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

 

Eric Rickerby

V

General Social Care Council

[2010]  1724.SW-SUS

 

Before

 

Miss Maureen Roberts, Tribunal Judge

Ms Margaret Diamond, Specialist Member

Mr Brian Cairns, Specialist Member

 

DECISION

Heard on 21 June 2010 at Darlington County Court Coniscliffe Road Darlington County Durham

 

Representation:  The Applicant was represented by Mr. C Swift of Counsel instructed by Clark Willis Solicitors.

 

The Respondent was represented by Ms V Tanchel of Counsel

 

APPEAL

 

1. The Applicant appeals against a decision made by the Preliminary Proceedings Committee (the PPC) of the Respondent on 20 January 2010. At that hearing the Committee reviewed a six month ISO imposed by the Respondent’s PCC on 24 July 2009 and decided to impose a further 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 of the General Social Care Council (Conduct) rules.

         

          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 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 ISO was continued. It can consider any additional information received by either party after the preliminary proceedings committee. It does not make any findings of fact.

 

THE BACKGROUND

            7. The Applicant qualified as a social worker in 1998. He has been involved in social care since 1995. The tribunal had a copy of a recent curriculum vitae prepared by him. Throughout his working life there have been no previous complaints about his work nor has he been subject to any disciplinary proceedings.

         

          8. Between November 2008 and March 2009 the Applicant worked for Wakefield Metropolitan Borough Council (WC). This was a position that he had obtained through an agency called Liquid Personnel. The Applicant finished his employment with Wakefield Metropolitan Borough Council. He says that he resigned from his post for a number of reasons including a high caseload and disagreements about procedure with his superiors.

         

          9. Wakefield Borough Council were unhappy about some aspects of the Applicants work and mentioned this to the employing agency. The agency, Liquid Personnel contacted the Respondent on 13 March 2009 and supplied information to them. The tribunal did not have any record of what was said in that telephone conversation.

 

10. In July 2009 the Respondent contacted Liquid Personnel and Wakefield Council by e-mail requesting further information about the concerns against the Applicant. Liquid Personnel replied that they no longer employed the Applicant and they had not been asked for a reference for him. They thought that the Applicant had joined another agency called Medicare First. This was in fact the case.

 

11. Wakefield Council replied to the Respondent on the 14 of July and said that they had serious concerns about the Applicant in relation to 5 separate issues; the most serious of which concerned the fact that he left a child alone with a perpetrator of sexual abuse during supervised contact after being expressly told that he should not do so. Other issues related to inappropriate conduct i.e. shouting at children. He had also sworn in the presence of an Ofsted inspector.They confirmed that no disciplinary proceedings had been instigated against the Applicant by them.

 

12. On 24 July 2009 the PPC met to consider the allegations made together with the supporting evidence at that time. The Applicant attended but was not represented. The committee decided that an ISO should be imposed on the Applicant for six months.

 

THE ALLEGATIONS

 

            13. The allegations against the Applicant as recorded by the committee are as follows:

          1. While working as a social worker and placed with Wakefield Metropolitan Borough Council between November 2008 and March 2009 you:

          a. Left a child alone with a perpetrator of sexual abuse during supervised contact, after being expressly told that you should not do this;

          b. repeatedly shouted at children within various settings;

          c. Swore at a child in the presence of an Ofsted inspector at Felkirk School;

          d. Made inappropriate comments to a birth father at a child protection conference;

          e. Used inappropriate terminology to explain why a young person was being taken into local authority care, saying that ‘he had buggered his brother’ or words to that effect;         

          f. Carried out poor quality assessments and case recordings, or did not record at all.

          2. When applying to register with Medicare in February 2009, you were dishonest in that you said you had been touring with a band since your employment with Doncaster had ended, when in fact you had been placed at Wakefield from November 2008 until March 2009.

          3. In relation to a CV you submitted to Medicare on 13 March 2009 you were dishonest in that you omitted your employment with Wakefield from November 2008 until March 2009.

 

THE DECISION OF THE PPC on the 20^th January 2010

 

          14. The PPC asked the Respondent’s presenting officer a number of questions regarding what additional evidence was before them as opposed to the PPC that met in July 2009. It was evident that two witness statements had been completed and signed just before the committee met and the Applicant had made a statement. The two witness statements did not contain new material but confirmed matters which had been outlined by those persons in July 2009. No statement had been obtained from LS the Applicant’s manager in Wakefield,who had been the sole source of evidence of the concerns to Liquid Personnel, as she was out of the country.

 

          15. The presenting officer was also asked about progress since the July 2009 meeting and about the delay in getting certain statements finalised. He was questioned about the evidential basis for the allegations made against the Applicant. It is fair to conclude that he was unable to assist the committee beyond what was contained in the documents before them. After some discussion the committee indicated that they would focus on the more serious allegations namely 1a, 1e, 2 and 3.

 

          16. The committee heard from the Applicant. The Applicant was not represented. In this decision we are confining our short summary of his submissions to the four allegations identified as serious, by the PCC. All the allegations in section 1 arise from the Applicant's dealings with one family.

