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

 

 

 

In the First-tier Tribunal     

 

Between:               

JOHN DOWNEY

Appellant

V

 

General Social Care Council

          Respondent

 

[2010] 1794.SW

 

 

DECISION

 

Before: Tribunal Judge Meleri Tudur

             Mr David Braybrook (Specialist member)

             Ms Margaret Diamond (Specialist member)

 

Hearing held on the papers at Mowden Hall, Darlington on 6 October 2010.

 

APPEAL

 

1.       Mr Downey, (the Appellant) appeals under section 68 of the Care Standards Act 2000 against the decision of the Conduct Committee of the General Social Care Council (“the Respondent”) made on the 4 March 2010 to refuse his application for restoration to the Register of Social Workers.

 

The Law

2.       By virtue of section 56 of the Care Standards Act 2000 the Respondent maintains a Register of Social Workers.

 

3.       Section 58 of the Act provides (1) that the Respondent shall grant an application for registration as a social worker if it is satisfied that the applicant (a) is of good character (b) is physically and mentally fit to perform the work of a social worker and (c) satisfies the condition under subsection (2).  That subsection sets out the condition (a)(iii) that the applicant satisfies any requirements as to training which the GSCC may by rules impose in relation to social workers.

 

4.       The General Social Care Council (Registration) Rules 2008 set out the application process and the relevant considerations for the Respondent and the Committee.

 

5.       Rule 10(3) provides that an application for restoration to the Register shall be treated in the same way as an initial application for registration such that the requirements of Rule 4 apply.

 

6.       Rule 4(3)(a) overrides, inter alia, that an Applicant for registration shall supply evidence of his

 

(i)     good character as it relation to the Applicant’s fitness to practise the work expected of a social care worker

(ii)   Good conduct

 

7.       Rule 4(10)(a) provides that the GSCC shall grant the application for registration where it is satisfied inter alia of the Applicant’s good character and conduct

 

8.       Rule 14(2) provides that when the Respondent is not minded to grant an application for renewal of registration it shall refer it to the Registration Committee.

 

9.       Rule 18(5) states that where an Applicant has been convicted of a criminal offence a copy  of the certificate of conviction shall be conclusive proof of the conviction and the finding of fact upon which the conviction is based shall be admissible as proof of those facts.

 

10.     Otherwise, Rule 19 provides that the Committee shall decide any disputed issues of fact on the balance of probabilities.

11.     Rule 20(16) provides that the Committee may inter alia grant the application, refuse it or impose conditions on registration for a specified period.

 

12.     Rule 20(19) provides that in exercising its powers under subsection (16) the Committee shall act in accordance with the principle of proportionality.

 

13.     Appeals against the decision of the Committee lie to the First-tier Tribunal under section 68 of the Care Standards Act 2000.

 

14.     On an appeal, the Tribunal may confirm the decision or decide that it shall not have effect.

 

15.     The Tribunal shall also have power to vary any condition imposed, to direct that any such condition shall cease to have effect or direct that any such condition as it thinks fit shall have effect.

 

Background

16.     The Appellant was born in 1959 and attained a Certificate of Qualification in Social Work awarded by CCETSW in 1993.

 

17.     Thereafter he was registered as a social worker having declared to the Respondent a number of previous convictions dating back to 1976 including offences of violence and dishonesty.

 

18.     In 1976, the Appellant had been convicted at Blaenau Ffestiniog Magistrates’ Court of taking a motor vehicle without consent, driving without insurance and aiding and abetting a minor road traffic offence.

 

19.     In 1977, he had been convicted of three counts of theft by an employee at the Liverpool Magistrates’ Court.

 

20.     In 1986, he had been convicted of driving with excess alcohol at Liverpool Magistrates’ Court.

 

21.     In 1995, he had been convicted of assault occasioning actual bodily harm in Birmingham Magistrates’ Court.

 

22.     In 2004, the Appellant applied for registration and set out all of his previous convictions to that date.

 

23.     In a letter dated 21 November 2005, the Appellant also clarified that he had a conviction dating from 2003 for failing to pay road tax due to having insufficient funds for a tax disc and that he was bound over to keep the peace by Huyton Magistrates’ Court in 1994 in relation to a dispute with his wife.

 

24.     It was only after very careful consideration that registration was initially granted to the Appellant on the 14 December 2005.

 

25.     On the 14 December 2005, the Respondent wrote to the Appellant informing him that his application for registration had been granted but that the offences declared by him would be considered again if any further offences were to be declared by him in the future.  His good character for the purposes of continued registration would be reconsidered in the light of all the declared offences.

 

26.     On the 30 October 2008, the Appellant was further convicted of two further offences of dishonesty by making a false statement or representation to obtain benefit between 10 February 2003 and 15 July 2007.  The Appellant had pleaded guilty of failing to notify Liverpool City Council of a change of his circumstances namely the fact that he was in paid employment which would have affected his entitlement to the benefits he was receiving.

