England and Wales Care Standards Tribunal

CT

Appellant

v

The General Social Care Council

Respondent

[2007] 1014.SW

Before

Mr. Stewart Hunter (Nominated Chairman)

Ms. Carole Alford

Mrs. Carol Caporn

Sitting at the Care Standards Tribunal, Pocock Street, London

on the 8th and 9^th October 2007

DECISION

Representation

At the hearing Mr D Fadina, a solicitor represented CT. Mr. A. Ruck Keene of Counsel, instructed by Bevan Brittan LLP, represented the Respondent.

Appeal

1. This is an appeal by CT under Section 68 (1) of the Care Standards Act 2000 ("The Act") against the decision of the General Social Care Council ("GSCC") made on the 12^th February 2007 to refuse her application for inclusion on the register of social workers, as a student.

Preliminary matters

2. On the 13^th July 2007 the President of the Tribunal made a Restricted Reporting Order under Regulation 18 (1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2001, prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matters likely to lead members of the public to identify any service user or the appellant, such order to continue in force until the conclusion of the hearing. At the hearing the Tribunal confirmed that the Restricted Reporting Order should remain in force until further order.

Evidence

3. The Tribunal read the witness statements from Ms Pam Venus and Mr Divyakumar Patel. The Tribunal also read the statement of Ms W M. The appellant also submitted statements from herself dated 17^th February 2007 and the 12^th September 2007 as well as giving oral evidence. In addition the Tribunal read letters from Ms Venus, Samual Baeza, Janet Aldridge and Ms LS and considered various documentary evidence produced by both parties.

Background

4. The appellant completed an application dated 26^th September 2005 for registration with the GSCC as a student social worker. On the form the appellant indicated that she had started a BA (Hons) Social Work course at the University of Chichester on the 19^th September 2005. The appellant also gave details of her employment, including having worked as a care assistant at a residential home known as B H between the 2^nd November 2002 and August 2005. At the time of submitting her application form the appellant indicated that she was working as a care assistant at another home, Cornelius House where she had been since the 4^th April 2005.
5. On the same form the appellant answered questions under the heading "Discipline record". In answer to the question

"Is there a current disciplinary finding against you by an employer, educational establishment or other organisation?"

The appellant had replied;

"No".

In response to the question:

"Are you currently the subject of a disciplinary investigation by an employer, educational establishment or other organisation?........."

The appellant had replied;

"No".

6. The application form was received by the GSCC on the 3^rd October 2005.
7. The application for registration was considered by the GSCC and following investigation a recommendation was made by the Head of Conduct at the GSCC, Robin Weekes to refuse the appellant's registration, his recommendation was set out in a notice dated 26^th September 2006.

Under the heading of "Summary of issues of suitability" he stated the following: -

"The student is on the BA (Hons) Social Works course at Chichester University and began her studies in September 2005.

On page 6 of her application form the student has "tippexed" out a declaration relating to her disciplinary record. This stated that she failed to follow instructions during a fire incident and was dismissed from her employment at B H, a residential home for the elderly mentally infirm, in August 2005. The student failed to report this dismissal and the reason for it to Chichester University and to her second employer, Cornelius House."

The recommendation of Robin Weekes was that: -

"… the applicant be refused registration for the reasons outlined…"

8. A notice was sent to the appellant indicating that the GSCC had referred her application to its Registration Committee, because it was minded to refuse her registration. The appellant was notified that the Registration Committee would consider her application at its meeting on Wednesday 3^rd November 2006. The appellant was advised that she had a right to make written representations to the committee or to attend the meeting to make oral submissions.
9. The Registration Committee adjourned its meeting on the 3^rd November 2006 and the matter was eventually heard on the 12^th February 2007. A transcript of that meeting indicated that the appellant attended for part of the proceedings and was represented by Ms Lucia Ndoro of Peter and Co Solicitors. The GSCC subsequently notified the appellant that the outcome of the Registration Committee had been to refuse the appellant's application for registration on the student part of the register. The committee had not been satisfied that the appellant was of good character and conduct. The reasons for the Registration Committee's decision were given as follows: -

(a) The appellant had been dismissed for gross misconduct by Eldra Caru (the owners of B H) on the 16^th August 2005 following an incident at B H on the night of the 3^rd of August 2005. The appellant had not appealed against the decision. The appellant's acts on the night of the fire indicated a lack of judgement and a failure properly to protect service users. A service user's life was put at risk. In particular the committee noted the appellant's failure to previously close the fire doors and undertake a thorough check of both floors.

(b) The appellant had consistently downplayed the gravity of the incident and her involvement in it to the GSCC, her university and her employer, Cornelius House, because no service user came to any harm.

(c) The appellant subsequently showed a lack of openness about the matter with her current employer, university and the GSCC.

(d) The committee found that the appellant's action in tippexing out the reference to her instant dismissal in her application form for the GSCC was dishonest.

(e) The committee had not heard anything from the appellant to show that she had any insight, understanding or had reflected upon her actions."

10. In her appeal to the Tribunal the appellant stated that she was a person of good character and good conduct for the purpose of registration. Further that there was ample evidence to show that the incident of the fire upon which the decision was made was not in any way her fault She acknowledged that the tippexing out of information in her application form to the GSCC was a mistake and a misjudgement on her part, but that she had relied on advice from her sister. The appellant acknowledged a failure to disclose the outcome of her disciplinary hearing to her employer and her university immediately, but stated that she had explained fully to them about their being disciplinary proceedings.
11. The GSCC in their response to the appeal submitted that the Registration Committee having not been satisfied as to the appellant's good character and conduct was obliged to refuse to register her. The burden of proof lay with the appellant to show that she met the statutory test for registration.

