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

TR

V

General Social Care Council

[2009]  1653.SW-SUS

 

Before

 

Miss Maureen Roberts, Tribunal Judge

Mrs Susan Last, Specialist Member

Mr Chris Wakefield, Specialist Member

 

DECISION

Heard on 16 February 2010 at Birmingham Magistrates Court, Birmingham

 

Representation:  The Applicant was represented by Mr. M Barnes of FACT (Falsely Accused Carers and Teachers).

 

The Respondent was represented by Mr. S Larkin for the GSCC

 

APPEAL

 

1.     The Applicant appeals against a decision made by the Preliminary Proceedings Committee of the Respondent on 7 September 2009 to impose an Interim Suspension Order (ISO) for six months on the Applicant.

2.     The tribunal makes an order that the Applicant in these proceedings shall be referred to as TR and her partner as X. The identity of any service users who are referred to during this appeal are to be anonymised.

 

THE LAW

 

3.     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.

 

4.       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 herself.

           

            5. 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.

           

            6. 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.

           

            7. 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. It does not make any findings of fact.

 

THE BACKGROUND

 

            8. The Applicant qualified as a social worker in the late 1970’s. Before she qualified she worked at a children's home in Halifax. The manager of the home was X and this is where she first met X. At this point she was unqualified and X encouraged her to qualify as a social worker which she did. She moved away from Halifax and lost touch with X. She got married and she has worked as a social worker for over 30 years and has worked for Coventry City Council for over twenty years. She presently holds the post of Team leader in a children and families team for the Council.

           

            9. In the late 1990s West Yorkshire police contacted various people who had worked in the children’s home where X had been employed because they were investigating X and others who had worked at the home. Subsequently X was convicted, in 2001, of 13 indecent assaults and one charge of gross indecency against young girls aged 14 to 16 who had been at the home. He was the manager of the home where the girls resided and it was deemed that this was an abuse of his position of trust. He was sentenced to a term of imprisonment of seven years and was released after serving six years. TR did not give evidence at the trial. She made contact with X while he was in prison and wrote to him in prison. X was released, in 2006, and lived in his own home in Lincolnshire. TR formed a friendship with him. TR was divorced in 2008.

 

10. X is a convicted sex offender and is required to remain on the sex offenders list for life. He has to sign the list annually and inform the Police of his address. He has complied with these requirements.

 

11. In April/May 2008 TR and X rented a property together in the West Midlands and co-habited. At that time X remained under the jurisdiction of the Lincolnshire police. In February 2009 TR and X purchased a property together and informed the Lincolnshire police of their change of address.  At that point the supervision of X was transferred to the West Midlands police who visited TR and X at home. In the course of the visit the police asked TR whether she had informed her employer of her relationship with X. They told her that they would be informing her employer if she did not do so.

 

12. TR informed her employer of her relationship with X and on 7 April 2009 she was suspended by Coventry City Council. On 20 July 2009 Coventry City Council wrote to the Respondent informing them of the complaint which then led to the hearing at the Preliminary Proceedings Committee (PPC) and the decision by the Respondent to impose an Interim Suspension Order (ISO).

 

13. The tribunal was informed that Coventry City Council have concluded their initial investigation and that it is likely that the outcome of any disciplinary proceedings will be completed by April 2010. The Respondent has also issued TR with its initial investigation report.

 

THE ALLEGATIONS

           

            14. The allegations to the PPC stated that:

           

Whilst working as a team manager of a children's and family team with Coventry City Council, the registrant failed to safeguard children and Young Persons and other vulnerable persons and could thereby have brought the council and social work profession into disrepute, in that:

i.                 The registrant maintained a friendship with a male convicted child sex offender X which led to their setting up home together sometime after his release from prison in 2007.

ii.                The registrant failed to inform her manager at Coventry City Council of the relationship so that a proper risk assessment in respect of children and young persons, together with other vulnerable persons could be carried out and the conflict-of-interest between her personal and professional life assessed.

iii.               The registrant maintained the innocence of  X, which calls into question her professional judgement in failing to ensure there was no possible access to children and young persons and other vulnerable persons by  X, given the position of authority and trust that she holds as a manager of a children and families team.

These call into question her professional judgement and could bring the council and social work profession into disrepute.

 

15. The Respondent's committee (the PPC) imposed an interim suspension order. They were concerned at the gravity of the offences for which X had been convicted. They noted that TR had not notified her employer that she had set up home with X until told by the police to do so. The committee had ‘concerns in relation to the risk at which the registrant has put and continues to put vulnerable service users especially children by cohabiting with X’.  It was equally concerned about TR's belief in X's innocence in the face of a conviction at Crown Court. It considered that this might have an impact on her role as team manager and in making child protection decisions.

 

16. The committee went on to consider human rights arguments that had been put to it on article 6 and article 8 of the European Convention on Human Rights and addressed the issue of proportionality. They found there had been no breach of the articles in the proceedings before the committee. It considered that the ISO was proportionate for the protection of the public and in the wider public interest. These matters outweighed TR's own interests which they considered had been met by the hearing that they had conducted.

 

 

SUBMISSIONS TO THE TRIBUNAL

 

            17. The tribunal had considerable documentation concerning the allegations. It also had the transcript of the hearing before the Preliminary Proceedings Committee and its decision. Overall it was accepted that the basic facts of the situation were not in dispute.

