England and Wales Care Standards Tribunal

SELINA MATSWAIRO

-v-

SECRETARY OF STATE FOR HEALTH

[2007] 0937.PVA

[2007] 0938.PC

Before: Mr. Andrew Lindqvist

Mrs. Pat McLoughlin

Ms. Maxine Harris

Decision

Heard at Loughborough Magistrates' Court on the 3rd August 2007.

The appellant appeared in person, accompanied by her daughter, Miss Patience Matswairo.

The respondent was represented by Mrs. Carine Patry-Hoskin of counsel instructed by Ms. Helen McConnell on behalf of the Treasury Solicitor.

1. Miss Matswairo appealed, by an application dated the 21st February 2007, against the decision of the Secretary of State to include her in the list of persons considered unsuitable to work with vulnerable adults, kept by the Secretary of State pursuant to section 81(1) of the Care Standards Act 2000 ('the PoVA list'). The appeal is brought under section 86(1) of the Act.
2. As a consequence of her inclusion in 'the PoVA list', Miss Matswairo was included in the list of persons considered unsuitable to work with children kept by the Secretary of State under section 1(1) of the Protection of Children Act 1999 ('the PoCA list').
3. From 'the PoCA list' a somewhat intricate trail of delegated legislation leads to automatic inclusion in what is commonly known as 'List 99' – a list of persons subject to a direction, by the Secretary of State under section 142 of the Education Act 2002, that they may not have regular work contact with, or provide education for, children.
4. Although some of the documentation, in particular Miss Matswairo's appeal application referred only to 'the PoVA list', it was agreed at the start of the hearing that the appeal was against her inclusion in all three lists ('the PoVA list', 'the PoCA list' and 'List 99').


 


Interlocutory matters

5. On the 2^nd May 2007 Mr. Simon Oliver directed a preliminary hearing to consider six specified matters. The hearing took place on the 31^st May before the President, who gave directions about documents, witness statements, preparation of a bundle and arrangements for the hearing and directed that the appeals be heard together.
6. No application was made at any stage for any order under regulation 18 or 19 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (restricted reporting and exclusion of the public). The Tribunal considered the matter briefly and decided not to make any such order.

The applicable law

7. Sections 81 of the Care Standards Act 2000 and 1 of the Protection of Children Act 1999 require the Secretary of State to keep lists of persons considered unsuitable to work with vulnerable adults and children respectively. Each statute provides in effectively identical terms a right of appeal against inclusion in those lists. In each case it is provided (by section 86 of the 2000 Act and section 4 of the 1999 Act) that if the Tribunal is not satisfied that the appellant was guilty of misconduct which caused harm or the risk of harm to a vulnerable adult or child and that the appellant is unsuitable to work with vulnerable adults or children, it shall allow the appeal and direct removal from the lists, otherwise it shall dismiss the appeal.
8. Inclusion in 'the PoCA list' automatically brings about inclusion in 'List 99', which is created by section 142 of the Education Act 2002. Subsections (5) and (7) of section 142 give the Secretary of State power to make regulations. The Education (Prohibition from Teaching or Working with Children) Regulations 2003 were made under, inter alia, those powers. Regulation 8(1)(a) provides that if certain conditions are met (conditions A to F), the regulation applies. Conditions A to F are set out in Schedule 2 to the Regulations. Part 1, condition A is that the person is included in the list kept by the Secretary of State under section 1 of the Protection of Children Act 1999 ('the PoCA list'). If the Secretary of State is satisfied that the regulation applies to a person, he must give a direction in respect of that person under section 142, i.e. include that person in 'List 99'.

Background

9. Winthorpe Residential Care Home ('Winthorpe') in Westcotes Drive, Leicester is a home for up to seventeen adults. It has three floors, the ground floor has the living accommodation and rooms for two residents, other residents' rooms are on the first and second floors. Winthorpe is staffed by a manager, Mrs. Patricia Smith, two deputy managers, Mrs. Carol Webster and Miss Joy Hood and care staff who usually work on a three shift rota, breakfast time to early afternoon, early afternoon to late evening and 'the night shift' – late evening to breakfast, though at the time in question the care staff sometimes worked a twelve-hour shift.
10. Two telephones are available to staff and residents. One is the 'home 'phone', which is reserved for emergency use, the other is a pay 'phone which staff and residents may use as required (consistent in the case of staff with the proper performance of their duties). It is a rule that all staff must switch off their mobile 'phones while on duty, but that rule was not widely observed.
11. Miss Matswairo first worked at Winthorpe as an agency worker. In 2003 she applied for employment there. Senior staff knew her and were satisfied as to her work and personality. She was interviewed by Miss Hood and others on the 2^nd May 2003 and started work at Winthorpe as a night care assistant on the 26^th May.
12. At that time the other staff members were Jean Franks and Gina Ford, senior care assistants, Jannife Makombe, day care assistant and Lindah Maposa and Usebia Munyani, night care assistants. If a manager or deputy was not on the premises they could be contacted on the home 'phone; at night a member of the management team or a senior care assistant was on emergency call. Often only one night care assistant would be on duty at night, though more staff would be on duty if the residents' needs demanded it.

