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England and Wales High Court (Administrative Court) Decisions
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Banks v Social Work England [2025] EWHC 1086 (Admin) (12 May 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/1086.html
Cite as:
[2025] EWHC 1086 (Admin)
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Neutral Citation Number: [2025] EWHC 1086 (Admin) |
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Case No: AC-2024-BHM-000236 |
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
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Birmingham Civil Justice Centre |
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12 May 2025 |
B e f o r e :
Her Honour Judge Carmel Wall sitting as a Judge of the High Court
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Between:
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EVELYN BANKS
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Appellant
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- and -
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SOCIAL WORK ENGLAND
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Respondent
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Mr G. Dingley (instructed through direct access) for the Appellant
Dr S. Fowles (instructed by Bevan Britten LLP) for the Respondent
Hearing date: 8 April 2025
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HTML VERSION OF APPROVED JUDGMENT
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Crown Copyright ©
Her Honour Judge Carmel Wall:
Introduction
- This is a statutory appeal brought pursuant to Part 5 Schedule 2 of the Social Workers Regulations 2018. Ms Evelyn Banks ("the Appellant") is represented by Mr Dingley. She appeals the decision made on 9 May 2024 by Social Work England ("the Respondent"), represented by Mr Fowles, to impose a Suspension Order for a period of 12 months. The effect of that Order is that the Appellant may not practise as a social worker for the period of the Order which is then subject to review.
- I am grateful to both Counsel for their clear and focussed submissions.
- The decision under appeal was made by a Panel of Adjudicators ("the Panel") following a hearing held between 6 and 17 November 2023 (inclusive) and then from 7 to 9 May 2024 (inclusive). Four principal allegations were made against the Appellant, each of which comprised a number of specific factual allegations. Some factual allegations were admitted. The remaining factual issues were determined against her by the Panel having considered written and oral evidence.
- On the basis of its factual findings, the Panel found the statutory ground of "lack of competence or capability" set out in regulation 25(2)(b) of the Social Workers Regulations 2018 was satisfied and that there was therefore a question arising as to the Appellant's fitness to practise as a social worker. The Panel went on to decide that the Appellant's fitness to practise was impaired both with respect to the "personal element" and "in the wider public interest". The Panel applied the sanction of a Suspension Order for twelve months by way of a final order (with an interim suspension order to cover the appeal period).
Background and chronology of key events
- The Appellant was employed by Oxfordshire County Council as a newly qualified social worker on 18 March 2019. Because this was her first post-qualification appointment, she received additional supervision and support in her Assessed and Supported Year in Employment ("ASYE") during her first 12 months' period of practice as a social worker.
- On 17 August 2020 the Appellant was dismissed from Oxfordshire County Council after she failed to satisfy the requirements of the ASYE. On 6 January 2021 the Appellant self-reported to the Respondent the concerns raised by her employers in relation to her competence and capability as an issue potentially relating to her fitness to practise (in accordance with her professional obligation to declare such matters). The Respondent then commenced an investigation into her fitness to practise.
- West Northamptonshire Council then employed the Appellant on a probationary basis commencing on 6 January 2021 but dismissed her in February 2022 for failure to pass her probationary period.
- Having conducted its investigation, the Respondent referred the matter to the Panel for final hearing. On 12 January 2022 the Respondent imposed an interim order on the Appellant with restrictive conditions of practice pending the final hearing. The Appellant's evidence to the Panel was that she had been unable to practise as a social worker after the interim order had been imposed because she had been unable to find work as a social worker due to the restrictive nature of the conditions of the interim order.
- The Panel made a final order on 9 May 2024. It discharged the interim order that had been imposed pending the outcome of the final hearing but imposed a further interim order pending any appeal. The Appellant filed an appeal on 4 June 2024 but failed to serve a sealed copy of the appeal until 25 July 2024 and was therefore out of time.
- The appeal was transferred to Birmingham on 25 September 2024.
Extension of time for service of the sealed notice of appeal
- The Appellant had served an unsealed copy of her notice of appeal on 25 June 2024 before serving the sealed copy one month later. Even the attempted service of the unsealed copy was out of time.
- There is power to strike out the appeal for procedural default. The late service is plainly a serious breach and with no good reason for it. But the parties have now prepared for the substantive hearing of the appeal and court time has been allocated to it. The outcome of the appeal has important consequences for the Appellant. It is possible to compensate the Respondent in costs for the Appellant's procedural default. The Respondent did not consent but similarly did not strongly oppose proceeding with the substantive appeal.
- Taking account of all the circumstances I therefore extend time to the extent necessary for service of the claim and proceed to deal with it on its substantive merits.
What did the adjudication panel decide?
- In November 2023 the Panel considered written evidence from eleven witnesses relied on by the Respondent of which eight additionally gave oral evidence. The Appellant gave evidence on her own behalf.
