First-tier Tribunal (Health Education and Social Care Chamber)

Mhembere v Secretary of State for Health [2008] UKFTT 4 (HESC) (12 November 2008)

Sharon Mhembere

- v –
The Secretary of State for Health
Application No. [2008] 1291 PVA
Before:
Ms Andrea Rivers Mrs C. A. Alford Mrs Wendy Stafford
Heard on 23^rd October 2008, at Southampton Employment Tribunal
Samantha Broadfoot of Counsel appeared on behalf of the Respondent. Sharon Mhembere appeared in person and represented herself.

The Appeal

1. This was an appeal received by the tribunal on 17^th April 2008. Ms Mhembere appealed against a decision, confirmed on 8^th February 2008, to include her name on the PoVA list

Background

2. In July 2006 the appellant began working as a night care assistant at Merry Hall Nursing and Residential Care Home. The following December there was a CSCI inspection at which it was discovered that the home had not yet obtained a CRB check for her. Although it appears that the manager at that time took steps to remedy this, by March 2007, when a new manager, Pamela Johnson, took over, the CRB check had still not arrived.
3. Eventually, on 8^th May 2007, it did arrive. It showed that the appellant had a number of convictions for offences of dishonesty. Mrs Johnson noted that none of this information had been disclosed on the appellant's job application form and that indeed the form showed that she had specifically denied having any criminal convictions.
4. Mrs Johnson telephoned the appellant and told her that she regarded the fact that she had provided false information on her application form to be a dismissable offence and, in the absence of any explanation from Ms Mhembere which she considered to be satisfactory, she wrote her a letter of dismissal.
5. She then, on the advice of CSCI, referred the matter to PoVA list who made further investigations and on 8^th February 2007 Ms Mhembere's name was confirmed on the PoVA list.

Evidence

6. We read a statement and heard oral evidence from Pamela Johnson, on behalf of the respondent, and we heard oral evidence from Ms Mhembere herself. We were also shown documentation including:

i) the job application form;

ii) the CRB disclosure form;

iii) police computer records of the appellant's convictions;

iv) court records of the appellant's convictions and

v) two references for the appellant, written in support of her job application.

The Convictions

7. The information disclosed on the CRB check was confirmed by the police records. The court records were incomplete, but supplied additional, supplementary information. Taken together, these documents provided us with information about her convictions.
8. On 8^th December 2003 Ms Mehmbere was convicted of fifteen offences of false accounting at Guildford Crown Court, with eleven other offences taken into consideration. These offences involved submitting timesheets claiming payment for work which she had not done, signed by a friend of hers. The total amount claimed was £7,500 and the employer was Bettercare Health Services. Eleven other offences were taken into consideration (TICs). For all these offences she was sentenced to 60 hours Community Punishment Order and 18 months Community Rehabilitation Order.
9. On 20^th August 2004, at East Dorset Magistrates Court, she was convicted of two offences of receiving stolen goods, two offences of forgery and two offences of using a false instrument. There were a further fifty-one TICs. According to the CRB disclosure the offences related to three stolen credit cards and she was sentenced to 120 hours Community Punishment Order.
10. On 28^th December 2005, at Woking Magistrates Court, she was convicted of breaching the Community Punishment and Rehabilitation Order. The court record shows that she admitted the offence and that no separate penalty was imposed.
11. At an early stage in these proceedings the respondent asked Ms Mhembere whether or not she accepted these convictions.
12. In a letter dated 11^th August 2008 Ms Mhembere wrote a letter in which she admitted the convictions for the fifteen offences in relation to the falsified timesheets and two offences of handling stolen goods. She did not accept the offence of breaching the Community Punishment and Rehabilitation Order.
13. In her oral evidence to us she also accepted that the sum of money falsely claimed amounted to £7,500. She agreed that she had accepted liability for TICs but told us that she had not understood what she was agreeing to at the time and now denied these additional offences. She also told us that the credit card offences related to the theft and use by her of her mother's credit card and no other cards. She remained adamant that she had not breached her Community Punishment and Rehabilitation Order.

The Law

14. 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…

15. It is for the respondent to prove their case on balance of probability.

Findings

Was there misconduct which harmed or placed at risk of harm a vulnerable adult?

16. The misconduct relied upon by the respondent was that of giving false

information on the application form. She omitted all reference to her convictions

and falsely claimed to be an honest person and to have no convictions. She did

this in a number of places on the form:

(i) In the section headed "Previous jobs" she failed to include her work for Bettercare Health Services, the employer whom she had defrauded by make false claims for work she had not done.