 

27.     The Appellant failed to renew his registration when it lapsed in December 2008. 

 

28.     The Appellant applied to be restored to the Register of Social Workers in November 2009 and he sought to suggest that he was in fact innocent of the offences and pleaded guilty due to the stress that he was under at the time.

 

29.     The Conduct Committee of the Respondent was bound by the fact of the convictions and took into account the prior offending in the context of the offences from 2008.  They concluded that they involved a range of criminal activity over a lengthy period of time.

 

30.     The offences of dishonesty in 2008 led the Conduct Committee to the conclusion that they could no longer be satisfied of the Appellant’s good character and conduct.

 

31.     The Appellant’s application received on the 6 August 2009 applying for restoration of his registration as a qualified social worker was refused and a letter of decision sent to the Appellant dated 9 March 2010.

 

32.       The Appellant appealed against the decision to the Tribunal on the 2 July 2010.

 

33.     Time for making the appeal was extended by decision issued 19 August 2010.

 

Evidence

34.     The Tribunal had before it the documentary evidence presented to the Registration Committee of the Respondent in support of the application for restoration to the register and the Respondent’s submissions in response to the appeal. 

 

35.     The Appellant had submitted short written representations in support of his appeal

 

The Appellant’s case

36.     In his written representations, the Appellant confirmed that he had in fact been convicted of five offences since 1976.  He submitted that the information presented to the Registration Committee had been inaccurate and unfounded leading to an unfair conclusion.

 

37.     The Appellant clarified the position in relation to the previous offences and provided detail about the most recent conviction.

 

38.     The conviction for dishonesty in 2008 resulted from a charge that the Appellant had failed to disclose a change of circumstances which would have led to his being ineligible for Housing Benefit which he had been paid from 2003 to 2008.

 

39.     The Appellant set out the sequence of events which led to the conviction.

 

40.     In 2005, the Appellant suffered an injury to his right knee and required an operation.  At the time he was employed in construction and was unable to work.  He made a claim for Incapacity Benefit and Housing Benefit.

 

41.     Housing Benefit was paid to the Housing Association directly by direct debit by the local authority.

 

42.     The Appellant returned to work and his partner returned his payment book for benefit to the Department for Work and Pensions and informed them in writing that he had returned to work in London.

 

43.     When he returned to Liverpool from a period of working in London, the Appellant requested a rent break from his Housing Association landlord in order to tide him over a further period of unemployment, on an undertaking that he would pay extra rent once he was working to cover the accrued arrears.  The landlord agreed to this course of action.

 

44.     In June 2008, the Appellant decided to vacate his flat and was informed by the landlord that Housing Benefit was still being paid on his behalf.

 

45.     The Appellant contacted the Housing Benefit department at Liverpool City Council and informed them that there had been an overpayment.  He requested that they liaise with the Housing Association to arrange repayment of the monies paid in error.

 

46.     Liverpool City Council conducted an investigation and the Appellant was charged with dishonesty on the basis that he had failed to disclose the change of circumstances leading to his being ineligible for payment.

 

47.     Initially, the Appellant pleaded not guilty to the alleged offences, but having attended the court on three occasions and suffering significant stress as a result of the delay in concluding the case, he was advised by his solicitor to plead guilty in order to bring the matter to a swift conclusion.  The Appellant was given a community penalty of 80 hours unpaid work.

 

48.     At the time, the Appellant was employed by the Wirral Youth Offending Service and he notified his employers of the situation and kept them informed throughout.  A risk assessment was made and following his conviction, the Appellant offered to tender his resignation from his post.  Despite his conviction, the employer continued to offer the Appellant a placement and he continues to be employed by them.

 

49.     In support of his application for restoration, the Appellant provided a copy of an email to the Respondent from Mr Steve Pimlett, which confirmed that the Wirral Youth Offending Service had undertaken a full risk assessment following the Appellant’s conviction and had concluded that he did not represent a risk to children and that his employment as a Youth Offending Service Worker was continuing.  Following an anonymous complaint to the service against Mr Downey based on his conviction, a further risk assessment had been undertaken by the head of service and again it had been concluded that there was no reason why he should not continue working as a Youth Offending Service Worker.

 

50.     Mr Downey presented in evidence a copy of the rent account statement for the period from June 2003 to July 2005 which showed the payments made and the increases made in the rent payments to cover the rent break that the Appellant had had when he was out of work.  The account showed several thousands of pounds credit, but the money stood in the Housing Association’s account and had not been claimed as a repayment to the Appellant.