- The following allegations were made against the Appellant:
"While registered as a social worker:
- In relation to one or more of the service users identified in Schedule 1 [ten service users identified], you failed to undertake reviews and/or assessments adequately on one or more occasions;
- In relation to one or more of the service users identified in Schedule 2 [five service users identified], you:
a. failed to independently identify the need to undertake a formal Mental Capacity Assessment; and/or
b. failed to complete a Mental Capacity Assessment of sufficient quality;
- You failed to take appropriate and/or timely action to meet the needs of one or more service users and/or their families, namely: [seven service users identified]
- You failed to consistently demonstrate that you were capable of safe and effective practice without significant levels of support and/or supervision:
a. whilst employed at Oxfordshire County Council between March 2019 and December 2020;
b. whilst employed at West Northamptonshire Council between April 2021 and February 2022
Your conduct as may be found proven at paragraphs 1 - 4 above amounts to the statutory ground of lack of competence or capability
Your fitness to practise is impaired by reason of your lack of competence or capability
- The allegations therefore related to multiple incidents involving a significant number of different service users.
- The Appellant admitted allegation 1 in relation to a single service user, allegation 2 in its entirety and allegation 4 in its entirety. Applying rule 32c(i)(aa) of the Fitness to Practise Rules 2019, the effect of those admissions was that the allegations admitted were proved.
- The Panel proceeded to hear evidence about the remaining matters which were denied by the Appellant. It found all the remaining allegations proved. No appeal is made arising out of the factual findings of the Panel.
- It is notable that with respect to the first allegation and in relation to a number of different service users, the Panel identified basic errors; unclear, inconsistent or contradictory material within the assessments conducted by the Appellant; and that they were incomplete or missing important information. The Panel observed that the Appellant had made little progress during the ASYE process. In relation to the third allegation the Panel noted failures to meet the required standard due to delay in completing assessments and failure to take timely action, including with reference to safeguarding.
- The Panel then adjourned and in May 2024 considered whether the ground of lack of competence or capability was established and the Appellant's current impairment (if any). It considered evidence given by the Appellant, including training she had undertaken since the hearing in the previous November, and submissions made on behalf of both parties.
- In the case of each of the four allegations respectively, the Panel concluded that the Appellant's professional performance had fallen to a standard which was "unacceptably low". In relation to the first, second and third allegations the Panel found that standard to have been demonstrated by a "fair sample" of cases. In relation to the fourth allegation, the Panel commented on the backdrop of her professional performance being a lower-than-average caseload in terms of both complexity and volume when employed by each of the Councils. Further the Panel's view was that the Appellant had not made any significant progress in developing her social work knowledge and skills and required an extensive degree of support and supervision in order to complete core tasks.
- The Panel found that with respect to each of the allegations separately and cumulatively the Appellant's actions and conduct met the threshold for the statutory ground of lack of competence or capability.
- The Panel considered the submissions made on both sides on the issue of impairment. Both sides commented on the fact that the Appellant had not obtained further employment as a social worker since the imposition of the interim order. There was therefore no evidence before the Panel of whether the Appellant's practice had improved or that the faults identified by the Panel had been remediated.
- The Panel's assessment was that the Appellant had acted in the past so as to put service users at unwarranted risk of harm and was liable to do so in the future. The Panel recognised that the Appellant had expressed some insight but did not consider that the level of insight she demonstrated was sufficient to satisfy it that she would not put service users at unwarranted risk of harm in the future. The Panel specifically commented that it considered the Appellant's limited insight to be self-focussed because of her denials at the fact-finding stage, her view that her own failings were due to a lack of support from others, and her lack of understanding of the risk of harm arising from her actions. The Panel did not consider that she demonstrated remorse and instead focussed on the impact on herself if unable to work as a social worker. The Panel was not satisfied the Appellant had undertaken sufficient remediation to avoid unwarranted risk to service users in the future.
- The Panel considered the Appellant had brought the profession of social work into disrepute and did not have sufficient insight or have undertaken sufficient remediation so as not to do so in the future.
- In placing the safety and wellbeing of service users at risk the Panel considered that the Appellant had breached a fundamental tenet of the social work profession and did not have sufficient insight or have undertaken sufficient remediation so as to avoid this recurring in the future.
- The Panel acknowledged there was no suggestion that the Appellant had behaved dishonestly.
- The Panel's conclusion was that the Appellant had impaired fitness to practise in relation to the personal element and in the wider public interest.
- There is no appeal arising out of any of these determinations.
- The Panel then approached the issue of sanction. This is the focus of the appeal.
- It was submitted on behalf of the Respondent that a Suspension Order for no less than 12 months was an appropriate and proportionate sanction. In the alternative, and if the panel was minded to issue Conditions of Practice, the Respondent proposed conditions for the consideration of the panel (which conditions were agreed with the Appellant).
- It was submitted on behalf of the Appellant that the appropriate and proportionate sanction was that of a warning.