Facts

12. Mr D Patel in his witness statement dated 18^th September 2007 stated that up until the 5^th September 2007 he and a business partner owned a company called Eldra Caru Limited which in turn owned B H, a care home specialising in care for the elderly and the infirm. In August 2005 Ms LS had been the registered manager of the home. The appellant had been a night care assistant.
13. On the evening of the 2^nd August through to the morning of the 3^rd August 2005, two staff members namely CT and WM were on night duty. A fire had occurred at the home in the early hours of the 3^rd August 2005 with a subsequent investigation revealing that a service user residing on the first floor of the home had accidentally placed some tissues on a freestanding bedside lamp in her room. The lamp had heated the tissues causing smoke to fill the service user's room, which had then triggered the smoke detector causing the fire alarm to go off.
14. The Tribunal were shown a copy of a fire report dated 3^rd August 2005 completed by the local fire brigade. The report indicated that the fire had been discovered by an automatic system and the brigade had been called by an individual, at 2.18am and had arrived at the scene at 2.27am and had the fire under control by 2.55am. The report also indicated that the estimated interval from ignition to discovery was under 5 minutes and that from discovery to first call was also under 5 minutes.
15. A further report was prepared by the West Sussex Fire and Rescue Service following a post incident inspection of the premises and sent to BH on the 4^th August 2005. The report was signed by Mr Innocent the investigating officer. The report contained the following comment: -

"Staff training is ongoing according to available records. However, all staff must be fully aware of procedures to be adopted in the event of the fire alarm activating.

It was indicated by staff of the time of the above incident that only the ground floor had been searched. However there was obvious smoke evident on the first floor.

"On Duty" staff must remain vigilant at all times."

16. Mr Patel his witness statement stated that on the 16^th August 2005 he convened a disciplinary hearing in relation to the incident at the home on the 3^rd August and that the appellant had attended the meeting. Also in attendance were Ms L S and Mr Patel's business partner Mr Dinesh Patel. The Tribunal were shown unsigned minutes of the meeting on the 16^th August 2005. Mr Patel in his statement stated that the appellant had been shown a copy of the fire officer's report and also an article which had appeared in the Worthing Herald dated 3^rd August 2005.

The Tribunal were shown a copy of the article from the Worthing Herald which included the following paragraph: -

"A fire service spokesman said the incident was potentially life threatening. He said "people die more from smoke inhalation than anything else. Another few minutes and she wouldn't have made it."

17. At the disciplinary meeting Mr Patel said that the appellant had been asked to explain why she had not called the on duty manager when the fire had broken out. The appellant was said to have told the meeting that she had evaluated the situation and decided it was not worth calling the on call manager and that she had resolved to explain the incident to the assistant manager in the morning.

The appellant was also questioned as to why she had not attended fire training at B H on the 26^th July 2005. Ms LS had said that the appellant did have a valid excuse for not attending the fire training.

It was also put to the appellant that the fire procedure in operation at the home was that carers must check all rooms in the home both upstairs and on the ground floor when the fire alarm went off. Mr Patel stated that he had explained to the appellant that given her lack of action on the night of the incident the Commission for Social Care Inspection would be making an unannounced visit to the home. Mr Patel was concerned that the incident could lead to the home having enforcement action taken out against it. Accordingly as he considered that the appellant had been negligent in her duty of care to the service users, particularly in not advising the on call manager, then it would not be appropriate to allow the appellant to continue to work at the home, he went on to state: -

"I considered that CT's actions, along with her colleagues, had been that of gross misconduct and there was no alternative but to release CT from her duties with immediate effect."

Mr Patel stated in his witness statement that the appellant was given the minutes of the meeting and her right to appeal. A dismissal letter should have been sent to the appellant, but Mr Patel had no record of that.

18. Amongst the exhibits to Mr Patel's witness statement was a document headed "Fire Action Plan and Drill Record" and under the sub-heading "Correct Procedure For Calling the Fire Brigade: -

The following was stated: -

"Proceed to fire control panel closing doors en route to ascertain the zone/detector actuated.

Ascertain danger zone/detector showing (at night unlock main entrance for the fire brigade).

As a team (two or more) carryout a search use the door checking procedure. Note: -Initially adopt a "stay put" procedure. DO NOT enter a smoke logged area.

If a fire is discovered where and if possible evacuate those in immediate risk laterally to behind two fire doors.

Continue evacuation vertically (staircases) where necessary.

Note: - DO NOT use a lift

Brief the fire and rescue service on their arrival

Note: an up- to- date roll call of all occupants should always be available.

In addition all staff should have knowledge of the following: -

Portable fire fighting equipment

Structure and electronic fire plan of the building."

19. The appellant in an e-mail to the GSCC dated 14^th December 2005 set out what she said had occurred on the night of the fire, including the following: -

"I was working on a night duty in an EMI residential home of 21 residents. There were only 2 of us on duty with no senior carers. At around 1.30-1.45am we had done one of our night rounds and nothing seemed to have been amiss with the residents or the home. At around 2.20 the fire alarm went off and the first task we did was call the fire brigade. After that we went to the control panel to try and locate where the fire was originating.

