England and Wales Care Standards Tribunal

 


Neil de Almeida v General Social Care Council [2007] EWCST 1000(SW) (17 October 2007)

BEN NEIL de ALMEIDA V GENERAL SOCIAL CARE COUNCIL [2007] 1000.SW Before Mr Laurence J Bennett (Nominated Chairman) Mrs Jenny Lowcock Mrs Susan Gilhespie

Heard at Leeds Combined Courts

1 October 2007

Appeal

1. Mr de Almeida (the Appellant) appeals under Section 68 of the Care Standards Act 2000 (the Act) against the refusal of the General Social Care Council (the Respondent) to register him as a social worker on the Register maintained under section 56(1) of the Act.

Representation

2. Mr de Almeida appeared in person.
3. The General Social Care Council was represented by Mr Iain Miller of Bevan Brittan Solicitors.

Facts

4. On 22 October 2004 the Appellant submitted an application/registration as a social worker. On the application form in answer to question 7 he disclosed convictions for criminal offences:

Criminal damage 05.09.86

Drink driving 15.03.02

Drunk and disorderly 17.03.03

Drink driving 13.08.03

He also disclosed cautions:

Criminal Damage 17.11.95

Drunk and disorderly 10.04.98

5. Question 8 on the application form asks "Do you have a physical or mental health condition that may affect your ability to undertake your work in social care?" The Appellant placed a ... in box 'No.' The form concludes with a personal declaration in which is stated: "All of the information I have provided on this form is correct to the best of knowledge and belief," and an understanding that: "The General Social Care Council can refuse to register me if I have given false information or have withheld relevant details."
6. Following receipt of the Appellant's application the Respondent undertook further enquiries in correspondence and email with Mr de Almeida in which he was asked for and supplied further details regarding the criminal convictions, particularly the circumstances surrounding the convictions for drink driving. This led to a letter dated 15 November 2005 which included "I intend to write to each of your named persons and ask them to provide a character reference. I will ask them to give their opinion on your good character and rehabilitation, with regards to your criminal convictions/cautions. Please note that although we will tell them that you have a criminal conviction we will not disclose the nature of the offences.

"You have not made a declaration in the health section of the application form but it would be helpful to us to have some reassurance on this point and to this end I am enclosing a consent form with the request that you complete it, giving us permission to contact your GP."

7. The Appellant's response dated 24 November 2005 gave additional details and comment regarding his personal circumstances at the time of the offences. The letter included: "I would like to take this opportunity to inform the Council that I have no objection to the GSCC consulting with my GP for medical information but must inform the Council that recently that I have had consultation with my GP regarding personal depression since I have been out of work, having this registration unconcluded and various other personal problems. I do however consider that these issues would not impact detrimentally on my ability to practice Social Work and indeed it is due to the uncertainty of registration that is causing me much anxiety." This was the first time issues relating to depression have been mentioned.
8. A "Medical Attendance Report" from the Appellant's doctor dated 10 January 2006 disclosed consultations and medication for depression and anxiety from around June 2004 and under "significant past" details of self-inflicted lacerated wrists and drug overdose; it also noted Alcohol Dependence Syndrome in 1997. There is no recorded time off work.
9. The Appellant wrote to the Respondent on 23 January 2006 commenting upon the CRB check providing further explanation of the incidents disclosed. His letter included: "I would also like to state that at the time of applying for the GSCC Registration I was in full time employment as a social worker and genuinely felt that I was fit to work and therefore did not mention any health concerns, as I was working in Social Care, unaffected by my problems regarding depression as it was managed.

"I would also like to add that while I have been susceptible to episodes of depression, this has never prevented me from practicing Social Work to all the appropriate standards and all my employers, I would like to think would support this. I'm sure that I am not alone in having to admit episodes of depression but I have sought professional support with this and consider it not to be a barrier to appropriate practice as a social/health worker.

"I would like this letter to be officially filed and I would like to state that I am more than happy to discuss with the council any concerns they may have regarding the appropriateness of my name being included on the GSCC Register."