 

17.  He gave his account regarding allegation 1a. The family concerned were a very troubled unit. In February 2009 the family comprised the father and two sons aged 11 and nine. The father had recently obtained a residence order in respect of the boys who had previously lived with their mother. The younger child had said that his brother had come into his bedroom naked and done ‘ disgusting things’ to him. Wakefield Council took the view that this was sexually inappropriate behaviour and the older child was placed in foster care. He was allowed contact with his father and in February 2009 the Applicant took the older child (the alleged perpetrator) to his family home for that contact to take place. When he arrived there the father would not let the Applicant into the house and the Applicant considered that he did not have legal powers to insist that he went in. He left the older child there saying he would return in half an hour. The younger child was not present in the house. The Applicant knew that the younger child was not in the house because he was at school; he also knew that he was likely to come back in about half an hour with another social worker. It was his view therefore that whilst the older child had been in the house with his father unsupervised the thrust of the instruction about supervision related to occasions when he was in the presence of his younger brother.

 

18. With respect to the allegation of 1e, the Applicant denied not only that he had not used the word (buggered) in the situation described but also that it was not a word that he used in his conversation generally. He said that the word he used was ‘bullied’.

 

19. Finally with reference to his nondisclosure of his work at Wakefield the Applicant said that he had first registered with Medicare in February 2009 while he was still working for Wakefield. No registration document has been provided by the agency Medicare. He said that if he had erred in terms of allegations 2 and 3 then he would apologise. He said he found himself in extremely difficult circumstances and was trying to move forward to other employment without being involved in a big argument with Wakefield Council. He clearly thought that LS his manager had been unsupportive of him and was acting ‘maliciously’ against him. He also said that he had in fact worked in his band during that time as well as working as a social worker.

 

20. The Applicant said that if the suspension order was ended he thought he would not go back to child protection work but would go back to working with people with substance abuse issues where he had worked in the past and enjoyed the work.

 

21. As noted above the committee decided to impose a further interim suspension order for a period of six months. It said that it had considered the impact on the Applicant. It recorded the four main allegations identified by the committee. It stated that it was not its purpose to make determinations of fact. Because the Applicant continued to maintain that he acted reasonably the committee concluded that there is “a real risk that the Applicant would repeat the behavior which is the subject of the allegations regarding the child’s visit and his application to register with the agency.”

 

22. The committee was satisfied that the protection of the public required that the Applicant be suspended from the register. It also noted that the committee is ’disappointed that more progress in the investigation has not been made since the last ISO was imposed and anticipates more progress in the coming months.’

 

           

SUBMISSIONS TO THE TRIBUNAL

 

            23. The tribunal had considerable documentation concerning the allegations. It also had the transcripts of the hearings before both the Preliminary Proceedings Committees and their decisions. We had the benefit of written and oral submissions from both sides.

 

          24. The Applicant accepted that the decision of the PPC on 24th of July 2009 was correct and he said that he acknowledged that the allegations were potentially serious. However he submitted that the committee in January 2010 had not looked at the basis of the ISO as drafted in July 2009 and had not considered adequately the delay in the Respondent's investigation and whether further time was needed to complete the investigation and if so how much.

 

          25. The Applicant gave us a helpful chronology of the investigation which started on 13 March 2009 with the telephone call from Liquid Personnel to the Respondent. On 11 July 2009 the Respondent asked Liquid Personnel for more information. On 14 July they had information from Wakefield Council as to their concerns. On 24 July 2009 the PPC imposed a six-month ISO. In October 2009 the case was allocated to an investigating officer. In November 2009 enquiries were made with Medicare and LS in relation to taking witness statements. In December 2009 a witness statement had been signed by a director of  Medicare and by the hearing in January 2010 three members of staff at Wakefield had given signed statements. However LS had not given a statement the reason being that she had left the country.

 

          26. In summary then, by the hearing on 10 January 2010, further evidence had been received on allegations !a !e 2 and 3. No further evidence had been received on the other allegations. It was noted as of the tribunal hearing date no further evidence was available for the tribunal. Though it was said that LS had now been contacted and a statement was being finalised from her.

 

          27. It was the Applicant’s submission that the ISO was wholly disproportionate to what was being alleged. In particular the Applicant pointed to the considerable delay in investigating the allegations. The matters had been raised with the Respondent in March 2009 and the investigations had not progressed with any expedition for nearly a year i.e. until the end of January 2010. In the Applicant's view there was a requirement on the Respondent to expedite enquiries and that it was not right for the committee to authorise a further six months without regard to the progress or lack of it that had been made in the investigation. The decision in January 2010 therefore was disproportionate and unreasonable.

 

          28. The Applicant gave the example of the allegation in 1a: this was potentially the most serious allegation but by January there was no evidence from LS or the father or the child.

 

          29. The Applicant acknowledged that the Respondent had a duty to investigate the matters and that the matter might go forward to a conduct committee but in terms of the ISO the PCC had to have regard to the evidential basis of the allegations and the conduct of the Respondent during the period of the ISO. The delay rendered the ISO of January disproportionate in light of the allegations and the evidential basis for them. Given the delays in the investigation by the Respondent these were such that the PCC had erred in not giving full consideration to this and in imposing a further ISO of six months.