(ii) In the section where she was asked to explain why she was suitable for the

job she specifically used the words: "I am… an honest person", in support

of her application.

(iii) At the end of the form she signed the following declaration:

I declare that to the best of my knowledge and belief

the information given on this form is true, and I

understand that giving any false information or leaving

out important information will make my application

unacceptable and, if I am appointed, may lead to my

dismissal.

(iv) Attached to the application form was a sheet headed: Rehabilitation of

Offenders Act 1984 (Exceptions) Order 1975. It asked: Have you ever

been convicted of any criminal offence(s)? There was a box marked

"Yes" and a box marked "No". The form ended with the words:

"A criminal conviction will not necessarily lead to the refusal of your

application. However, failure to disclose any conviction could lead

either to your application being refused or, if your application is

successful, to cancellation of your registration if it is subsequently

learnt that you have a criminal conviction."

Ms Mhembere put a cross in the box marked "No" and signed at the end

of the form, immediately below the warning about the consequences of

non-disclosure.

17. Her explanation for not mentioning her convictions was that she had been told by her probation officer that she did not have to disclose convictions over a year old. However, in our view, this cannot account for the repeated instances of false or misleading information shown on the form. In any event, her most recent conviction, for breach of the Community Punishment and Rehabilitation Order, was in December 2005, and she filled out the application form in June 2006, only six months later. The fact that she denies this last offence is contradicted by evidence in the court record showing that she appeared in court and admitted it.
18. Taking all the above evidence into account, we find that she intentionally filled out the application forms in such a way as to conceal her past history of dishonesty and falsely to present herself as an honest person, and that this constituted misconduct.
19. We also find that she sought to minimise her history of offending in her evidence to us by claiming that she was not responsible for the TICs and that the credit card offences related only to one card. The police records are clear and likely to be reliable and we think it more likely than not that they are correct.

Risk of Harm

20. In her statement Mrs Johnson describes Ms Mhembere's job as follows:

(…it) involved providing personal care to up to 32 vulnerable adults. Generally, the residents at Merry Hall do not have dementia, but some do and some have very limited ability to communicate, following strokes. Ms Mhembere would have to have met all residents' needs……and, when working at nights, she would largely have been working alone.

21. Clearly such a client group would be extremely vulnerable to exploitation,

including financial exploitation. Mrs Johnson's evidence was that had Merry Hall

been aware of Ms Mhembere's convictions they would have regarded her as

posing so great a risk to the people in their care that they would not have

employed her.

22. We agree that because of her history of dishonesty, as evidenced by her

convictions, she presented a risk to vulnerable adults.

23. Thus we find that she was guilty of misconduct in providing false and misleading information to her employers, and that this misconduct placed vulnerable adults at risk.

Is she unsuitable to work with vulnerable adults

24. In the letter of dismissal which Mrs Johnson sent to Ms Mhembere she wrote: "I

am sorry that I have had to take this action as I believe you were a promising carer". Similarly, one of Ms Mhembere's references, from her team leader at Haven House, where she had previously been employed as a care assistant, described her as "very good towards residents, caring and understanding." There was nothing to suggest that she had ever behaved unkindly or unprofessionally towards those in her care.

25. Ms Mhembere told us that she acknowledged her past mistakes and that she was a

now a changed person.

26. Nevertheless, the evidence of her dishonesty is overwhelming. She was guilty of

a large number of offences, committed recently and over a sustained period and

involving a substantial sum of money. She compounded this dishonesty by

providing false and misleading information to her employers, to conceal her

history of convictions.

27. We could not accept that she was a changed person and that her honesty could

now be relied on, because, as we have found, she continued to give untruthful and inconsistent evidence to us in these proceedings. We therefore find that she is not a suitable person to care for vulnerable adults.

Decision

28. We find that the test, as set out in s86(3) of the Care Standards Act has been

satisfied. Ms Mhembere committed an act of misconduct by giving false

and misleading information in her application form, thus putting

vulnerable adults at risk. For the reasons set out above she is also unsuitable to

work with vulnerable adults.

29. It is therefore the unanimous decision of the tribunal that her appeal be dismissed.

Appeal dismissed

Dated: 12th November 2008

Ms Andrea Rivers

Mrs C. A. Alford

Mrs Wendy Stafford