- In reaching its conclusions the panel stated that it was obliged to pursue the overarching objective of public protection and that the purpose of a sanction was not to punish, albeit a sanction might have punitive effect.
- The following were identified as mitigating factors when considering sanction:
a. early admissions to some of the allegations;
b. at the time the incidents occurred, the appellant was at an early stage of her career;
c. there was some evidence that the supervision and mentorship the Appellant received at each of the councils was "not of the highest quality";
d. the Appellant had experienced stressful personal circumstances;
e. the Appellant's good character;
f. the financial impact of the proceedings on the Appellant.
- The following were identified as aggravating factors when considering sanction:
a. the Appellant had put service users at risk of harm;
b. the failures in practice were wide-ranging and repeated, despite the Appellant receiving significant assistance and multiple reviews of her work;
c. the Appellant's limited insight which was self-focused;
d. lack of remorse;
e. the limited remediation undertaken and the absence of evidence to show the impact that further training had had on her or any reflection following further training.
- The Panel then adopted a stepped approach to the imposition of a sanction. It found that in light of the seriousness of its findings it was unable to take no action or issue advice because that would not adequately protect the public or be sufficient to maintain public confidence in the profession of social work.
- The Panel next considered whether to issue the Appellant with a warning. This was the level of sanction advocated on the Appellant's behalf. The Panel identified the criteria for a warning as being an isolated or limited fitness to practise issue, a low risk of repetition, and the demonstration of insight by the social worker. The Panel found that none of these criteria applied and that a warning order would not be sufficient to meet the wider public interest of maintaining public confidence in the social work profession and upholding proper standards of conduct and behaviour.
- The Panel then considered whether a Conditions of Practice Order ("CPO") would be proportionate and appropriate but rejected this sanction. The following considerations were highlighted:
a. the wide-ranging allegations that had been admitted or proved;
b. the finding that the appellant had put service users at unwarranted risk of harm;
c. the high risk of repetition of the failures identified;
d. the context of close supervision during the ASYE year;
e. the continuing limited insight on the part of the Appellant;
f. the Appellant's failure to understand and appearance of detachment from the risk of harm that her actions had placed on service users.
Having regard to those findings, the Panel further decided that it could not formulate conditions sufficient to protect the public which were proportionate or workable or which were not so restrictive that they would be tantamount to suspension.
- The panel did consider a Suspension Order to be appropriate and proportionate to protect the public and in the wider public interest. The panel identified three reasons for this conclusion. Firstly, the admitted and proven allegations demonstrated failures in fundamental aspects of social work and amounted to a serious breach of professional standards. Secondly, the Panel's view was that the Appellant had demonstrated limited insight and had undertaken limited remediation. It saw a Suspension Order as providing the Appellant with time to reflect on the Panel's findings, to obtain insight and to remediate her practice. Thirdly, the Appellant had indicated a willingness to resolve the identified failings, and the Panel wanted to provide an opportunity for this to be demonstrated.
- The Panel's ultimate conclusion was that its duty to uphold the wider public interest outweighed the Appellant's professional and personal interests in returning to practise social work immediately. The Panel had regard to paragraph 142 of the Impairment and Sanctions Guidance which provided that suspension of up to one year might be appropriate if the primary aim of the order was to maintain confidence in the profession and/or ensure that professional standards were observed. The Panel was satisfied that 12 months would be a sufficient period of suspension for the Appellant to develop insight and remediate her practice; and that this would also be a sufficient period of time to protect the public and maintain public confidence in the profession. The Appellant had said that she wanted to return to social work. The Panel accepted that it was in the public interest to support a trained and skilled social worker to do so. This militated in favour of limiting the period of suspension to 12 months to avoid the Appellant becoming deskilled. The Suspension Order would be subject to review before expiry in order to consider whether the Appellant could safely return to social work or whether she remained impaired.
- A Removal Order was not available for consideration.
- In order to protect the public pending any appeal by the Appellant, the Panel imposed an interim suspension order for 18 months to cover the period pending any appeal before the final order became effective. No submissions on this issue were made to the Panel on behalf of the Appellant.
Grounds of appeal
- The Appellant appeals on two grounds:
a. The Panel failed to give sufficient reasons for its decision on sanction; and
b. The decision to make a final Suspension Order for 12 months was not one which the Panel could reasonably have reached on the evidence before it.
- The appeal is thus directed only at the sanction. There is no challenge to the findings and evaluative conclusions of the Panel relating to any other aspect of the decision making. The focus of the appeal is significant because the imposition of a sanction is a multifactorial decision which takes account of the Panel's factual findings and evaluative assessments.
Legal framework
- The role of the appellate court in a statutory appeal against a decision of an adjudication panel is to review the panel's decision and not to undertake a rehearing of the merits of the decision made. An appeal can be allowed only if it can be shown that the Panel's decision was either wrong or unjust because of a serious procedural or other irregularity in the Panel's proceedings.