The witnesses

13. The Tribunal heard oral evidence from Mrs. Carol Webster, Mrs. Gina Ford, Miss Joy Hood and from the appellant. It is necessary for the Tribunal to record its findings as to the personalities of the witnesses, in particular Mrs. Ford and the appellant, while recognising the perils of attempting to reach any detailed or definite conclusions on the basis of a brief appearance in a formal and artificial environment. However, the Tribunal's general impressions to a degree informed its findings.
14. Mrs. Carol Webster, a deputy manager, struck the Tribunal as brisk and efficient. She gave her evidence clearly and without hesitation. Although neither brusque nor unsympathetic, she might have appeared that way to someone of a sensitive disposition.
15. Mrs. Gina Ford was voluble. She gave her evidence and put her view with vigour and at a rate which suggested to the Tribunal a risk that speed of expression might exceed speed of thought.
16. Miss Joy Hood was a more careful witness. The Tribunal found her to be basically accurate and reliable but not incapable of the occasional lapse. An example is afforded by a memorandum she prepared in October 2003 about improper staff use of the home 'phone. The appellant was thought to be one of the main offenders, but though Miss Hood had other members of staff sign the memorandum, she failed to get the appellant to do so.
17. The appellant, Miss Matswairo, spoke very quietly and quite slowly. It appeared to the Tribunal that, while she was not hesitant or indecisive in forming her opinions, she did not assert herself in advancing them. Perhaps the adjectives 'meek' and 'deferential' are most apt to describe her.

The evidence of Mrs. Carol Webster

18. Mrs. Webster told the Tribunal that she had worked at Winthorpe for twenty-one years. On the morning of the 13^th September 2004 she was due to start her shift at

7 a.m. but arrived early at about 6.45 a.m., as she often did, living only a couple of minutes away. She was surprised to find the back door propped open with a bin and a resident sitting in darkness in the lounge.

19. At first Mrs. Webster thought that Miss Matswairo was upstairs attending to a resident, so she shut the door and began to prepare for her shift. About ten minutes passed and the doorbell rang. Mrs. Webster opened the door to find Miss Matswairo on the doorstep. She asked where she had been and Miss Matswairo told her that she had been to the nearby Spar supermarket to top up her mobile 'phone.
20. Mrs. Webster told Miss Matswairo that that was no excuse for leaving vulnerable residents unattended and recorded the incident on a piece of paper which she asked Miss Matswairo to sign. That document appears at page 98 of the bundle, the word 'Selina' after 'name of employee briefed' in two places being the appellant's signatures.
21. At about 8.30 Mrs. Ford arrived and Miss Matswairo left. Mrs. Webster reported the incident to Mrs. Smith and to Miss Hood by telephone.
22. Mrs. Webster was present at a disciplinary hearing held on Saturday 25^th September 2004. Also present were Mrs. Smith, Miss Hood, Miss Matswairo with her daughter Patience and later, Mrs. Ford. A note of that hearing (at page 100 of the bundle) records Miss Matswairo as saying that she had not gone to the Spar supermarket but only to her car. The note also records that Miss Matswairo was derogatory to Mrs. Webster. The hearing was adjourned so that the manager of the Spar supermarket could be contacted to see whether CCTV footage would confirm that Miss Matswairo had been there. Miss Matswairo is said to have asked what would happen if she accepted the allegation and agreed that what she had done "was very wrong and she would not mind if we sacked her".
23. Mrs. Webster said that she could remember Miss Matswairo denying at one interview that she had been to the Spar but she could not remember which interview until prompted by the note of the hearing of the 25^th September.
24. A second hearing took place on the 11^th November at which CCTV footage from the Spar was produced and Miss Matswairo admitted that she had gone there to top up her mobile 'phone, leaving the Winthorpe residents unattended.
25. As a result of those hearings, Mrs. Smith wrote to Miss Matswairo on the 8^th December, summarily dismissing her. Miss Matswairo appealed and a hearing date was set for the 23^rd December but she was unable to attend on that date. She said that she would contact Winthorpe with another date but despite a reminder letter on the 17^th January 2005, did not do so. The reminder letter said that if Miss Matswairo had not made contact by the 25^th January the issue would be closed.

