England and Wales Care Standards Tribunal

Burman v Secretary of State for Health [2007] EWCST 1182(PVA) (03 October 2008)
Schedule Schedule 5 cases: Protection of Vulnerable Adults list - Inclusion on PoVA list

Tracey Burman
- v -
The Secretary of State for Health
Application No. [2007] 1182.PVA 1223.PC
Before: Ms Andrea Rivers (chairman) Ms Sally Derrick Mr Christopher Wakefield
Heard on 23^rd September 2008 at Reed Hall, University of Exeter

Miss Katherine Olley of Counsel appeared on behalf of the Respondent.

The appellant, Tracey Burman, was neither present nor represented.

The Appeal

1. This was an appeal against a decision to place the appellant on the PoVA list, confirmed on 21^st December 2007. The application to appeal was made on the 8^th January 2008.
2. The appeal was set down for two days, beginning on September 22^nd 2008. On that day the appellant did not attend. The tribunal delayed the start of the hearing and attempts were made to contact the appellant by telephone, to see if she was on her way, but without success. The tribunal therefore decided to begin hearing the evidence in her absence, pursuant to rule 20(4) of the Tribunal Regulations which provides that:

if either party fails to attend or be represented at the hearing, the Tribunal may hear and determine the case in that party's absence.

3. It later transpired that the appellant had informed the Tribunal, in a letter dated

21^st September and received after the start of the hearing, that she would not be attending. However, it was clear from her letter that she still objected to the decision to place her name on the list and she did not say that she wished to withdraw her appeal.

Background

4. Between 3^rd March 2003 and 17^th August 2005 the Appellant, Tracey Burman, was employed by Allied Health, a private company, contracted to provide domiciliary services. Between 21^st July 2003 and 20^th December 2004 she worked with KW, an adult service user being cared for by her local Community Mental Health Team. KW suffered from a number of physical and mental health problems which prevented her from leaving her flat and she therefore depended on others to collect her benefits, pay her bills and do her shopping.
5. In April 2004 KB received an unexpected demand to repay a Housing Benefit overpayment of £521.95 and this sum, together with bills for Council Tax and rent, as well as her usual day to day shopping needs, made it an expensive month for her. She asked Mrs Burman to withdraw money from her National Savings and Investment Account (NS&I) to pay the bills, using her account card and PIN number.
6. By December 2004 it had become clear that KW was no longer able to live independently. Initially she was admitted to hospital as a psychiatric inpatient but eventually, on 28^th July 2005, she went to live in a residential home. For some time she had been expressing concerns that she had lost money from an unspecified account. On 27^th September her then CPN, Emma Tucker, visited her to try to sort the problem out and together they looked through back statements from her NS&I account. It emerged that there had been £4,527.28 in the account on 31^st March 2004 but that by 15^th August 2005 only £134.87 remained. According to a statement made by Emma Tucker on 17^th January 2006, KW "appeared shellshocked". She said that the only person with access to her card and PIN was Tracey Burman and that she had authorised her to use them to withdraw money from the account on one occasion only.
7. The matter was reported to the police and following their investigation Mrs Burman was charged with fifteen offences of theft of cash belonging to KW, all relating to withdrawals from her NS&I account.
8. Arrangements were made for a criminal trial at Exeter Crown Court, and because of KW's frail state of health a video link was set up to enable her to give her evidence. However by 7^th July 2007, the day of the trial, her health had further deteriorated and her doctors decided that she would not be well enough to give evidence at all. Accordingly the prosecution decided to offer no evidence and the trial did not proceed. Sadly, KW has since died.

The Law

9. s86(3) of the Care Standards Act 2000 provides that:

If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely –

(a) that the individual was guilty of misconduct…which harmed or placed at risk of harm a vulnerable adult; and

(b) that the individual is unsuitable to work with vulnerable adults,

the Tribunal shall allow the appeal…

10. It is for the respondent to prove their case on balance of probability.
11. In relation to the requirement to consider suitability, counsel for the respondent, Miss Olley, referred us to the case of Angella Mairs v Secretary of State

[2004] 269.PC. where the tribunal had regard to a number of criteria, of which the

following were relevant to the case before us today:

(a) the number of incidents of misconduct

(b) the gravity of that misconduct

(c) the degree of recognition by the applicant that the conduct constituted misconduct