The control panel didn't just indicate upstairs or downstairs, we had PHASE 1 having some rooms upstairs and interlocking with other rooms downstairs, therefore we decided to first check all rooms downstairs which were 7 bedrooms and 3 toilets, kitchen, dining, lounge, passageway, laundry and staffroom. As we were finishing checking the rooms downstairs, which were all clear, the fire brigade arrived, within 5 minutes of the phone call, hence us opening the door together since we didn't think lone working was advisable.

Unfortunately, we couldn't be much help to the fire brigade of where the dictator was coming from as we hadn't yet reached upstairs where the actual smoke dictator was lighting but we told them "downstairs was clear". "

20. At the hearing the appellant said that there were fire doors to each service user's room and in addition there were passage way fire doors which were on automatic closure, in that they would close automatically on an alarm going off. When the appellant had done her round at about 1.45 am she had opened the service user's doors to check on the service user and then closed them afterwards

Although in an e-mail to the GSCC dated the 6^th March 2007 addressed to Chris Lynch the appellant had stated that after the fire alarm had rung she had used her initiative to check the downstairs rooms closing fire doors and doing a head count to ensure that all the residents were in their rooms.

21. In relation to the control panel, the appellant told the Tribunal that the definition on the panel of upstairs and downstairs rooms was not clear, some of the downstairs room numbers were interlocking with upstairs and she could not understand when looking at the control panel on the night of the fire, which room was in which zone. She was unable to tell from the control panel that the fire was upstairs. The appellant said that the fire alarm had gone off on occasions before the 3^rd August 2005, that she had looked at the panel and was aware that the information given was ambiguous, in particular as to the source of a fire. She had not felt sufficiently empowered to raise the matter with the management although she believed that they were aware of the difficulties with the panel.
22. The appellant said that on the night of the fire as she and WM had been unable to ascertain from the control panel precisely where the fire was located, they had followed what they believed to be the fire procedure by searching all of the rooms. The appellant said that she could smell smoke, but she could not tell precisely where it was coming from. A decision was taken to search the ground floor with WM, as they finished their downstairs search the fire brigade arrived, having been called by the appellant. The appellant and WM were able to tell the fire brigade that they had searched downstairs and that the fire was not there.
23. The appellant said that she had been told by her colleague WM that during the course of the incident she had tried to call the on duty manager, but the manager's telephone had been switched off. The appellant said that she had thought about telephoning the on duty manager herself, but on previous occasions relating to different matters when the on call duty manager had been contacted during the night, the response had been that they did not want to be disturbed and that a call should be made to the duty manager the following morning. The appellant had therefore decided to wait until the next day before contacting the manager.
24. As part of their investigation into the appellant's application for registration the GSCC's case worker dealing with the matter, Ms Chris Lynch had telephoned Mr Innocent of the West Sussex Fire Brigade on the 20^th March 2006, the purpose of the call to obtain a fire report of the 3^rd August 2005 incident. A telephone note of Ms Lynch's conversation with Mr Innocent was included within the Tribunal papers. Mr Innocent is recorded by Ms Lynch as telling her that: -

"The call to fire brigade had not been made properly. The applicant and her colleague did not appear to have read the fire regulations and had made no attempt to go upstairs which was smoke logged. He suspected, but had not proof, that the applicant and her colleague had been sleeping as he didn't see how it was possible for such a lot of smoke to have developed upstairs if they had done the check of the residents in the timescale they said they had and made the checks 20 minutes beforehand. The resident had stuffed tissues down the bedside lamp on top of a light bulb and these had slowly smoked and then burst into flames. If the check had been done, Mr Innocent believed that this should have been obvious."

25. The appellant in the e-mail to GSCC of the 14^th December 2005 made reference to the condition of the resident who had been in the room where the fire had started. The appellant wrote as follows: -

"Anyway, the resident came out of the room smiling and walking unaided and even talking cheerfully. When the ambulance got called for her by the brigade, they gave her the all clear. There was nothing wrong with her and her breathing and pulse were just fine after 20 minutes of being rescued."

The appellant made similar comments in subsequent communications to the GSCC.

In her statement to the Tribunal dated the 12^th September 2007 the appellant stated at paragraph 8: -

"In terms of my understanding of the risks involved, undoubtedly Mrs DN was in grave danger as she would have inhaled a lot of smoke and potentially died. The risk was also extended to other clients and staff as well as damage to property. From looking at the case notes, I may have written my statements to seem as I did not grasp the level of risk involved to the client due to my employers statement that care standards were on their case and that the client came to no harm. I did understand the level of risk involved but those statements are included to argue against the assumptions that were brought forward that the client may have been left in a smoke filled room for up to two hours."

26. It was conceded by Mr Ruck Keene on behalf of the GSCC, that as had been acknowledged at the Registration Committee meeting, there was no evidence that the appellant had intended her actions to put at risk any service users and that she had sincerely believed that she had done all that she could on the night of the fire. It was also the case that her employer must bear a measure of responsibility for what happened on the night of the fire for example by failing to ensure that the appellant had received all of her compulsory fire training.
27. The Tribunal were shown a witness statement from Ms WM dated 13^th September 2007. In that statement WM stated as follows: -

"We went to check the fire panel which was confusing to understand because some of the rooms it had indicated upstairs were also indicated downstairs, therefore when Ms CT stated she could smell smoke downstairs, we felt we had to do a thorough check downstairs to ensure clients downstairs were not in extreme danger of an explosion, as both the kitchen and laundry room were downstairs."