The evidence of Mrs. Ford

26. Mrs. Ford said that she had worked at Winthorpe for fourteen years before leaving on the 14^th July 2005 and had been promoted to senior carer after a few years as a carer. As she worked on a day shift and the appellant worked on the night shift, Mrs. Ford saw little of Miss Matswairo except briefly at handovers, but when she did have dealings with her, Mrs. Ford said that she found the appellant to be difficult and argumentative, wanting to do things in her own way rather than as shown or instructed.
27. Mrs. Ford had arrived at Winthorpe on the morning of the 13^th September at about 8.30 a.m. to find Miss Matswairo and Mrs. Webster in the kitchen. Mrs. Webster told her what she had found and asked her to sign a written record, which she did. In fact Mrs. Ford's signature does not appear on the document which is said to be that record (page 98) – an unexplained inconsistency upon which nothing seems to turn.
28. Mrs. Ford was not present at the start of the disciplinary hearing on the 25^th September but joined later and so did not hear Miss Matswairo deny that she had been to the Spar but had been only to her car. Mrs. Ford did not attend the adjourned hearing on the 11^th November.

The evidence of Miss Hood

29. Miss Hood told the Tribunal that she had not been at Winthorpe on the morning of the 13^th September, her shift began later in the day.
30. Miss Hood had prepared the note of the disciplinary hearing of the 25^th September by typing contemporaneously on her laptop. The notes were signed, at her request, by those present (except Miss Patience Matswairo) immediately after the hearing. Miss Hood confirmed her note as accurate, saying that she had checked her laptop notes against a tape recording of the proceedings to ensure that nothing was left out.

31. Like Mrs. Webster, Miss Hood said that Miss Matswairo's attitude left something to be desired, in particular with regard to her apparent hostility to Mrs. Webster. Although Miss Matswairo had spoken of being under personal pressure, she did not expand on it and was not asked about it.

Doors and latches

31. There was evidence about the downstairs layout of Winthorpe from the witnesses who worked there. Although there was no disagreement, the evidence emerged in a somewhat confused manner. It amounted to this. The front door opens into a hall. A latch permits the front door to be opened from inside, but it can be opened from outside only with a key. There is a door from the hall to the front kitchen, similar in that it can be opened from the kitchen, but not without a key from the hall. From the front kitchen there is ready access to the rear kitchen and the back door. There is also access from the front kitchen to a pantry and cloakroom and thus to another external door.

The evidence of Miss Matswairo

32. Miss Matswairo's evidence in chief was largely related to the difficult circumstances in which she said she worked. She saw the reprimand about improper use of the home 'phone as a total ban on her use of either of the home's 'phones. She had gone to the Spar to top up her mobile 'phone because she needed to make an urgent call, had run out of credit and was not allowed to use either 'phone at the home and knew that Mrs. Webster would not let her go to the Spar if she waited until her arrival to ask her. Before going Miss Matswairo had bathed and dressed one of the residents and put him in the lounge downstairs, leaving him in the dark so that he was less likely to move around in her absence. When she got back from the Spar she found the back door locked, Mrs. Webster answered it when she rang the bell, she was angry and shouted at her. Mrs. Webster wrote a short report which Miss Matswairo signed, though not in Mrs. Ford's presence.
33. Miss Matswairo remembers the disciplinary hearing of the 25^th September. She did not say that she had been to her car rather than to the Spar. She remembered listening to the tape and signing the note of the hearing and remembered mention of the CCTV footage from the Spar, though she could not understand why, as she admitted having gone there. The note of the adjourned hearing on the 11^th November was altered at her insistence to remove the words 'to shop' – she had gone to the Spar not to shop but only to top up her mobile 'phone.
34. Miss Matswairo said that she found Mrs. Webster neither helpful nor co-operative, particularly with regard to her complaints of over-work. She referred to one occasion on which Mrs. Webster had had words with her and she noticed that Mrs. Webster smelt of beer. The atmosphere at Winthorpe was, she said, unsupportive. In particular she felt that responsibility for the residents during the night should not be left to just one person. Miss Matswairo, however, accepted that she should not have left the residents unattended. She did refer briefly to some of her personal difficulties as a single mother who had suffered violence at the hands of her ex-husband's new partner.
35. Miss Matswairo raised the question of calling Usabia Munyani to give evidence of one of the altercations between the appellant and Mrs. Webster at which she was present. The Tribunal considered her request with some sympathy as she was unrepresented but decided that as the matter had been raised very late and was not of essential importance to the matters it had to decide, it was not appropriate to adjourn the hearing for Miss Munyani's evidence.