(d) steps taken by the appellant to minimise a recurrence

The Evidence

12. We read and heard evidence from five witnesses, three of whom had worked with KW and been involved in her care. They were: Rawden Johnson, her community support worker between April 2002 and March 2004; Donna Ricketts, her community support worker for a brief period during October and November 2004; and Paul Chrichard, her community psychiatric nurse (CPN) for several years, ending in June 2004. We heard evidence from PS Nicola Seager, who was the officer in charge of the criminal investigation until November 2006 when she left on maternity leave. We also heard evidence from Marie Moody, an employee of Allied Healthcare, although she had no personal knowledge of the circumstances surrounding the allegations and was only able to help us in relation to the employment policies and practices of Allied Healthcare.
13. The written evidence included transcripts of police interviews, most notably two interviews with Mrs Burman, dated 21^st March 2006 and 11^th May 2006, as well as relevant documentation, mostly obtained during the course of the police investigation.
14. In the absence of any oral evidence from Mrs Burman we were wholly reliant on her written statements and the transcripts of the police interviews. Her reasons for appeal on her application form did not deal with the allegations, but relied on the fact that the criminal prosecution had not proceeded and thus, in her view, "all alledged (sic) offences were cleared." Similarly, in her statement in these proceedings she once again failed to respond to the allegations and repeated that she had been cleared of all charges at Exeter Crown Court.
15. Statements from KW's NS&I account showed that there had been seventeen cash withdrawals between 19^th April 2004 and 8^th September 2004. All but four of these were for £300, the maximum sum permitted.
16. There was no suggestion that KW had made the withdrawals herself, or that anyone other than Mrs Burman had done so. Mrs Burman herself accepted this in her police interviews. She said that she had made about five withdrawals, all at KW's request and with KW's permission, and that she had made them all the from KW's local post office in Sidwell Street. She was repeatedly invited to explain what she had bought for KW with the money, and what had happened to the remaining cash after she had made the purchases. She said she had bought clothes and a rug, but conceded that this only accounted for a small proportion of the money withdrawn. She claimed to have returned the rest of the cash to KW and to have recorded all the transactions and filed all the receipts in a log which, we were told, has never been found.
17. Rawden Johnson and Donna Ricketts, the two community support workers, and Paul Chrichard, KW's CPN, all told us that KW was a frugal lady, who rarely spent money on herself. Donna Ricketts described her flat as "liveable but very basic". In her statement she explained that when KW had gone into hospital she had bought clothes and toiletries for her as she did not have "any clothes that fitted her or were suitable." Paul Chrichard described her as, "careful and cautious with money. She hated spending it and was never frivolous". He said that there were no concerns about her judgment or capacity to manage her money and the only help she needed in this respect was of a practical nature as she was not able to get to the post office. Although she suffered from periods of mental instability he told us that her behaviour was characterised by self-neglect and depression, rather than by elated mood, or irresponsible behaviour, such as excessive spending.
18. We were shown a schedule, drawn up by PS Seager, of KW's income and outgoings during 2004. Her monthly income, which was from DSS benefits, was a little over £500 and she needed considerably less than that to pay her bills, so there would have been plenty left over for shopping. The only exception to this was in April, when she had received the bill for £521.95 for overpayment of Housing Benefit, as well as having to pay council tax and rent, so that for that month her outgoings had exceeded her benefit income by £428.89.
19. Both Rawden Johnson and Paul Chrichard recalled that KW would sometimes let her money mount up and then ask them to cash several weeks' worth of benefits. On one occasion she had asked Rawden John to pay £100 into her NS&I account. None of the witnesses who had worked with her had ever been asked to withdraw money from this account.
20. During the course of the police investigation further information had been discovered which was shown to us in the form of various documents:

(i) A police witness statement from an employee of a debt management company, attached to which was a Creditor Summary for Mrs Burman and her husband, dated February 2005, showing joint and individual debts totalling £62,778.96.

(ii) A schedule of withdrawals from KW's NS&I account, showing that there were seventeen cashpoint withdrawals between 19^th April 2004 and 8^th September 2004, totalling £4,422. Thirteen of these withdrawals were for £300 and, contrary to what Mrs Burman had told the police, none was from KW's local cashpoint at Sidwell Street. One of the withdrawals, dated 27^th July, at 10.15am, was for £202 and was from a cashpoint near to Mrs Burman's home.