 

            18. The Applicant appealed on the grounds that: The legal adviser to the committee had not followed her own advice; she had shown partiality; the committee had wrongly decided there had been no breach of article 6; the committee made a decision as to the Applicants guilt and, with reference to the ground of public interest, they did not consider the aspect of necessity in that the Applicant is suspended from work and has indicated she does not intend to seek employment until the matter is resolved.

 

            19. The Applicant made two statements to us. In the first one she outlined the chronology and history of her relationship with X. In particular she emphasised that the Lincolnshire police had not raised any concerns about her work and X’s status as a sex offender. She said that she had been shocked when, on moving to the West Midlands, the police there asked her questions about her work and had told her that she must report her relationship with X to her employers. She said she did not think that her belief in X had any bearing on her work. She reiterated that she would like to get back to work and that she would not do anything until the matter was resolved but that it would be a great help to her not to be on an ISO.

 

            20. In summing up her position and in answer to questions from the tribunal she reiterated that she did not think she had any compromising attitudes regarding safeguarding vulnerable people or children. She said that she knew herself and that she had worked for over 30 years in the care sector. She regarded her relationship with X as a private matter and that she had always kept her private life separate from her work life. She did not believe she would do anything to compromise her work or any children cared by her team.

 

            21. Her representative made submissions in support of the grounds of appeal and particularly addressed us on the issue of article 6 and the decision in the House of Lords decision of R (on the application of Wright and others) v Secretary of State for Health and another [2009] UKHL 3. That case involved an issue about provisional listing on the PoVA list without an opportunity for the potential listee being allowed to make representations. He also addressed us on article 8 issues of the Applicant's rights to a private and family life.

 

            22. The Respondent took the view that there was no breach of article 6 as the process and procedure for interim suspension orders is different to that involved with the PoVA and PoCA lists. He submitted that the legal adviser had acted quite correctly in her advice to the committee. Further the committee and its findings had been within its powers in making its decision.

 

23. In the Respondent's view the Applicant had shown a serious lack of judgement and conflict of interest in cohabiting with X and not reporting that cohabitation to her employer. The fact that she persisted in believing in X's innocence in the face of a conviction by a jury called into question her judgement in that she was substituting her own opinion for that of the court. Also it was possible that she may give advice to members of staff on the phone at home. In the Respondent’s submission there were issues of both the protection of the public and public confidence and upholding standards in the social work profession.  The public, knowing that a team manager for a children and families team, was living with a sex offender without informing her employer would shake public confidence in the service.

 

            24. The tribunal had a copy of the House of Lords decision of R (on the application of Wright and others) v Secretary of State for Health and another [2009] UKHL 3. In that decision the court makes clear that there had been a breach of article 6 when provisional listings to the Poca PoVA lists were made without any opportunity for the prospective person being listed to make representations. We agree with the decision of the tribunal in the case of McCarthy v the General Social Care Council that, “ it is accepted that the scheme under the General Social Care Council (conduct) rules 2008 is not directly comparable to the provisional listing scheme in that the procedure makes provision for initial representation and review. It should be noted however that this is limited to the issues raised by rule 12 (16) and does not allow the registrant to tackle the substantive allegations.” In that case there was concern and criticism about the length of time that the matter had taken to get to the various hearings. Those issues do not affect this decision.

 

           

CONCLUSIONS AND DECISION

           

            25. Having regard to the Respondent's duties and powers at the Preliminary Proceedings Committee and having read the transcript of the hearing, we do not accept that there was a breach of the Applicant’s article 6 rights at the Respondent's hearing. There was an oral hearing which followed the committee’s procedure.

 

            26. With respect to article 8 issues the Applicant's rights have to be balanced against her professional duties and the expectations of the public for children to be protected. We do not find that the actions of the Respondent were in breach of her article 8 rights.

 

            27. We have considerable sympathy with the Applicant.  There has been no criticism of her professional practice in her work. It does not appear that she acted in a deliberate attempt to conceal her relationship with Mr X  when she did not tell her employer of her relationship with him. She had decided that this was her own private business. There are issues of judgement and professional standards which will need to be explored in subsequent hearings.

 

            28. Bearing in mind that the Applicant is suspended from employment at present and has indicated that she will not work in the care services until this matter is concluded there is no real issue regarding the protection of the public. However in our view there is an issue with regard to public confidence.

           

            29. The employer in its complaint form stated that the allegations were potential breaches of Rules 2.1 (being honest and trustworthy), 2.6 (declaring issues that might create conflicts of interest and making sure that they do not influence your judgement or practice) and 5.8 (behave in a way in work or outside work which would call into question your suitability to work in social care services).

 

            30. Without making findings of fact we conclude that if proven the allegations do potentially amount to breaches of paragraphs 2.1, 2.6 and 5.8 of the Code of Practice for Social Care Workers.

 

            31. By the nature of an Interim Suspension Order the allegations are untested. We accept that the public would view the allegations as serious. There are a number of issues which need to be further explored in a full hearing. At this stage we conclude that there is the necessity for the ISO on the grounds of public interest and confidence. We further conclude that such order is proportionate in circumstances.

 

            32. We dismiss the appeal. We note that preliminary reports have been prepared both by the employer and by the Respondent and would trust that such steps as are necessary are taken to ensure that the investigations are completed within the six-month period so as to provide a final decision for the Applicant.

 

            DECISION

            The appeal is dismissed.

 

           

 

            Miss M Roberts (nominated tribunal judge)

            Mrs Susan Last (specialist member)

            Mr Chris Wakefield (specialist member)

 

            24 February 2010