- The correct approach for an appellate court is set out in the judgment of Collins Rice J in Professional Standards Authority for Health and Social C v (1) GMC and (2) Rose [2021] EWHC 2888 (Admin) at paragraphs 35 to 37 and 41 which I respectfully adopt:
35. As confirmed by the Court of Appeal in Ruscillo v CRHCP & GMC [2004] EWCA Civ 1356 at paragraphs 69 to 73, Part 52 of the Civil Procedure Rules applies to this sort of appeal. An appellate court is limited to a review of the FTPC decision (unless it considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a rehearing). It will allow an appeal if it is satisfied that the FTPC decision was (a) wrong or (b) unjust because of a serious procedural or other irregularity in the proceedings of the FTPC.
36. The correct approach of an appellate court on such an appeal was summarised at Divisional Court level in GMC v Jagjivan [2017] EWHC 1247 (Admin), [2017] 1 WLR 4438, at paragraphs 39-40. Since the appellate court lacks the FTPC's professional expertise, it must approach a challenge that the FTPC has made 'wrong' decisions about what is necessary to protect the public, and maintain public confidence and proper standards in the profession, with a degree of 'diffidence'. But there may be matters (dishonesty or sexual misconduct are examples) where the court is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself, and thus attach less weight to the expertise of the FTPC. In such cases the court will afford an appropriate measure of respect to the FTPC's decision, but not more than is warranted by the circumstances. Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulatory is the protection of the public. A failure of the FTPC to provide adequate reasons may constitute a serious procedural irregularity rendering a decision unjust.
37. Further guidance is provided by the Court of Appeal in Bawa-Garba v GMC [2018] EWCA Civ 1879; [2019] 1 WLR 1929, at paragraphs 60-67. A sanction decision of the FTPC is an evaluative decision based on many factors – a 'multifactorial decision' involving a mixture of fact and law – and the same may be said of the assessment of FtP. An appellate court has limited scope for overturning such decisions. Its approach should be conditioned by the extent to which it is at a relative disadvantage. It should interfere only if it identifies an error of principle by the FTPC in carrying out the evaluation, or the evaluation was wrong because it falls outside the bounds of what the FTPC could properly and reasonably decide.
41. My task on this appeal is limited. It is not to agree or disagree with the FTPC, or to revisit its findings of fact or misconduct. It is to consider whether the FTPC subsequently went wrong to the extent of reaching further determinations it was not properly entitled to reach at all. That might be because the decisions on FtP and sanction are internally illogical or cannot be reconciled with the FTPC's own decisions on facts and misconduct. Or it might be because procedural or other irregularity – error of principle or failures of approach or reasoning – mean the FTPC did not do the case proper justice. So before getting to grips with the detail of the parties' arguments either way, it is important to stand back and establish the undisputed context of this appeal – the foundation of fact and misconduct on which the FTPC constructed its decisions on impairment and sanction. It was for the FTPC to assess the gravity of Ms Rose's misconduct on the facts it had found, and that assessment of gravity is crucial for the ensuing stages of its decision-making.
- The first of the grounds of appeal is a reasons challenge. A failure of the Panel to provide adequate reasons may constitute a serious procedural irregularity rendering a decision unjust. But it is well established that an adjudication panel is not required to provide reasons to the same standard as a court; and it will generally be sufficient for the reasons to demonstrate to the parties and to any appellate tribunal why the panel considered the sanction imposed to be appropriate and why alternative sanctions were not appropriate (see Moyo v Nursing and Midwifery Council [2015] EWHC 3547 (Admin) at paragraph 13).
- To succeed on the second of the grounds, the appellant must show that the panel went wrong to the extent of reaching a conclusion outside the range of conclusions it was entitled to reach on the evidence before it. It is not for this court either to agree or disagree with its conclusion, nor to re-make any findings of fact or evaluative conclusion on which the ultimate decision was based.
- The legal framework within which the Panel was operating is that set out in the Children and Social Work Act 2017 and Part V of The Social Workers Regulations 2018. The applicable policy and guidance are provided by the Social Work England Professional Standards Document and Social Work England Impairment and Sanctions Guidance (last updated 19 December 2022) ("the Guidance").
The arguments
- As to ground 1 of the appeal, Mr Dingley challenges the sufficiency of reasoning offered by the Panel to support the level of sanction imposed. In particular he argues that the Panel gave insufficient reasons to explain why a CPO was not appropriate and proportionate. He criticises the Panel's reasoning because he says it fails to engage with the conditions proposed by the Respondent during closing submissions, and does not explain why those conditions, either individually or collectively or any other conditions were not considered workable. He argues the Panel expressed its conclusion that, "the panel found that it could not formulate conditions which were proportionate or workable, or which were not so restrictive that they would be tantamount to suspension, in order to protect the public" without addressing the underlying reasoning for it. He argues that was a significant omission in the context of the Appellant having been permitted to work subject to conditions during the period of the interim order (albeit she did not in fact undertake any work as a social worker during that time). Mr Dingley relies particularly on the stepped approach to sanction mandated by the Guidance which imposes on the Panel an obligation to give sufficient reasons at each stage of its determination. He also relies on paragraph 124 of the Guidance which he argues mandates specific reference to issues which are not dealt with in the Panel's reasoning.