Later in the same statement WM said: -

"I know for a fact that I called the person on call but found her mobile switched off."

28. Attached to Mr Patel's witness statement were B H's fire action-staff training records for the 26^th July 2005 which indicated that the appellant had not attended. The appellant accepted that she had not been present, but stated that this was due to the fact that she had college engagements and that this had been accepted by Ms LS the manager at B H, as the appellant had done her yearly fire training with her other employer namely Cornelius House, as part of her induction programme. The appellant told the Tribunal that as well as having undergone the induction training at Cornelius House she had attended fire training every 6 months and in the last 12 months she had attended training every quarter.

Mr Patel in his witness statement had stated at paragraph 14: -

"CT did have a valid excuse for not attending the fire training, (not sure what her reason was for not attending the training.) Ms LS told CT that in her view she had the confidence, ability and awareness to know how to handle a situation such as that of the 3^rd August but that she had let herself down in dealing with it. In stating this, Ms LS relied on the fact that CT was studying for NVQ Level 3, which she had almost completed but already completed NVQ Level 2 in any event. "

29. Mr Ruck Keene acknowledged that the appellant's employers had accepted her reasons for not attending the fire training on the 26^th July 2005, but that in the view of the GSCC these reasons were not adequate.
30. The appellant told the Tribunal that when she had called B H in the days after the fire she was told that she had been suspended. Mr Patel had told her about a hearing on the 16^th August 2005, but other than knowing the hearing was to discuss the fire the appellant had been given no further information.
31. The notes of the meeting on the 16^th August 2005 produced by B H start by stating: -

"Mr Divya Patel introduced the hearing and explained that CT had the right for an independent witness to sit in on the meeting. CT declined to have anyone else present."

Later in the notes of the meeting it is recorded as follows: -

"Mr Divya Patel said that because of the "gross misconduct" shown by the actions of CT there was no alternative but to release CT of her duties with immediate effect."

32. In an e-mail to Ms Chris Lynch dated 19^th September 2006 the appellant wrote: -

"As I stated on that letter BH failed to provide me with a dismissal letter even until now, therefore legally I left on amicable terms with them."

The appellant accepted at the Tribunal hearing that it had been a misstatement on her part to say that she had left B H "amicably". She went on to say that she had known at the end of the hearing that she had been dismissed. However, she had never received a copy of the notes of the meeting nor any dismissal letter, despite several telephone calls and therefore she had considered that she had not been technically dismissed.

33. The appellant's application form to the GSCC to be registered as a student social worker is dated the 26^th September 2005. Section 6 of the form deals with "disciplinary record" where applicants are asked to disclose whether there is a current disciplinary finding against them and/or whether they are currently the subject of a disciplinary investigation. It was clear on the face of the form that an answer given by the appellant had been tippexed out.

It was acknowledged on behalf of the GSCC by Mr Ruck Keene that CT had not attempted to conceal the fact that she had tippexed out the information and that she had given an explanation as to why this had occurred when she was first contacted by the case worker following receipt by the GSCC of the form.

34. The Tribunal were shown a telephone note prepared by Chris Lynch dated 13^th December 2005 said to be a note of a conversation between Chris Lynch and the appellant dated 13^th December 2005. The relevant section reading as follows: -

"Call to student to request an explanation about her tippexing out the disciplinary declaration on page 6 of her application form. Student said her sister had told her that she did not need to disclose that she had been sacked."

35. In a written statement to the Registration Committee dated 17^th February 2007 the appellant stated at paragraph 7 as follows: -

"I wish to acknowledge that tippexing the application form was an unthought out action. I am remorseful about this. This is due to the reasons I have stated before that there was an absence of a disciplinary letter which I and my sister discussed. We felt that in the absence of a dismissal letter, I had not been dismissed. I also stress that she did not in anyway force me to tippex on the application form. Although it may appear an unsound judgement, I used the latter rationale my sister gave me."

In oral evidence to the Tribunal the appellant acknowledged that it had been a mistake to tippex out the information.

36. It was also acknowledged by the applicant that the application form to the GSCC contained a declaration which she had signed, that all of the information in the form was correct to the best of her knowledge and her belief, it was also accepted by the applicant that she had stated on the application form that she had agreed with the statement that she "had read and understood and agreed to comply with the GSCC's Code of Practice for social workers". She said she had read the Code of Practice and was aware of what it said.

The appellant's attention at the hearing was drawn to paragraph 2.1 of the Code of Practice which states that a social worker needs to be "honest and trustworthy" and also to section 5.8 which states that a social worker must not, "behave in a way, in work or outside work which would call into question your suitability to work in social care services."

The appellant said that at the time of completing the application form she had just started her social work course at university and that she now understood far more about the meaning and understanding of the Code of Practice than she had then.

37. On the 12^th July 2007 a letter was written concerning the appellant by the head of counselling at the University of Chichester, Janet Aldridge. In her letter Ms Aldridge stated as follows: -

"I am writing to verify that CT has been seeing me from March 23^rd 2006 and finished sessions on 11^th July. She came in distress concerning her failed application to the GSCC and we discussed what had happened in that process, including the situation which led to her dismissal following a fire in her place of employment.

She now realises that she should have included this information in her application, but in mitigation, the advice from her older sister needs to be taken in context, that this sister, was at the time her closest relative in the UK, and in families from CT's ethnic background, older sisters have considerably more authority than in Anglo culture."