 

          30. The Respondent reminded the tribunal that the purpose of an ISO is the protection of the public and the reputation of social workers. The ISO is to protect service users particularly those who are vulnerable such as children. The Respondent accepted that there was a balancing exercise of weighing the seriousness of the allegations with the credibility and weight of evidence. The Respondent accepted that there could be a situation where if the investigation was not being progressed it would be disproportionate to allow an ISO to continue.

 

          31. The Respondent submitted that it was public knowledge that there had been considerable delays and difficulties for the Respondent from the beginning of 2009 through to the third quarter of that year. The Respondent maintained that from July 2009 till March 2010 investigations were ongoing and draft witness statements being obtained. The Respondent stated that LS has now been traced and a witness statement from her was in the process of being finalized.

 

          32. The present position was that the investigations were nearly completed and that a preliminary investigation report would be produced and submitted to the Applicant. The investigating officer was about to go on leave so this might take a little while.

 

          33. In the Respondent's view however the critical consideration was the protection of the public and that the PPC had to balance the risk and public interest as against the prejudice to the Applicant of the ISO. The Respondent submitted that the Applicant had shown a lack of insight particularly in his failure to disclose his employment with Wakefield Council to the agency Medicare.

         

FINDINGS AND DECISION

 

34. Certain matters are agreed between the parties. Both sides agreed that the ISO imposed by the committee in July 2009 was proportionate. Both agreed that there are serious issues which need to be investigated. They also agreed on the chronology produced by the Applicant showing the timescale of the investigations. The Respondent sought to explain the reasons for the delay and acknowledged that there could be a point where the delay was such that it might tip the balance of proportionality in favour of the Applicant.

 

35. The transcript of the PPC in January 2010 shows that committee were concerned by the delay and also looked at the evidential basis for the allegations. They identified the four main allegations. They concluded that a further period of six months for an ISO was proportionate in the circumstances particularly for public interest and public protection reasons.

 

36. The Applicant has worked as a qualified social worker for 12 years and in the care sector for 14 years. As noted above there have been no disciplinary proceedings in relation to his work and no complaints about him prior to his working at Wakefield Council. The allegations all relate to one family. The Applicant clearly disagreed with his manager's handling of the family and the legal procedures used.

 

37. The tribunal noted that the evidence before the PPC in January 2010 was not much advanced from the evidence which the Respondent had in March 2009.

 

38. We are aware that we are looking at the decision of the January PPC and the legal requirements for that committee, and the tribunal, to be mindful when considering an ISO of the protection of the public interest and the reputation of the social work profession.

 

39. The tribunal looked at the allegations that were being made and the evidence about the allegations that was before the committee. We accept that neither the committee nor the tribunal is required to make findings of fact. There are issues that may well need to be investigated by a conduct committee. However the circumstances of the main allegations do not appear to the tribunal to be so serious as to warrant further imposition of six months ISO in January 2010 bearing in mind the length of time that the Respondents have had to investigate the issues which they say are ‘so serious’.

 

40. The tribunal concludes that on the issue of supervision of the younger child it could be argued that, technically, the instruction for ‘no unsupervised contact,’ was not breached but it is a matter that needs to be looked into further as to what the instructions were. The tribunal considers that the Applicant exercised professional judgement in the situation in which he found himself. The matter was one incident lasting half an hour and there is no evidence that any service user came to harm; it may be that it was a professional misjudgement but this will be a matter for further investigation. Presumably there are minutes of the Applicant’s supervision that should be available to the Respondent and a statement from the father.

 

41. The allegation 1e is a disagreement about one word and it may be that the evidence will be the word of the Applicant as against that of his fellow social worker.

 

42. The issue of not declaring his employment with Wakefield for four months is not helpful to the Applicant and is a matter which he has acknowledged was a mistake. It is no excuse, but bearing in mind his difficult relationship with LS at the end of his employment with Wakefield, it is understandable that he might not want LS to give a reference for him.

 

43. The tribunal therefore conclude that there is a lack of clarity on what exactly is being alleged against the Applicant. This matter took place over a short period of time, on an agency placement set in the context of a long career in social services. There were no disciplinary proceedings by Wakefield Council against him; he was not dismissed. He was not aware of the referral to the GSCC when he applied to Medicare First nor when he sent them his CV, nor when he was placed by them in a social work post with Hackney Council.

 

44. We make no findings as to the facts of the allegations; that task will be for a future hearing. The allegations were narrowed by the PPC in January and in view of the Applicant’s submissions regarding them we find there to be little likelihood that such actions would be repeated. We note the delay in the investigation by the Respondents: the matter was referred in March 2009 and limited progress had been made by the time of the hearing in January 2010. The matter is still not concluded. In the light of the above findings and on the written and oral evidence that we have read and heard we do not find that an Interim Suspension Order is necessary for the protection of the public, or is otherwise in the public interest or in the interests of the Registrant.

 

DECISION

           

          The appeal is allowed.

 

          The decision is unanimous.

         

          Miss Maureen Roberts (nominated tribunal judge)

          Ms Margaret Diamond (specialist member)

          Mr Brian Cairns (specialist member)