- Mr Dingley submits that these deficiencies in the Panel's reasoning amount to a procedural irregularity.
- As to ground 2 of the appeal Mr Dingley argues that the level of sanction imposed was outside the range of reasonable outcomes available to the Panel on the evidence it had heard and was unjustifiably harsh. He submits it was clearly "wrong".
- He supports that conclusion by reference to the Panel's approach to its identification of mitigating and aggravating factors. He identifies factors that are specified in the Guidance in its non-exhaustive list of potential mitigating factors but which he submits were omitted from the Panel's list of mitigating factors at paragraph 90 of its decision. While conceding that some of the factors he has identified are referred to in other parts of the Panel's decision, he argues that the staged and formulaic approach that the Guidance requires the Panel to take means that this is not a sufficient reference. He further argues that the Panel was wrong to treat the Appellant's submission that a Warning Order would be sufficient to protect the public as an aggravating factor (see paragraph 96e(ii) of the Panel's decision). Mr Dingley argues that the combination of these matters caused the Panel to reach a "wrong" decision.
- Mr Fowles argues that the reasons given by the Panel were sufficient to explain its decision. The panel gave detailed consideration to a CPO. It set out six specific factors that led it to the conclusion that sufficient conditions could not be formulated, in a context in which the Panel had found fundamental failings in practice over a large number of individual cases. He argues the decision must be read as a whole, including the Panel's findings on impairment, which provide the context for its conclusions on sanction. Even if the Panel did not respond to every single point, that is not sufficient to undermine the sufficiency of its reasoning.
- When addressing the question of whether a CPO was appropriate, Mr Fowles submits that it is implicit in the Panel's decision that it considered that the circumstances were of such seriousness that the necessary conditions to protect the public would be so restrictive they would be unworkable. The Panel properly applied the Guidance and identified the key reasons why a CPO was not a viable disposal. The Panel could not be expected to explain why the conditions imposed in the interim order were not sufficient to protect the public because there was no evidence as to their workability. The Appellant had not worked as a social worker under that regime and her own evidence was that the conditions were too restrictive for her to do so.
56. Mr Fowles observes that the Panel had found that close supervision of the Appellant during her ASYE year had not been sufficient to avoid the failures it had found proved and the Appellant had "continuing limited insight … in relation to her failures". It was not necessary in those circumstances for the Panel to work slavishly through the bullet pointed factors in paragraph 124 of the Guidance in order to provide sufficient explanation for its decision to the public and to any appellate body.
- In responding to the second ground of appeal, Mr Fowles argues that the Panel's reasoning followed the criteria set out in the Guidance and that the Appellant's second ground of appeal is simply a disagreement with the weight that the Panel attached to the evidence of aggravating and mitigating factors. The Guidance properly affords respect to the judgment of an expert adjudication panel. There is some degree of overlap in the criteria for a CPO and Suspension Order, the list of potential mitigating and aggravating factors is expressly non-exhaustive, the language used in the Guidance is largely permissive. The Panel did not exercise its judgment unreasonably.
- Mr Fowles submits that the Appellant does not suggest that the criteria for a Suspension Order have not been met. In the absence of such challenge, she cannot contend that it was not within the range of reasonable outcomes, even if she disagrees with it.
Discussion
Overarching considerations
- The Panel's decision on sanction was the final part of a process in which it had made reasoned determinations for its fact finding and evaluative assessments on the issues of competence and capability and impairment to practise. No criticism is made of these aspects of the Panel's decision. The reasoning for the imposition of a Suspension Order must be read in that context and taking account of the reasons as a whole. The Guidance mandates a staged process in decision-making. That does not mean that when considering the Panel's written reasons, the Panel's reasoning with respect to any single sanction should be severed from the remainder of the written reasons and read in isolation. To do so would be artificial. The context in which the Panel approaches the decision-making on sanction underpins its reasoning on the level of sanction to impose and why it has rejected lesser sanctions.
- The context here was that the Panel had found a significant number of fundamental failings during the Appellant's employment at two different Councils. While employed by the first, she had been in her AYSE period, when employed by the second she had been a probationer. In both instances (and particularly with Oxfordshire County Council during her AYSE period) she had been under close supervision, yet this had not avoided basic errors occurring.
- Her admissions to the alleged failings had been limited. She had maintained a denial of responsibility for the majority of the failings ultimately proved. Her insight into the causes and potential effect of her failings had been found to be limited and self-focused. The Panel found not only that she was currently impaired in her fitness to practise but also that she was liable in the future to put service users at unwarranted risk of harm, bring the profession into disrepute and breach one of the fundamental tenets of social work, namely placing the safety and wellbeing of service users at risk.
