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

Robert Roach

V

General Social Care Council

[2009]  1601.SW-SUS

Before

Miss Maureen Roberts, Tribunal Judge

Mr Graham Harper, Specialist Member

Ms Michele Tynan, Specialist Member

DECISION

The Tribunal sat on 12^th January 2010 in the Civil Justice Centre Manchester to consider the case on the papers before it.

The tribunal had a bundle prepared for the hearing by the Respondent. This included  the appeal, the response to the appeal, the full transcript of the hearing before the Preliminary Proceedings Committee and various documents from the investigation of the incident in question. Following the Directions hearing on the 16 December 2009 the tribunal were assisted by an updated appeal statement by the Applicant and a Further Response from the Respondent.

APPEAL

      1. The Applicant appeals against a decision made by the Preliminary Proceedings Committee of the Respondent on 28 July 2009 to impose an Interim Suspension Order (ISO) for six months on the Applicant.

THE LAW

            2. The Respondent's power to impose an ISO is provided by Rule 5, (Function of committees) of the General Social Care Council (Conduct) Rules 2008.

            3.  These provide that before any order is made, the committee must be satisfied that such an order is necessary for the protection of members of the public, or is otherwise in the public interest, or is in the interests of the registrant (the Applicant in these proceedings) himself.

            4. The committee should bear in mind the effects of any sanction on the registrant and whether it would be proportionate. The need for the protection of the public, particularly service users, and the maintenance of the public's confidence in social care provision must be balanced against the consequences of an ISO for the registrant.

            5. The committee should consider the seriousness of the allegations, and any evidence relating to the likelihood of any further incidents of harm, particularly to service users, occurring in the period before the final disposal of the complaint. An ISO is an interim measure and lasts in the first instance for six months.

            6. The appeal against the ISO is brought to the tribunal under section 68 of the Care Standards Act 2000. The powers of the tribunal at an appeal against an ISO are the same as the Preliminary Proceedings Committee in that it considers the gravity of the allegations and the nature of the evidence, the risk of harm to members of the public, the wider public interest and the prejudice to the Applicant if the order was continued. It can consider any additional information received by either party after the Preliminary Proceedings Committee (PPC). It does not make any findings of fact.

THE BACKGROUND

            7. The Applicant is 66 years old and has been qualified as a social worker since 1971. He worked for over 30 years in the probation service. He took early retirement from that service in 2004 and initially worked for an agency. In February 2005 he was taken on as a member of the bank staff to work for Cafcass. As he explained the situation to the Respondents PPC this meant he was on a zero hours contract; the bank staff were sometimes known as the flexible workforce and the arrangement was that they were given individual items of work to assist the full-time staff. The applicant worked from home, in Warrington, and his Cafcass office base was in Warrington.

            8. In December 2007 the Applicant was appointed as the worker to prepare a report for the court in respect of the P family. On the 22nd of February 2008 the Applicant filed a report with the Family Court in accordance with section 7 of the Children Act 1989 in respect of the two children AP and OP aged seven and three. In that report, which the tribunal had, he stated that he had “received returns from routine safeguarding checks with Halton Social Services Department and Cheshire Constabulary.”

            9. It is not in dispute, and has always been accepted by the Applicant, that no police check had been undertaken and that he did not ensure that the police check had been done. The Family Court gave a residence order to the mother and a contact order for the father. On 15 June 2008 the father had the children for contact on Father's Day. He killed the children and himself by carbon monoxide poisoning in his car.

            10. The incident was the subject of a Serious Case Review, and a Cafcass management review. Neither the PPC nor the tribunal had seen these two reports. However both bodies had the contemporaneous notes of an investigation meeting with the Applicant on 16 September 2008. The tribunal, but not the PPC, also had the investigating officer’s report under the Performance and Conduct Procedures of Cafcass in relation to the work of the Applicant in the case of the P children; this was completed by Sue Ashton and dated 11 November 2008. Both documents were helpful and certainly indicated the issues that were addressed by the Serious Case review and the internal management review. By July 2008 it was known that the police check was, in fact, clear.

            11. The Applicant was suspended from his position with Cafcass on 31 July 2008 and on 15 September 2008 Cafcass made a referral to the Respondent. The tribunal did not see the letter of referral and the grounds for the referral, but it did see a letter dated 23 February 2009 addressed to the Applicant which referred to the letter of 15 September 2008 and recorded the outcome of the Cafcass disciplinary hearing.

            12. That letter, of 23 February 2009 concluded that the Applicant would receive a final written warning for his failure to carry out the police check and for stating in a report to the court that he had received this check. The letter lifted the Applicant’s suspension and said that prior to any work being allocated to him as a bank worker he would need to undertake some further training and checks on his capability under the Cafcass performance and conduct policy and procedures.

            13. Subsequently the Applicant resigned from his position with Cafcass on 7 April 2009. He has indicated that he has no intention of working in the social care sector.

 THE HEARING BEFORE THE PRELIMINARY PROCEEDINGS COMMITTEE

            14. The General Social Care Council (Conduct) Rules 2008 provide that except in the case of an ‘urgent application’ the Applicant shall have seven days notice of the Preliminary Proceedings Committee hearing. The Applicant did not have such notice in this case. He received a notice on 25 July 2009 (a Saturday) that the PPC was to consider the application for an Interim Suspension Order (ISO) at a hearing on 28 July 2009 in London.