Submissions

a) Misconduct

36. Mrs. Patry-Hoskin accepted that in respect of misconduct the burden of proof was on the Secretary of State, but she suggested that if misconduct were proved the burden shifted to the appellant to show suitability. If that were a submission as to the law, the Tribunal did not agree with the second part; in the Tribunal's view the burden rested on the Secretary of State throughout, as is clear from the wording of section 4(3) of the Protection of Children Act 1999 and section 86(3) of the Care Standards Act 2000, each of which says that the Tribunal shall allow the appeal unless satisfied as to a) misconduct and b) suitability. It may be, however that Mrs. Patry-Hoskin's submission was not directed at the law but was a practical observation that if misconduct were proved, it would, without more evidence (which would almost inevitably have to come from the appellant) be hard to avoid a finding of unsuitability.
37. As to misconduct, Mrs. Patry-Hoskin pointed to the leaving of the residents in particular the one left in the darkened lounge. She submitted that it was compounded by lying, at the first disciplinary hearing, about going to the Spar and admitting it only when confronted by the CCTV evidence and further compounded by attempting to lay blame on the unsupportive culture at Winthorpe. It was a serious error of judgment to leave the residents rather than risk the wrath of Mrs. Webster by asking if she might go to the Spar. If stress were a factor there was a likelihood of similar errors of judgment should stressful circumstances recur in the appellant's life.
38. Miss Matswairo had little to say against a finding of misconduct. She accepted that what she had done was wrong and said that she would never do the same again. Her evidence as to misconduct related almost entirely to what she saw as extenuating circumstances.
39. In the Tribunal's unanimous view, whatever mitigation could be derived from any extenuating circumstances as described by the appellant fell far short of an excuse for her conduct on the morning of the 13^th September 2004. The Tribunal had no doubt that she was guilty of misconduct on that morning.
40. It is plain that to leave a dozen or more vulnerable adults without any supervision at all, even for twenty minutes or so, involves a risk that they will come to harm. Any one or more of those still in bed when Miss Matswairo went out might have needed attention and suffered harm if it were not available. They might have tried to help themselves and come to grief, perhaps on the stairs. The resident left in the darkened lounge (Miss Matswairo suggested with some credibility that that practice was not as unusual at Winthorpe as it ought to have been) might easily have got out through the front door even though he could not have got into the kitchen from the hall. He could have suffered harm outside or found his way into the kitchen through the open back door with unfortunate consequences. The Tribunal had no doubt that Miss Matswairo's misconduct put the residents of Winthorpe on the 13^th September 2004 at risk of harm.
41. Mrs. Patry-Hoskin added to the respondent's case by reference to the exacerbating factors already mentioned and to an incident when Miss Matswairo, accompanying a resident to the BUPA hospital fell asleep when she should have been watching over him. The evidence about that incident was exiguous indeed, the only witness who referred to it was Miss Hood, whose information was second-hand. Miss Matswairo recalled the incident and accepted that she had 'dozed' but at a time when her charge required no attention. The Tribunal felt unable to attach any weight to that incident so far as misconduct was concerned.
42. The evidence about what was said at the disciplinary hearing on the 25^th September was unsatisfactory. On the one hand Mrs. Patry-Hoskin correctly said that there was a clear note, signed by the appellant, of what she had said at the hearing. And why, said Mrs. Patry-Hoskin with considerable force, would the Winthorpe management have gone to the trouble of getting the Spar CCTV footage to prove what was admitted? On the other hand, Miss Matswairo had, on the 13^th September, admitted going to the Spar and signed a statement to that effect. She must have known that there was little point in attempting to deny it on the 25^th.
43. Having heard, in particular the reticent appellant giving evidence and taking into account the number of those present at the disciplinary hearing on the 25^th September, even though Mrs. Ford was not there at the crucial time, the Tribunal had serious doubts about the practicability of making an accurate note of what was said by contemporaneous typing onto a laptop computer. Miss Matswairo is, as one might expect, inclined to see something sinister in the disappearance of the tapes which might have resolved the matter. The Tribunal had no reason to find the loss of the tapes to be anything other than careless, but it was carelessness on the part of the Winthorpe management (probably as she admitted in a letter, Miss Hood). Omnia praesumuntur contra spoilatorem (everything is presumed against a destroyer) is too harsh a stricture for these circumstances, but nonetheless it is appropriate (and only fair to the other party) to examine with care the case of a party who should produce evidence but fails to do so.
44. The Tribunal was thus unable to resolve the dispute about exactly what was said on the 25^th September and unable to find any untruth on the appellant's part which compounded her misconduct as suggested by Mrs. Patry-Hoskin. The excessive use of the telephone and the friction with, in particular, Mrs. Webster, were matters which should have been (and to a degree, were) dealt with internally and domestically. They were not, in the Tribunal's view, matters of misconduct within the scope of either of the statutes in question.
45. Therefore the Tribunal's finding of misconduct by Miss Matswairo was confined to the incident on the 13^th September 2004 in which she left the residents of Winthorpe unattended while she went to the Spar supermarket.