- While recognising the Appellant had undertaken some remediation work since the interim order had been imposed, the Panel was not satisfied this was sufficient to allay its concerns for the future. It commented specifically that the Appellant could not explain what she had learned from her additional training and how she would do things differently.
- The interim order had allowed the Appellant to work under strict and restrictive conditions. That was an order imposed before the allegations made against the Appellant had been proved. But more importantly, the Appellant had not in fact undertaken any work under that regime. There was no evidence for the Panel to consider on the issues of whether the imposition of those conditions was sufficient to avoid further failings in practice, protect the public or that they were workable. The Appellant's own evidence to the Panel was that the conditions were so restrictive that they had prevented her from finding employment as a social worker. (Mr Dingley argued that it was possible she was wrong in this conclusion, and she had failed to secure employment for other reasons. While that is entirely possible, it was not the evidence before the Panel.)
- The Guidance required the Panel to adopt a stepped approach, rejecting each lesser sanction before turning to the next more serious sanction. It is not suggested that the Panel did not follow this approach. Unlike the submissions at the final hearing which had advocated for a Warning Order, the focus of the Appellant's submissions on appeal was that insufficient reasons had been given for rejecting a CPO and then moving up to the scale to impose a Suspension Order. It was not suggested by Mr Dingley that any sanction below the level of a CPO had been improperly rejected or that insufficient reasons had been given for its rejection. I have therefore focussed on the Panel's reasons for rejecting a CPO in favour of the more serious sanction of Suspension Order in considering the grounds of appeal advanced.
- I recognise the very significant impact of the Panel's decision on the Appellant and her career. The Guidance recognises that sanctions are likely to have punitive effects, though must not be imposed to punish. Mr Dingley did not argue that the Panel had contravened this principle in his oral argument. He was right not to do so. It is clear from the Panel's decision that its focus throughout was to reach a decision consistent with the overarching objective set out in the Guidance at paragraph 2 thereof, namely, to protect the public.
Ground 1 – the reasoning to support the level of sanction imposed and reject a lesser sanction
- At paragraph 96 of its reasons the Panel listed six reasons for concluding that a CPO would not be appropriate. Those reasons highlight the Panel's findings and evaluative conclusions that the failings had been of a wide-ranging and serious nature, the presence of risk for the future, the fact that the failings had occurred despite high levels of supervision, and the assessment of the Appellant's continuing limited insight, particularly with respect to risk of harm. The detail and background to these headline points are clearly and comprehensively addressed throughout the body of the Panel's reasons.
- In explaining why a CPO had been rejected, the Panel stated, "The panel gave extensive thought to a condition of practice order. However, given [the six factors] the Panel found it could not formulate conditions that were proportionate or workable or which were not so restrictive that they would be tantamount to suspension, in order to protect the public". The reasoning expressly states that it is the six headline factors that are the basis for the Panel's conclusion that no conditions short of those effectively amounting to suspension could address its concerns in relation to public protection. The conclusion is not properly characterised as freestanding but rather relies for its foundation on the headline factors.
- Mr Dingley criticises the reasoning for not following the scheme of paragraph 124 of the Guidance. This paragraph reminds adjudication panels that:
124. Conditions of practice must be "proportionate and workable. In determining whether a condition is workable, the decision makers should make reference to (all of the following):
- The social worker and their working environment
- Any practical implications for employers
For example, the conditions of practice may involve a high level of supervision. If so, the decision maker should consider whether it's reasonable to expect an employer to provide this level of supervision.
- But it is not a paragraph of the Guidance that should be read in isolation. It is part of a section of the Guidance running from paragraphs 123 to 127 under the heading "Considerations for formulating conditions". This section of the Guidance is concerned with the approach to take if a panel concludes that a CPO might be an appropriate level of sanction and is then seeking to define the conditions required to implement it; and how to ensure the effectiveness and workability of those conditions. The section informs decision makers of the fitness to practise conditions bank where they can find precedents and explains how conditions should be drafted so as to facilitate monitoring of the social worker, for example. The Panel in this case had clearly explained that by reason of the six factors it had identified, its conclusion was that no conditions short of suspension were appropriate. Having made that judgment, it did not need to stress-test either a package of conditions or individual conditions by reference to the paragraph 124 factors and its reasoning was not deficient for an omission to do so. In other words, the paragraph 124 factors did not arise for consideration because the Panel had decided for cogent reasons that were clearly identified that no viable conditions could suffice to protect the public.
70. But even if I am wrong in that conclusion, firstly, the language used in paragraph 124 is in any event advisory and not mandatory (viz. "the decision makers should …".)