38. The appellant told the Tribunal that she had applied for a place at Chichester University around March 2005. She had received a package of papers from the University which had included documents regarding criminal record declarations and also a covering letter listing the documents which were included in the bundle.

The Tribunal were not shown a copy of the appellant's application form or copies of the documents that had been enclosed, but instead documents which were said to be similar to those sent to the appellant were produced. The form relating to criminal record bureau disclosure contained the following statement: -

"In order to register with the General Social Care Council as a student social worker, you will also need to have a satisfactory disciplinary record.

If there is a current disciplinary finding against you, or if you are the subject of a current disciplinary investigation, by an employer, educational establishment or other organisation, you should write to the university's admission officer as described above."

And later in the same form: -

"It is your responsibility to inform the university of any change in any of the circumstances mentioned above whilst a social work student."

39. It was said by the appellant that she had not considered at the time of her dismissal that she was under any obligation to disclose this to Chichester University as they had not asked her. If she had been asked she would have disclosed it, she had for example disclosed details about her health. She now understood where the obligation lay in terms of disclosing information.

The Tribunal were told by the applicant that on being advised by Chris Lynch on the 13^th December 2005 that she should tell the university immediately of her dismissal, she had explained to the university about her disciplinary matters but she acknowledged a failure on her part to disclose the full circumstances.

The Tribunal were shown a note of an interview between the appellant and Gill Butler (programme coordinator) and Elizabeth Kemp (admissions tutor) from Chichester University dated 17^th January 2006. The note indicated that the appellant had been asked to see staff at Chichester University by the GSCC as the appellant had disclosed that she had a disciplinary offence. Ms Butler and Ms Kemp then proceeded to discuss with the appellant what had happened in relation to the fire. The appellant is recorded as saying that she felt that she had been unfairly blamed and that both she and her colleague had been sacked as a result of the fire officers concerns. The tutor's interviewing the appellant noted that: -

"We agree from this interview that we are satisfied that CT recognises where she went wrong, she is distressed by what happened and has clearly learned from the situation. We agree that we will confirm our view with the GSCC case worker, Chris Lynch."

40. On the 14^th February 2007 Ms Chris Lynch spoke on the telephone with the applicant and Ms Lynch's note of that telephone conversation was produced to the Tribunal. The note included the following: -

"Confirmed she had received a letter from GSCC and is in the process of responding. Is working at Cornelius House doing 18 hours during the day.. Matron is Pam Venus. Asked student if she had informed her employer that she had been dismissed from B H and the reason for that. She said she had not. I asked why and she said she had started work at Cornelius House prior to BH and only did one night shift there. She had not thought she needed to do this. I suggested that as her actions had put the life of the service users at risk, she needed to inform her current employer so that they could ensure that residents were protected and the student received all the training and support she needed."

41. At the Registration Committee hearing on the 12^th February 2007 the appellant was asked what she had done after the conversation with Chris Lynch on the 14^th February 2006. In particular the appellant was asked what she had said to Ms Venus at Cornelius House, her response was as follows: -

"The exact words, I am not sure whether the conversation that I had with Ms Venus was that there was an investigation with the GSCC were having towards me over a dismissal which happened at B H, my formal employment, and that investigation, whether I could actually be allowed on to the Social Care Council or not. So that is what I said, an investigation was pending. I also told her the reason for the dismissal…"

In her witness statement dated 12^th September 2007 the appellant also indicated that she had made a full disclosure to her manager at Cornelius House about the fire incident after discussions with Chris Lynch.

42. On the 15^th December 2006 Chris Lynch spoke to Pam Venus, the manager of Cornelius House on the telephone and a written note of what was said to have been said in the conversation prepared by Ms Lynch and was produced to the Tribunal. The relevant part of the note reads as follows: -

"Telephone call to Pam Venus, manager of Cornelius House as I need to confirm and clarify the contents of the character reference she had provided. I asked Ms Venus about what the student had explained to her about why she needed the reference. Ms Venus said it was to do with a fire at B H where someone had nearly died and there was an ongoing investigation as to how they had handled that. I asked whether CT had informed her of her dismissal from B H. Ms Venus said she was not made aware of this."

43. The appellant told the Tribunal that after she had been dismissed from B H she had discussed this with colleagues at Cornelius House who she trusted. After being advised by Chris Lynch, the appellant said that she had fully disclosed details of the fire to Ms Venus and the fact that she had been dismissed. The appellant said that she could not now be sure that Ms Venus would have fully understood what she had told her. Further that Ms Venus was wrong when she had said to Chris Lynch that the appellant had not told her that she had been dismissed, the appellant had said that she had been dismissed, but she had not received a dismissal letter.

The appellant referred to a document that had been prepared by her and signed by Ms Venus as being a correct version of events, that document being dated 22^nd May 2007. The document was said to be an account of what the appellant had told Ms Venus and Ms Venus had been asked to confirm the contents of the document and add any comments. Ms Venus had so confirmed and added the comment: -

"I was not informed of a dismissal letter and asking CT, she said she did not get one."

44. On the 30^th August 2007 Ms Venus signed a witness statement for use in these proceedings. At paragraph 7 Ms Venus referred to her telephone conversation with Chris Lynch on the 15^th September 2006 and stated: -

"I advised Ms Lynch that I had been told by CT that a fire incident had taken place at B H where someone had nearly died. Because of this incident, there was an ongoing investigation as to how CT and her colleague, who were both on duty on the evening of the incident had handled the incident. Ms Lynch then asked me whether CT had informed me of her dismissal from B H following the incident. I was surprised to hear that CT was dismissed from B H as she had told me that the investigation was ongoing."

