification. The consequence of the way the Council's case was explained to Ms Convey is that, until the hearing before us, the issues appear not to have been as clear to her as they could have been.
31. Nonetheless, Ms Convey had been aware of the Council's case in broad terms and she has had sufficient opportunity to produce evidence that might at least throw some doubt on that case. None of the evidence that she has produced has raised sufficient uncertainty in our minds to justify adjourning. There is no evidence that raises any doubt about the accuracy of the UK NARIC certificate and she herself does not think that she would be eligible for registration as a social worker in Canada. Moreover, we consider it extremely unlikely that any further evidence she might be able to obtain would justify registration before she had undergone some further training and we are not prepared to adjourn for as long as it would take her to complete the training.
32. We therefore dismiss this appeal.

Mark Rowland

Susan Howell

Geraldine Matthison

Date: 7^th December 2006.