- Secondly, the bullet pointed factors were in fact addressed by the Panel albeit indirectly though in a way that was sufficiently reasoned and readily comprehensible. In concluding that workable conditions could not be formulated, the Panel's reasoning included the high risk of repetitive conduct and the Appellant's apparent detachment from the risk of harm arising from her actions. Those factors pertained to "the social worker and [her] working environment". The Panel had also commented on the failures occurring despite a high level of supervision during her ASYE year and the Appellant's belief that failures in her practice were "solely due to inadequate supervision and mentorship". The only reasonable inference to draw from this was that the level of supervision currently required to address the Panel's concerns was unworkable, because it would need to go beyond the "close supervision" she had already received.
72. I reject Mr Dingley's submission that the Panel was obliged to address the conditions that had been suggested by the Respondent either individually or collectively. It is plain from the Panel's decision that the Respondent's primary position was that a Suspension Order should be imposed. At paragraph 87e of its decision, the Panel records the Respondent's detailed reasons for submitting that "Conditions attached to her practice would be insufficient to protect the public …" This was not an equivocal position. The suggested conditions at paragraph 87i are offered as an alternative only if the Respondent's primary submissions were rejected. In the event they were not.
- The fact that the Appellant was subject to a conditional regime as part of the interim order was of no evidential value to the Panel when considering whether a CPO was workable and would protect the public. This factor therefore could not inform or comprise any part of its reasoning. The Appellant had not worked under that regime. It had not been tested. The only relevant evidence before the Panel was from the Appellant herself who said she had found the conditions too restrictive to find work as a social worker.
- I am satisfied the Panel's reasoning was sufficient to explain why it rejected a CPO. I find no procedural irregularity. It follows that this ground of appeal fails.
Ground 2 – was the imposition of a Suspension Order "wrong"?
- In order to succeed on this ground, the Appellant must show that the imposition of a Suspension Order was not a decision that could reasonably have been reached on the evidence and/or was not in accordance with the Guidance. As Mr Dingley accepts, this is a high hurdle.
- Although the Panel was obliged to take a staged approach by starting with the lowest level of sanction before moving to a more serious level of sanction, the starting point for testing this ground of appeal is the criteria set out in the Guidance for a Suspension Order. The Guidance addresses when a Suspension Order may be appropriate at paragraphs 136 and 137 which provide as follows:
136. Suspension is appropriate where (both of the following apply):
- the decision makers cannot formulate workable conditions to protect the public or the wider public interest
- the case falls short of requiring removal from the register (or where removal is not an option)
137. Suspension may be appropriate where (all of the following):
- the concerns represent a serious breach of the professional standards
- the social worker has demonstrated some insight
- there is evidence to suggest the social worker is willing and able to resolve or remediate their failings.
- The Panel's findings and evaluative conclusions fall within the scope of both the prescriptive and discretionary paragraphs. Mr Dingley does not argue that these criteria do not apply. A Suspension Order was therefore within the range of reasonable Orders that the Panel could have made. It cannot be said to be plainly wrong in those circumstances.
- The focus of Mr Dingley's submissions is rather that the Panel was plainly wrong to move from a CPO to a Suspension Order. The circumstances in which a panel might consider a CPO are set out in paragraph 14 of the Guidance which provides as follows:
114. Conditions of practice may be appropriate in cases where (all of the following):
- the social worker has demonstrated insight
- the failure or deficiency in practice is capable of being remedied
- appropriate, proportionate, and workable conditions can be put in place
- decision makers are confident the social worker can and will comply with the conditions
- the social worker does not pose a risk of harm to the public by being in restricted practice
- The Panel's findings and evaluative conclusions were not compatible with all of these criteria applying. The Appellant's insight was addressed in detail and found to be limited and that she had failed to understand and appeared to be detached from the risk of harm her actions had posed to service users. The Panel had identified serious and wide-ranging proven allegations, a high risk of repetition of conduct similar to the failings found and that the conduct had occurred while the Appellant was under close supervision. Even though the Panel did not exclude the potential for remediation (in time) and did not suggest that the Appellant would fail to comply with conditions, it cannot be said that its findings and conclusions satisfied all of the criteria in paragraph 114. It therefore cannot be said that it was wrong to move to a more severe sanction.
- Paragraph 119 of the Guidance identifies features that would indicate a CPO was unlikely to be appropriate (such as dishonesty and sexual misconduct). It is not suggested that any of these features applied to the Appellant. But paragraph 119 cannot be read so as to make any of those features necessary conditions of moving from a CPO to a Suspension Order. Mr Dingley does not suggest otherwise.
- Applying the criteria in the Guidance, it must therefore follow that the Panel was entitled to move up in sanction from a CPO. The next sanction to consider was a Suspension Order for which the criteria in both of paragraphs 136 and 137 did apply. There is no basis for finding the Panel's decision was not in accordance with the Guidance so far as the criteria for sanction is concerned.