Later in her statement at paragraph 9 Ms Venus stated: -

"Following my discussion with Ms Lynch, I agreed to speak to CT. I interviewed CT on the 16^th September 2006 after my discussion with Ms Lynch. CT told me that she had not received a dismissal letter and that this was why she had not said anything to me about it. I had a meeting with Mr Kellas and it was decided that CT would remain in our employment."

45. The appellant told the Tribunal that she remained in the employment of Cornelius House on a part time basis and was also a student at Chichester University in the second year of a Childhood, Youth and Family course. A number of documents were produced from Chichester University including a social workers assessment report by Anne Davy dated 28^th June 2006. The recommendations of Ms Davy regarding the appellant being as follows: -

"My observations of the student lead me to believe she is ready and safe to undertake professional assessed practice learning. She is very keen to learn all aspects of the role and would benefit from being placed with a Practice Assessor and spend quality time with her."

There was also a report from her tutor Sam Baeza dated 11^th July 2006 the opening sentence of the report being: -

"CT has a good understanding of the social work role particularly in respect of her placement within a learning disabled setting."

46. The appellant produced a number of supporting character references from Ms Venus, Samuel Baeza, Ms LS (dated 19^th April 2005) and from a Debbie Hughes.
47. A document was produced by the appellant dated 12^th July 2007 indicating that the she had successfully completed a fire warden training course, Ms Venus in her character reference dated 18^th June 2007 stated that: -

"I have always found CT to be kind and diligent in her care of the residents. She follows the policies and procedures of the home."

In her witness statement dated 12^th September 2007 at paragraph 8 the appellant stated that: -

"I apologise for the danger Mrs DN was in and have come to realise that when I worked at BH, I was not as skilled as I thought I was. I did everything the best as I could. On reflection, I now see the areas I could have done better. I have gone out to better myself. I have returned to school to be a better practitioner and have undertaken extra in-house training courses in health and safety which are manual handling, first aid, infection control and most importantly fire training."

In oral evidence the appellant told the Tribunal that she had learnt from her experiences at B H and from the submission of her application to the GSCC for registration. She knew she needed to be honest and that disclosure was important and asking appropriate people for advice.

The Law

48. Section 58 (1) of the Care Standards Act 2000 provides that the GSCC may only grant an application for registration on the social care register if it is satisfied that an applicant is of good character and is physically and mentally fit to perform relevant work and satisfies the conditions set out in Section 58 (2) and (3)Section 58 (3) requires the applicant to satisfy any requirements as to conduct and competence which the GSCC may by rules impose. The relevant rules being the General Social Care (Registration) Rules 2005, in the context of this case the important rule being rule 4 (10) (A). That rule reads as follows: -

"4 (10) (a)

It is satisfied as to the applicant's good character and conduct;…"

49. We accept the submission made by Mr Ruck Keene on behalf of the GSCC, that the onus is on the appellant to satisfy the Tribunal that she is of good character and conduct. The authority for this proposition being Jones v Commission for Social Care Inspection [2005] 1 WLR2461. It was also accepted by Mr Ruck Keene that it is the appellant's character and conduct as at the date of the hearing that the Tribunal should consider.

Section 68 (2) of the Act states that the Tribunal may confirm the decision of the GSCC or direct that it shall not have effect.

Conclusions

50. In considering the appellant's character and conduct we have looked at past events and the appellants role in those events, her insight into those events and how taken together they impact on her character and conduct as at the date of the Tribunal hearing.
51. We considered in particular the fire at B H on the 3^rd August 2005, the appellant's subsequent dismissal from her employment with B H and the disclosure of information to the GSCC, Chichester University and her employers at Cornelius House.
52. It was accepted by the appellant that she had missed the July fire training at B H. However, we do not consider that this is indicative of the appellant displaying a casual attitude to fire safety or the need for training. We accept the appellant's evidence that she had attended previous fire training both at B H and Cornelius House and we also note that since the fire she has undertaken further training both at Cornelius House and also it would appear on her own initiative by having obtained a fire warden certificate. We also take into account the fact that the manager at B H, Ms L S, accepted the reason given by the appellant for not being able to attend the July 2005 fire training, as being valid. This is confirmed by Mr Patel in his witness statement.
53. As far as the fire itself is concerned, a number of criticisms were made of the appellant's conduct on the night of the fire. These related in particular to the fire doors, the control panel, not checking upstairs once the fire alarm had sounded and not calling the on-duty manager.

The evidence concerning the fire doors was a little confusing in the sense that there appears to have been two types of fire doors at B H. There were fire doors into each of the service user's rooms, which the appellant said she had opened when she had gone around the home at about 1.45am to check on the service users and then shut the doors after her. Once the fire alarm had gone off she and her colleague had searched the ground floor, again the fire doors into the service user's rooms had been opened in the search for the location of the fire and then closed. There was however, also a different type of fire door in the corridors. At one point we were told by the appellant that these were automatic doors which closed when the fire alarm was sounded so that even if they had been left open they would have closed automatically.

The appellant refers in her e-mail of the 6^th March 2006 to checking downstairs rooms "closing fire doors" and doing a head count to ensure all residents were in their rooms. We take that to be the fire doors into the individual service user's rooms. We do not consider, therefore, based on this evidence, that she behaved inappropriately in relation to the fire doors.