 

The Respondent’s case

51.     On receiving the Appellant’s application for restoration to the register, the Respondent had noted that the application form contained a number of inaccuracies in relation to the Appellant’s previous convictions.

 

52.     Attention was drawn to the letter dated 14 December 2005 addressed to the Appellant which indicated that “the offences declared by you would be considered again if any further offences were to be declared by you in the future.  Your good character for the purposes of continued registration would be reconsidered in the light of all these declared offences.”

 

53.     Once notified of the further two charges of dishonesty, the Respondent took into consideration the fact that the victim of the offences was a local authority and stated that it was notable in terms of public confidence, as a social worker, he would be employed by a similar authority and such conduct would amount to an extremely serious breach of the Code of Practice for Social Care Workers.  Reference was also made to the Indicative Sanctions Guidance which presumes that the outcome of such proceedings would be removal from the Register.

 

54.     The conclusion that the Appellant was not of good character and conduct was based on that fact.

 

55.     The Notice of Decision recorded that the Committee had been advised by the legal adviser that they had the power to adjourn for oral submissions and that the Appellant could be provided with an opportunity to give oral evidence and for the parties to make oral submissions.  The committee decided not to adjourn for oral submissions.

 

56.     The committee recorded that the decision was finely balanced but concluded that the Appellant had not demonstrated that he was of sufficiently good character and conduct so as to be registered.

 

Tribunal’s conclusions with reasons

57.     We considered all the evidence presented in the tribunal bundle and noted that the Appellant had several previous offences spread over a considerable period of time.

 

58.     We noted that the Respondent had in 2005 allowed the Appellant to be registered as a social worker despite the convictions and had indicated that if there were further offences then his registration would be reconsidered in the light of all the previous offences and the relevant changes in circumstances.

 

59.  Following the disclosure by the Appellant of the further convictions, the Respondent decided that he was no longer of good character and conduct and that he should not be restored to the register of social workers.  We could not identify however from the Notice of Decision what steps the Respondent had taken to weigh the additional conviction and to investigate the facts leading to it to decide what difference it made to the Appellant’s suitability for registration, nor could we identify that the committee had considered whether it might be appropriate for it to adjourn to obtain further information about the situation before it reached its decision.

 

60.     We considered the evidence relating to the commissioning of the most recent offences:  the statement of rent account showed very clearly that the Appellant had continued to pay his rent, had increased the rent repayment in 2005 to repay the accrued arrears after his rent break and that the Housing Benefit had simply accrued in the Housing Association’s account.  The evidence supported the Appellant’s version of events and showed that he had not personally benefitted from the overpayment made to him.

 

61.     Furthermore, we noted that it was the Appellant who brought the matter to the attention of the local authority who was the alleged victim of the offence. We also noted that the fact that the payments were being made and that he had requested that they arrange repayment to themselves of the monies paid with the Housing Association.  If he had not brought the issue to the attention of the local authority, then the offences may not have come to light at all.

 

62.     We could not find evidence that the Registration Committee had taken these further matters into consideration in relation to the offences, and concluded that they had relied on the warning contained in the letter to the Appellant dated 14 December 2008 as a basis for concluding that any further conviction for any further offences would lead to his name being removed from the register or (as happened) to the application for his restoration to the register being refused.  The two dishonesty convictions in 2005 and 2009 to become conflated and had not considered the explanations offered for the circumstances leading to both convictions and the particularly telling fact that following the second conviction, the Appellant’s employer had concluded that it was not sufficiently serious for him to be dismissed from his post.

 

63.     We considered in detail the information contained in the Appellant’s evidence about the most recent convictions.  We noted that he had raised the issue of the overpayment with the local authority himself; that he did not appear to have made any attempt to remove any of the overpaid money into his own personal accounts and we could not identify how he was alleged to have benefitted from the payments made.

 

64.     Clearly, the Appellant was responsible for the technical failures to notify the local authority of a relevant change of circumstance and ultimately, given it was his responsibility to do so.  We considered however that the fact that he had brought the issue to the local authority’s attention himself, rather than been found out by someone else, and that the local authority had been repaid the amount of the overpayment were significantly mitigating factors.

 

65.     Bearing in mind that the Respondent had allowed the Appellant’s registration to continue despite the previous convictions, we concluded that there were sufficiently cogent mitigating factors in relation to these offences for the registration to continue, and as a result we have allowed the appeal.

 

66.     We regard the position now as it was at the time when the Respondent included the warning in their letter of 2008:  any further convictions of any description will inevitably lead to the whole issue of the Appellant’s suitability being considered afresh.

 

67.     This is the unanimous decision of us all.

 

ORDER

 

Appeal allowed.  The decision of 4 March 2010 shall not have effect.

 

Meleri Tudur Tribunal Judge

David Braybrook, Specialist Member

Margaret Diamond, Specialist Member

 

18 October 2010