(iii) A letter from Brittany Ferries dated 18^th July, showing that Mr Burman had booked a crossing from Plymouth to Roscoff leaving in the afternoon of 27^th July 2004, for two adults and three children. The total bill was for £502 and the return journey was booked for the 10^th August 2004.

(iv) A schedule from Allied Healthcare, giving the names of employees who had worked with KW and the dates when they had done so. This schedule showed that most, though not all the withdrawals corresponded with Mrs Burman's visits to KW. However, she did not go there between 27^th July and 10^th August, the dates of the Brittany Ferry crossings and there were no withdrawals during that period, apart from the one on 27^th July.

(v) A copy of Allied Healthcare's company policy for employees in relation to handling clients' money, and their conditions of employment, both of which were set out in their Carer's Handbook. According to this document employees should only handle service users' money with written permission from them or an authorised person. If a service user held large sums of cash in her home they should report it to the branch manager. Failure to follow their guidance on "Handling of Money and Property" constituted gross misconduct. There was a signed declaration from Mrs Burman that she had "read, understood and agree(d) to abide by its conditions."

Findings

21. Although Mrs Burman was not present to give her evidence in person we had verbatim transcripts of police interviews in which she was given every opportunity to put her side of the story. PS Seager, who conducted the interviews also gave oral evidence to us about them and about her investigations of the allegations.
22. In the interviews Mrs Burman admitted that she and she alone had made the withdrawals. In any event it appears that no one else had the card or PIN numbers. Nearly all the withdrawals were on dates when Mrs Burman had worked with KW and there were no withdrawals whilst she was away on holiday. We therefore find that she, and she alone, made all seventeen of the withdrawals, though she tried to minimise her involvement by falsely claiming that she had only done so on about five occasions.
23. Contrary to what Mrs Burman said in interview, none of the withdrawals were from KW's local cashpoint, and one of them, on the morning of the day she and her family went on holiday, was from a cashpoint near Mrs Burman's home.
24. The majority of the £4,422 withdrawn was not used to buy things for KW or given to her, but kept by Mrs Burman. We find her explanations as to what she did with the money implausible, because there was little to show for all the money she withdrew. It would also have been totally out of character for KW to have authorised the withdrawals. Even if she had authorised them Mrs Burman would still, according to the conditions of her employment, have been guilty of gross misconduct for failing to obtain written permission either from her or from an authorised person. Similarly, her failure to inform her branch manager of the large sums of cash left over from the shopping, which she claimed was returned to KW and kept in her flat, would also have constituted gross misconduct.
25. Our findings are supported by the fact that Mrs Burman also had a motive for taking the money, as she and her husband were seriously in debt.
26. Taking all this evidence into account we therefore find that Mrs Burman Stole an unquantified but substantial amount of money from KW by making regular, unauthorised withdrawals from her savings account between April and September 2004.

Decision

27. In stealing money from KW's account Mrs Burman was guilty of misconduct of the most serious kind. She used her position to abuse the trust of a vulnerable person whose mental and physical frailty she exploited. The mere fact that she handled large sums of KW's money without written permission or reference to a person in a position of authority was, in itself, misconduct.
28. The financial loss caused to KW clearly harmed her. Not only did it deprive her of her savings, but, when she found out about the loss she appeared, as reported by Emma, "shellshocked." She was a person who was careful with her money, who made sure her bills were always paid and who was prone to depression. The loss of her savings caused her great distress.
29. Turning to the question of suitability, we have no doubt that the gravity of the offence and the repeated incidents of misconduct make Mrs Burman unsuitable to work with vulnerable adults. So far as recognition of the misconduct is concerned, even though Mrs Burman did not attend the hearing she has made it clear throughout these proceedings that she does not accept that she did anything wrong. She has repeatedly said that she considers that the fact that the criminal trial did not proceed completely exonerates her. In her letter of September 21^st, far from showing any remorse, she writes: "If I am found guilty by yourselves regarding this matter I will regard it as totally biased and unfair."
30. Taking all these things into account we have decided to dismiss this appeal and to confirm the decision of the Secretary of State to include Mrs Burman's name on the PoVA list.
31. The decision of the tribunal was unanimous.

Appeal Dismissed

3^rd October 2008

Signed

Ms Andrea Rivers (Chairman)

Ms Sally Derrick

Mr Christopher Wakefield