54. In relation to the control panel the appellant and her colleague Ms WM do appear to have had problems in being able to ascertain from the information provided, precisely where the fire had broken out. We are unclear as to whether or not there was a fault in relation to the control panel or whether it was simply confusing or inadequate in being able to identify the area of the home where the fire had started. It does however appear from the appellant's evidence that she was aware of a problem with the control panel prior to the 3^rd August 2005 and we consider to that extent she can be criticised for not having mentioned it to the manager of the home. However, it should also be stated that if there was a problem, regular fire training should have identified such a problem to the management and they themselves should have taken in hand the necessary repairs or improvements to the system to make it more accurate.
55. It was suggested that the appellant and WM should have checked both the downstairs and upstairs of the building once they were aware of the fire alarm. We note however from the fire action plan and drill records exhibited to Mr Patel's statement that when a fire was discovered one of the actions that staff were required to take was as follows: -

"As a team (2 or more) carryout a search use the door checking procedure."

It therefore appears to us that the appellant and WM were acting in accordance with this procedure. Moreover as they had not been able to identify from the control panel precisely where the fire had started and they could smell smoke, we cannot see anything unreasonable with them starting their search on the ground floor. In addition a call had been made to the fire brigade who arrived promptly and were able to be told that the ground floor had already been searched.

56. It was accepted by the appellant that she had not contacted the on duty manager on the night of the fire. The reason given was that she had been told by her colleague WM that she had called the manager, but had received no response and that on previous occasions staff had been told not to contact the on duty manager during the night time. The appellant's version of the events was corroborated by WM in her witness statement. We do however take into account the fact that Ms WM did not appear in front of us and accordingly there was no opportunity to test her evidence which does reduce the weight that we can place on her statement.

Mr Patel in his statement records that the appellant had said at the disciplinary meeting that she had evaluated the situation on the night of the fire and decided that it was not worth calling the on call duty manager. The appellant's evidence does appear to be consistent throughout on this point and we accept that given the appellant's previous experiences with contacting on duty managers, that it was not unreasonable for her to assume that she would either not be able to speak to the on duty manager or would have been told that the matter could wait until the following morning.

57. It is contended that the appellant's conduct on the night of the fire placed a service user's life at risk and that the appellant had little subsequent insight into the fire and the risk to service users. The seriousness of the incident was in part said to have been established by the comments in an article in "Worthing Herald" newspaper displayed on its website on the 3^rd August 2005, however, the comments that the service user was minutes away from death is an unattributed comment to "a fire service spokesman" and as such we placed little weight upon it. It is however said that this is supported by a conversation that Chris Lynch had with the fire officer, Mr C Innocent on the 20^th March 2006. Neither Chris Lynch or Mr Innocent provided signed witness statements nor were either called to give evidence in front of us. We also take into account that the conversation had taken place several months after the incident. We therefore consider that the fire report prepared on the day of the incident is likely to give a more accurate portrayal of what had occurred. That gives an estimated time from the ignition of the fire to its discovery being under 5 minutes and from discovery to first call also under 5 minutes. The brigade were called at 2.18 and arrived at 2.27am and the fire was under control at 2.55am. This is not to say that the matter was not serious nor that it was not traumatic for the service user concerned, but we consider that it does need to be seen in the context of the nature of the fire and the response by the fire brigade.

The submissions made to us on behalf of the GSCC indicated that the GSCC accepted that the appellant had no intention of putting any service user's lives at risk on the night of the fire and that she had done what she thought was best in the circumstances. As regards the appellant's actions on the night of the fire we consider that in the main she followed the fire procedures in place for the home and that whilst a service user was placed at risk, that risk was not as a direct result of the appellant's actions.

58. There remains an issue however, as to the appellant's insight into the fire and the risk to the service user. It certainly appears from the appellant's e-mails to the GSCC that she had not fully understood the risks to the service users or the distress and possible effect on their health that a fire such as the one that occurred on the 3^rd August could have caused. The appellant for example in her email of the 6^th March 2006 made the comment: -

"I would also like to highlight that Ms D came to no harm as she was able to walk out of her room, was cheerful and engaging in conversation."

However, as time has passed the appellant's attitude also appears to have changed. In her most recent statement dated the 12^th September 2007 the appellant acknowledges that Ms D was in grave danger as she had inhaled a lot of smoke and potentially could have died. We had the opportunity to hear the appellant giving evidence and we take the view that the appellant's most recent comments on the risk to service users is her genuine view as to how she now sees the situation.

59. As regards the appellant's dismissal by B H, we have some concerns about the way in which the disciplinary meeting was dealt with by the management of B H, for example it would appear that the appellant was not given sufficient information prior to the meeting as to the precise nature of the meeting nor given advanced notice that she could take a representative with her to the meeting. Nevertheless, Mr Patel's statement makes it clear that by the end of the meeting the appellant had been told that her services were no longer required and that she had been dismissed. The appellant herself told us that she had conveyed this to work colleagues at Cornelius House and also to her sister and the Citizens Advice Bureau. There is therefore no doubt in our minds that the appellant was well aware at the end of the meeting that she had been dismissed. The fact that she had not received notice of the dismissal in writing does not make it credible to suggest the appellant may genuinely have thought that there was a doubt as to whether or not she had actually been dismissed.
60. There is also no doubt that the appellant did not complete the application form for registration to the GSCC correctly. Whilst the questions in section 5 under the heading "Disciplinary record" could perhaps be clearer, nevertheless the appellant must have been aware that there was a disciplinary finding against her. Even if we accept that she was advised to remove any reference to her dismissal from B H by her sister and we note that, the sister did not provide a witness statement or give evidence before us, the appellant should have known that such advice was at the very least questionable and that if the appellant herself had any doubts about what should have been included then she should have contacted the GSCC.