- Mr Dingley suggests that the Panel fell into error in its approach to mitigating and aggravating factors. He argues firstly that the Panel omitted to address material factors of mitigation and secondly that it wrongly took into account as an aggravating factor a matter which should have been left out of account. He suggested in submissions that this combination of "errors" might have been enough to sway a Panel to take a different course. That is not the test I must apply. It is for the Appellant to persuade me that the Panel's approach was "wrong".
- Mitigating factors are dealt with in the Guidance at paragraph 81 which provides as follows:
81. Potential mitigating factors include, but are not limited to (any of the following):
- Evidence of the social worker's insight, remorse and understanding of the problem, and their attempts to address it. This may include (any of the following):
- early admission of the facts
- full engagement with investigations
- apologies to anyone affected
- any efforts to prevent behaviour recurring
- evidence that the social worker has done remediation which addresses the deficiencies that led to the concerns. This may include (any of the following):
- the successful completion of education or training courses
- satisfactory performance appraisals
- other positive feedback in relation to their professional practice
- personal mitigation such as (either of the following): periods of stress or illness
- personal and financial hardship
- absence of previous fitness to practise history
- evidence of good character in the form of character references and testimonials
- contextual factors which are relevant and material to the events that raised the concerns. For example (any of the following):
- the level of experience of the social worker at the time
- the level of support the social worker received (such as training and/or supervision at work)
- evidence of wider or systematic issues in the workplace
- Mr Dingley bases his submission on the following.
- Firstly, he argues the Panel made no specific reference to the Appellant's engagement with the investigation (together with the fact that she self-referred to the Respondent). I am not satisfied that was a material error. The Guidance treats this as a potential indicator of "insight, remorse and understanding of the problem and their attempts to address it". It is given as an example of a behaviour alongside early admission, apologies and efforts to prevent recurrence. The Panel was plainly alive to this area of evidence. That is clear from its careful attribution of the Appellant's partial early admissions to its list of mitigating factors; and the Appellant's limited insight, failure to apologise and lack of remorse to its list of aggravating factors. It was for the Panel to exercise its expert judgment in balancing and weighing the evidence in this entire area. It did so. It was not necessary for the Panel to list every single point.
- The Panel was further entitled to regard the self-referral as neither a mitigation nor aggravating factor. The Appellant was obliged to self-refer pursuant to Professional standard 6.6 which required her to declare anything that might affect her ability to do her job competently or might affect her fitness to practise. She did no more than she was professionally obliged to do. Had she failed to self-refer, that failure would have counted against her.
- Secondly, Mr Dingley argues that the steps undertaken by the Appellant by way of remediation pending the final disposal were not properly taken into account. I reject that submission. The Panel found that the remediation had been limited, of no demonstrable impact and that the Appellant had not shown any reflection on completing it. It was entitled to exercise its expert judgment to treat this as an aggravating factor.
- Thirdly, Mr Dingley argues that the Panel did not specifically address the testimonials provided by the Appellant and that she had no previous fitness to practise history. However, the Panel identified the Appellant's good character as a mitigating factor. This was sufficient to encompass that material in the context of there being no finding to impugn the Appellant's honesty or other similar personal qualities.
- Finally, Mr Dingley submits that the Panel gave insufficient weight to the context of the failures with reference to the stage of the Appellant's career and the quality of the supervision and mentorship she received. These factors were explicitly identified as mitigation. This challenge is quintessentially one of disagreement with the weight the Panel attached to individual factors. It does not persuade me that the Panel went outside the scope of reasonable decision-making.
- When addressing the aggravating factors, Mr Dingley argues that the Panel was wrong to treat the submissions on sanction made on behalf of the Appellant as an aggravating factor. He argues that the scheme of the Guidance is to consider lesser sanctions first and so the Appellant should not have been criticised for advocating a lesser sanction than that ultimately determined appropriate.
- The complete answer to this submission can be found in the way in which the Panel approached this issue. It did not penalise or treat as aggravating the mere fact that the Appellant had advocated for a warning order as sanction. The list of aggravating factors at paragraph 91 of the Panel's decision does not include that issue at all. The Panel's approach was more nuanced. It treated her "belief" that a warning order would suffice to protect the public as an exacerbation of its conclusion that the Appellant had continuing limited insight in relation to her failures (see paragraph 96e). That approach was neither irrational nor otherwise wrong in circumstances in which the Panel had concluded that none of the criteria in the Guidance for the imposition of a warning order applied. It was entitled to conclude that the Appellant's belief that a warning would be sufficient to address her failings was an indicator of limited insight.
- I am not satisfied the Panel has been shown to be "wrong" in its approach or conclusions. I respectfully agree with Mr Fowles that this ground goes no further than a disagreement with the Panel's decision. This ground of appeal fails.
Outcome
- The appeal is dismissed. The parties are invited to attempt to agree an Order consequent upon this judgment.
- I appreciate this will be a disappointing outcome for the Appellant who wished me to understand (as I do) that the proven conduct occurred at an early stage of her career.