            15. In the course of the hearing the Applicant was asked whether he had found the short timescale a problem in preparing his case. The Applicant replied that he was satisfied that he had been able to prepare for the hearing. However he did say that he had found it disturbing that 13 months after the tragedy, 12 months after the disciplinary proceedings, five months after those proceedings had been concluded and three months after he had resigned from his job that he received a letter on a Saturday morning telling him that the hearing regarding the ISO was to be on the following Tuesday.

            16. The Applicant attended the hearing. He was not represented. He gave his evidence as clearly and truthfully as he could to the committee. He certainly accepted that he had failed to do the police check or to check that it had been done, in this case, and understood that such a failure could have very serious consequences. He explained that he had met the children and the other parties involved in the tragedy. He understood the concern from Cafcass and the public and accepted the disciplinary process and outcome of that investigation.

            17. The PCC concluded, “ that the registrant failed to carry out necessary safeguarding checks and subsequently misled the family court by indicating that those checks had been carried out… this was demonstrated by the evidence… this was an extremely serious matter. Moreover the registrant acknowledged that he was aware that in the past there have been administrative failures in making the necessary checks with regard to other cases and despite this awareness failed to ensure that such checks had been made in the case of the P family. The committee considered this to be an aggravating factor and failures of this nature are so serious and present such a risk that the committee considered that it was necessary to impose an interim suspension order to ensure that the public was protected.” The committee noted that there was no adverse effect on the Applicant from the ISO. Further, the committee considered that it was in the public interest to impose an ISO in that the applicant had been in breach of trust when he reported to the court as an officer of the court.

            18. The Applicant has appealed against the ISO. In summary he has cited three main grounds.

            (a). The invalid basis for bringing the case; the Applicant believes that the PPC did not have all the documents that they should have had; that there were other appropriate documents from Cafcass which they should have seen.

            (b). The manner in which the hearing was conducted; the Applicant complained that the PPC hearing was hostile and disbelieving.

            (c) . The finding that the Applicant was aware of previous administrative failures; the Applicant explained to the PPC the administrative system for obtaining police checks. The Applicant explained to the PPC and in his appeal that whilst he was aware of occasions when a check had not been done, this had been ‘flagged up’ by the administrative staff. There had been a change in the system, when it had been computerized, which meant that the absence of reports was more difficult to monitor. The Applicant reiterated that the incident involving the P family was a one off mistake.

            19. As noted above the PPC understood his evidence to amount to an admission, not necessarily, that the Applicant had failed to get checks in other cases, but that knowing of the difficulties in the system he had not been consciously diligent to check that the police check had been done in this case.

DECISION OF THE TRIBUNAL

            20. The tribunal is mindful of the fact that it has not heard from the Applicant in person and that the PPC had the benefit of hearing from him and weighing his oral evidence. We did have the benefit of the transcript of the proceedings.

            21. The tribunal noted the Applicant's reply to a question about other cases involving police checks. He had said that it had “happened previously when police checks were not done. One or two occasions, no dates of birth available.” We accept that this reply is somewhat ambiguous.

            22. The Applicant has sought strenuously since the PPC hearing, to explain that he was talking about previous administrative reasons why checks had sometimes not come back. He says he was trying to explain why a police check might not be received and that he had never before stated that the check had been received when it had not been. It was his evidence to the PPC and in his appeal that the failure in the P case was a one off incident. This issue with certain other matters would need to be investigated by the full conduct committee hearing in due course.

            23. On the papers before the tribunal and the PPC the undisputed evidence is that the Applicant failed to carry out a police check or ensure that the administrative staff had done so, and stated in a report to the court that he had done that check. The Applicant always acknowledged his responsibility for this mistake and that this was a grave mistake on his part. He accepted the disciplinary action by his employers.

            24. The fact that the Cafcass reinstated the Applicant  in work indicates that they did not regard him as a risk to the public and felt that it was in order for him to continue in practice as a social worker after some additional training. It is evident that Cafcass have investigated the management system concerning the Applicant and bank workers generally. This again is a matter that could well form part of the proceedings in a final hearing.

            25. On a number of occasions to the PPC, in his appeal form, and in his latest statement the Applicant states that he is not intending to work in the social care sector. In his last statement he says,” I am willing to make a commitment not to seek work in social care pending any further action by GSCC.” The tribunal accepts that commitment from the applicant.

            26. On the information before the PCC and the tribunal the ISO is not in the interests of the Applicant, bearing in mind his age and commitment not to do further work on the social care sector. For the same reasons it is not necessary for the protection of members of the public. That leaves the issue of the public interest. Clearly this matter has been a high-profile case covered by the media when it occurred. However bearing in mind the Applicant's unblemished work record, his frank acknowledgment of the mistake he made and the fact that he is not intending to work in that sector again the tribunal concluded that the Interim Suspension Order is not in the public interest.

            The appeal is allowed.

            The decision is unanimous

            Ms Maureen Roberts

            Ms Michele Tynan

            Mr Graham Harper

            20^th January 2010