It was suggested by Janet Aldridge, the head of counselling at the University of Chichester, that there may have been cultural reasons why the appellant felt the need to follow her older sister's advice. We find this a difficult conclusion to reach in the absence of any evidence from the appellant's sister herself.

We do take into account the acceptance by the GSCC that the appellant had not deliberately set out to deceive them in altering her application form. Indeed the tippexing out of information was so blatant that it must have been obvious to the appellant that this would raise questions in the minds of anyone at the GSCC processing the application form.

61. The question then arises as to the way in which the appellant disclosed her dismissal and the surrounding circumstances to other parties, in particular the University of Chichester and her employer at Cornelius House.

As regards the University of Chichester the appellant told the Tribunal that she had applied for a place at the university in around March 2005 which would clearly pre date the date of the fire. Although the Tribunal were not shown copies of the documents sent by Chichester to the appellant at the time of her application, we were shown sample letters and enclosures. The appellant acknowledged that she had received a similar covering letter to the one produced to the Tribunal, which had enclosed information regarding criminal record checks. Those documents together with the Code of Practice which had been supplied to the appellant with her application form to the GSCC were said to be sufficient to have put the appellant on notice that she was under an obligation to disclose the fact of her dismissal to the university immediately after it had happened. As far as the Code of Practice was concerned we are not convinced that the paragraphs to which our attention was drawn, namely 2.1 and 5.8 are such that it would be obvious to a student that it was up to her to tell the university about her dismissal. However if the appellant did receive documents from the University of Chichester similar to the ones that were produced to the Tribunal, those do make it clear that not only should a current disciplinary finding be disclosed to the university, but that it is the students' responsibility to inform the university of any change in their circumstances whilst a social work student.

However, we are not persuaded that the appellant sought to deliberately withhold information from the university, she had after all informed them of her health situation. The university themselves through Gill Butler took the view that as the appellant had not been asked about her disciplinary record at her admission on to the course that it was not "fair to penalise her now". Ms Butler is also recorded as having told Ms Lynch in a telephone call on the 23^rd January 2006 that she felt that the appellant "had learned from the experience and she needed to be more vigilant."

62. In relation to Cornelius House the appellant now accepts that she should have informed Cornelius House of her dismissal, given that the well being of a service user might be put at risk and that Cornelius House should have had an opportunity to evaluate her suitability and fire training. There is also an issue concerning whether or not the appellant having been told by Chris Lynch to inform Cornelius House of her dismissal did in fact inform Ms Venus. It is clear that there was a conversation between the appellant and Ms Venus regarding the fire at BH. However, there is a differing of views as to whether in this initial conversation the fact of the appellant's dismissal was discussed. We did not have the opportunity of questioning Ms Venus on this, although she did provide a written witness statement. We are prepared to accept that there may have been a genuine misunderstanding. On the balance of probabilities given the position the appellant was taking at the material time that she had not been technically dismissed, it may well have been the case that she did not tell Ms Venus that she had been dismissed as opposed to telling her about the fire.
63. This brings us to the global question as to whether or not we are satisfied that the appellant is of good character and conduct. We have already set out our views in relation to the appellant's conduct in respect of the fire at B H, her subsequent dismissal and the disclosure of that information to the GSCC, University of Chichester and Cornelius House

In terms of the fire itself our criticism would be that the appellant did not in the months immediately after the fire fully appreciate the risks which the service users had been placed at B H as a result of the fire. We accept that over time the appellant has had the benefit of further consideration and advice and as a result has acquired a greater understanding in relation to the risk of service users in such circumstances

As regards the disclosure of her dismissal, it was clearly an error of judgement not to have disclosed this to the GSCC in her application form, but there are mitigating circumstances, we take into account that there was no attempt to deceive the GSCC, the change in the form being obvious and the appellant informing the GSCC of the position immediately on being questioned. The fact of her dismissal should have been disclosed to both the University of Chichester and Cornelius House. In the case of Chichester we do not believe there was a deliberate attempt to conceal this from the university. In relation to Cornelius House we are prepared to accept there was a misunderstanding in relation to how the information was eventually given to Ms Venus.

The crucial question is the impact of all of this on the appellant's present character and conduct. We take into account what the appellant has said and done since her dismissal and since submitting her application for to the GSCC. In particular that she has continued at Chichester University on a degree course, she has undertaken further fire training and the evidence from Cornelius House is that she is a person who follows procedures. She has good reports from the University, from her tutor, from her placement supervisor and in addition a good character reference from her tutor.

More importantly the evidence from the appellant herself as set out in her witness statement in these proceedings and in the evidence given to us at the hearing indicates that she has learnt lessons from what has happened and developed a greater understanding and insight in to the requirements of a being social worker as set out in the Code of Practice. Therefore for all of these reasons we consider that the appellant as at the date of the hearing can now be considered somebody of good character and conduct.

We therefore direct that the GSCC's decision not to register the appellant as a student social worker should have no effect.

Accordingly our unanimous decision is to allow the appeal

ORDER

Appeal allowed

Mr. Stewart Hunter (Nominated Chairman)

Ms. Carole Alford

Mrs. Carol Caporn

Date: 5 November 2007