10. References from previous employers requested by the Respondent expressed satisfaction with the Appellant's work.
11. The Appellant gave details of his circumstances at the time of his convictions in a letter dated 18 September 2006. They included marital problems, depression and anxiety and referral to counselling. He mentioned an alcohol rehabilitation course and AA meetings. He stated that he is in full-time employment for Network Rail where he is subject to annual medicals and random testing for drugs and alcohol for which there is zero tolerance. He said he also has blood tests and liver function tests by his GP and recently by DVLC in connection with the return of his licence.
12. The Appellant gave consent for the Respondent to contact his counsellor, Mr Jim McDonald of the Community Mental Health Team. There was telephone contact between Mr McDonald and the Respondent on 27 September 2006, a note of which records: "Their sessions were more about getting the applicant motivated and active in getting his life back on tract. He says that the applicant did well and worked his way through his depression and anxiety."
13. On 12 January 2007 the Respondent issued a Record of Decision and Notice of Recommendation for conditional registration of the Applicant. The Notice of Recommendation referred to the Appellant's physical and mental health condition, reviewed the information received, provided a casework assessment which included: "Potential impact on service users: The potential for the applicant's depression to have a direct negative impact on service users is low as he internalises his distress until it has to be expressed in some manner resulting, in the worse circumstance, in self-harm. However, alcohol dependence carries a greater risk. The applicant has convictions for drink-driving, most recently in August 2003 and on both occasions he maintains he was caught on the day after drinking the night before, when he thought the alcohol would have left his system. It is not beyond the bounds of possibility that, in similar circumstances, he could carry service users in his car when under the influence of alcohol." It concludes with a recommendation: "The Council is minded to grant your application subject to the following conditions:

For the period of your three-year registration you must:

Inform any future social care work agencies, employers or commissioners of your services about your health conditions and;

Ensure you co-operate with your employer's occupational health department and are compliant with any advice they may issue."

14. Under 'Reasons for the proposed conditions' it notes that: "Nevertheless, the Council is satisfied that you are of good character and conduct for the purposes of registration and physically and mentally fit to perform the whole of part of the work of a social worker …………."
15. Mr de Almeida made final written submissions to the Respondent in February 2007, reviewing his problems with alcohol consumption, mentioning his depression stating "These days are behind me …….. as I am a much stronger and insightful person than in the past." He referred to his successful employment as a social worker in child protection work and requested registration.
16. By A Notice of Decision dated 8 March 2007 the Appellant was informed that the Registration Committee had decided to refuse his application for registration. The reasons included at paragraph 2b "The Committee noted the evidence in the papers before it relating to your health conditions. There appeared to be a history of depression and alcohol related issues. It took account of your representations that these have not been significant for the last two to three years. It considered that these issues would not have stood in the way of your registration, all other things being equal." The reasons largely refer to concerns about the Appellant's honesty and integrity, particularly the lack of declaration of health conditions at a time shortly after an overdose with antidepressants and alcohol and consultations for anxiety, panic attacks and depression. Paragraph 2d states that: "The Committee considered that you should have known that you were required to declare issues of this nature and therefore your failure to do so cast considerable doubt on your integrity." The reasons also note that the Appellant's explanations about his convictions fail to show "Significant acknowledgement of the seriousness of the offences or adequate remorse." It pointed out inconsistencies in the various accounts given.
17. Mr de Almeida explained that he had not thought it necessary to disclose details of his mental health problems because at the time they had resolved and although he has been prone to depression since early teenage years, it had not affected his work and he was at the time in social work employment without problems. He did not "interpret" the question on the form as requiring that information as it had not nor did he foresee adverse affect on his ability to be a social worker.
18. The Appellant stated that the convictions for drink driving were some years ago and it was axiomatic that his judgement at the time and recall of detail would be impaired because of drink. He gave further account of the help he has received under treatment and the interaction of his depression and alcohol. He accepted that his tendency to depression and to use alcohol as a 'crutch' could not be dismissed but it had not affected his work in the past. He has not had convictions since and successfully holds employment which has zero tolerance of drink and drugs. He has come to terms with the personal circumstances which caused his problems around the time of the offences and no longer receives any form of treatment.
19. Mr Miller submitted that refusal of registration was not a punishment for previous convictions but arose from the Appellant's lack of integrity in providing the information required with his application. He drew attention to the inconsistencies in some of the information supplied and the fact that many details only emerged after continuing correspondence from the Respondent and as a result of enquiries of the Appellant's GP. Mr Miller summarised that the Appellant had "not been straight" with the Respondent. He submitted that this lack of good character gave rise to a risk to the public and that it would be prejudicial to the reputation of the social work profession for the Appellant to be registered. He summarised that the protection of the public required refusal of registration as issues of integrity brought into question the Appellant's good character such that they gave rise to a risk
20. The Appellant stated that he could accept that if convictions for drink driving offences were a bar to entering the profession he was rightly refused registration. He stated he has had to live with the consequences of his convictions and face the problems they have caused. However, he has not failed to disclose information in such a way as to amount to an intentional lack of integrity. He stated that in interviews with employers he always disclosed his background, this has led on occasion to refusal of employment. He has sought help for his problems and has continuing medical evidence to show he is clear of alcohol. He disputed that the reputation of the profession would be damaged by registering an individual with his record of convictions. He was happy to accept and invited the conditions recommended by the Respondents Conduct Manager.
21. Mr Millar referred the Tribunal to the judgement of Sir Anthony Clarke, Master of the Rolls in Jideofo & Others 31 July 2007 as yet unreported and to the conclusions of the Tribunal in previous decisions AI & General Social Care Council 2006 0683SW and CR & General Social Care Council 2006 0626SW. He submitted that they supported the Respondent's view that it is for the Appellant to prove his good character and the importance of openness and integrity to the conclusion about good character within the meaning of the Act.