b) Unsuitability

46. One incident of misconduct can suffice to give rise to a finding of unsuitability. But such a finding, as a matter of common sense, demands caution because no career is without its low points and few are wholly without any instances at all of human error. The gravity of the misconduct, the circumstances and, in particular, the probability of repetition are crucial factors.
47. Mrs. Patry-Hoskin correctly pointed out that the gravity of Miss Matswairo's misconduct was such as to justify instant dismissal, a point impliedly recognised by Miss Matswairo in her decision not to prosecute her appeal.
48. It is, however, necessary to look at the context of the misconduct. Miss Matswairo undoubtedly had personal difficulties at the time, there was persisting acrimony from the break-up of her marriage, particularly from her ex-husband's new partner, she was a single mother, struggling to bring up her children and to arrange for their care while she worked at night. She saw herself as banned from using either of the telephones at Winthorpe. Although Miss Hood said that she had imposed no such ban, the Tribunal could readily accept that Miss Matswairo's submissive nature led her to think that Miss Hood's words of reprimand had been spoken with that effect.
49. That finding accords with the Tribunal's view that the clash between the brisk expedition of Mrs. Webster and the loquacious exuberance of Mrs. Ford on the one hand and the quiet reticence of Miss Matswairo on the other, lay at the heart of the difficulties which the appellant experienced at Winthorpe. If Miss Matswairo had been a little more able to express her problems, Mrs. Webster and Mrs. Ford might not have been as unsympathetic as she apprehended. If Mrs. Webster and Miss Hood had been a little more pastoral and pro-active in their staff management, the appellant might have been a more willing and co-operative team member. No doubt each side was inhibited by pressure of work and time. Neither can be held to be seriously at fault for an unfortunate situation.
50. That it was, in large measure, that situation which brought about many of the unsatisfactory aspects of the appellant's time at Winthorpe is indicated by the absence of any evidence of any misconduct or unsuitability at any previous time. On the contrary, the documentary evidence contains a number of diplomas and certificates showing that immediately before (and in one case, during) her time at Winthorpe, Miss Matswairo was pursuing her career as a carer with diligence and enthusiasm. A letter from the agency which had previously employed her indicates that the appellant had satisfied its strict recruitment procedures and Miss Hood says in her statement that those interviewing Miss Matswairo for her job at Winthorpe were "all satisfied with her work and personality".
51. The Tribunal is therefore unanimously unable to find that Miss Matswairo is unsuitable to work with vulnerable adults or with children.
52. Accordingly, although satisfied unanimously that Miss Matswairo was, on the 13^th September 2004, guilty of misconduct which put vulnerable adults at risk of harm, the Tribunal unanimously finds that she is not unsuitable to work with vulnerable adults or with children and unanimously allows her appeal.

Order

The Tribunal directs that the name of Miss Selina Matswairo be removed from the lists kept by the Secretary of State under a) section 81 of the Care Standards Act 2000 and b) under section 1 of the Protection of Children Act 1999. It follows that the Secretary of State's direction under section 142 of the Education Act 2002 must be revoked.

Andrew Lindqvist

Pat McLoughlin

Maxine Harris

30^th August 2007