The Law

22. i. The GSCC was formed by virtue of Section 54 of the Care Standards Act 2000 ("the Act") with the responsibility for promoting in England high standards of conduct and practice and training among social workers.

ii. By section 56 of the Act the GSCC became responsible for making and maintaining a register of social workers. Section 57 of the Act provides that applications for registration shall be made to the GSCC.

iii. Section 58 of the Act sets out the grounds upon which applications shall be granted.

(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.

23. 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:
24. 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;

25. Section 68 of the Act provides the right of appeal against a decision to refuse an application for registration to the Care Standards Tribunal.
26. 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;

27. 2 Communicating in an appropriate, open, accurate and straightforward way."
28. 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.

Tribunal's conclusions with reasons

29. The purpose of the 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.
30. We note that the Appellant's registration was refused on the grounds that he was not of good character. We note from the recommendation to the Registration Committee by the Conduct Manager and the final reasons for refusal, that the Appellant's history of depression and alcohol related issues was not determinative. From the information provided during the application process and the additional information arising from the Appellant's attendance and oral evidence at the hearing, we concur. We are satisfied that the issues disclosed are sufficient to conclude that he is now physically and mentally fit to perform as a social worker, subject to the recommended conditions. We find those conditions relevant and appropriate to the Appellant's history and circumstances.
31. We have considered the underlying issues that gave rise to the Respondent's concerns about the Appellant's honesty and integrity. We note its expectation that the Appellant should have declared his depression and alcohol dependency, disclosed in doctor's records in response to the questions in the application form. We do not agree; the question is relatively vague and requires a subjective judgement by an applicant. It does not give examples of the type of information that should be disclosed. We find the Appellant's reasons for ticking the 'No' box subjectively justified and in view of the width of the question, objectively justified in that there have been no demonstrated or evidenced difficulties relating to his employment arising either from his underlying medical problems or their treatment. We accept that the Appellant's response as explained was acceptable in the light of his then circumstances. Had the question asked for absolute disclosure, we might have taken a different view; it did not. It is unrealistic to expect that individuals who do not feel that matters affect them in the way requested should be disclosed. Once the information surfaced, we are satisfied that the Appellant gave appropriate comments and took sufficient steps to provide further and fuller details.
32. The Respondent's decision refers to discrepancies in the explanation of the Appellant's convictions. It suggests there has not been sufficient acknowledgement of the seriousness of the offences or adequate remorse. We accept that additional information has come to light over time and that on a strict reading there are slightly different descriptions of some elements of the offences. We do not find such discrepancies are significant and consider that they are within the order might arise in repeated requests to revisit the same ground. The offences took place some years ago; additional detail was requested and additional detail supplied. We note that the Appellant did not appear before the Registration Committee and was not able to explain some of the words he used in his self drafted correspondence
33. Following 29 and 30 we do not consider the Appellant's application or his response to enquiries by the Respondent was such that give rise to significant doubts about his integrity. Such doubts that surface do not in our opinion amount to a lack of good character within the statutory requirements for registration. We find no basis to suggest that because of that his registration would place the public at risk damage the reputation of the social work profession.
34. Our unanimous conclusion is that the Appellant satisfies the requirements for registration as a social worker and shall be granted registration subject to the conditions mentioned in paragraph 28.

Order

The General Social Care Council shall register Mr Ben de Almeida as a social worker subject to the conditions that:

For the period of his three-year registration he must:

Inform any future social care work agencies, employers or commissioners of your services about your health conditions and;

Ensure you co-operate with your employer's occupational health department and are compliant with any advice they may issue.

Mr Laurence J Bennett (Chairman)

Mrs Jenny Lowcock

Mrs Susan Gilhespie

Date: 17^th October 2007