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

 

 

IN THE FIRST TIER TRIBUNAL CASE NO: [2010] 1860.SW

 

BETWEEN:

VIVIAN AKHIGBE

Applicant

and

 

 

GENERAL SOCIAL CARE COUNCIL

Respondent

 

 

Tribunal

John Burrow – Judge

Mr Jim Lim – Specialist member

Mr Chris Wakefield – Specialist member

 

1.      Introduction

1.1            The appeal was heard at Pocock Street London SE1 0BW on 18 April  2011.  The General Social Care Council (GSCC)  was represented by Guy Michelwright of Blake Lapthorne, who called no witnesses.  Ms Akhibe appeared in person, was unrepresented and called one character witness, Ms Essien. 

 

1.2 In March 2007 Ms Akhigbe pleaded guilty to three counts concerned with the dishonest claiming of benefits.  She commenced a social work degree, and joined the GSCC as a student member but failed to report the convictions to her college or to the GSCC.  When she applied to be a full member the Registration Committee refused her application.  She appealed pursuant to Section 68 of the Care Standards Act 2000.

 

2.     The Hearing Bundle

2.1            The bundle consisted of 341 pages.  We took all this evidence into account, along with the evidence of Ms Essien and  submissions made in the hearing, in reaching our decision.

3.      Legal Considerations.

3.1 Under section 58(1) of the CSA 2000, an application to be included on the GSCC register shall be refused if the GSCC is not satisfied that the applicant is of good character or has not met the requirements as to conduct in the GSCC (Conduct ) Rules 2008.

 

3.2            Under Section 68 of the CSA 2000 the Tribunal may confirm the decision or direct that it shall not have effect.  It may not substitute its own decision for that of the Registration Committee, but it may impose conditions on any registration.

 

3.3            The burden is on the Appellant to demonstrate her competence and good character and that she is suitable for registration. The standard of proof is the civil standard, namely the balance of probabilities. 

 

 

4        The Grounds of Appeal

4.2            Ms Akhigbe’s grounds of appeal are set out in the Appeal Application Form dated 6 December 2010.  In summary the grounds are:-

-        The Registration Committee did not permit the Appellant to make oral submissions.

-        Mitigating factors should outweigh the concerns raised by the convictions.

-        The conduct is unlikely to be repeated

-        The failure to notify the convictions was not dishonest.

5.  The Evidence

5.1 Ms Akhigbe was registered as a student Social Worker in about November 2006.  In this period she was working part time and studying part time at Goldsmith College for the Social Work degree.  On the 9 November 2009 she applied to the GCSS to be admitted to the register as a Qualified Social Worker.  The application disclosed a conviction for “overpayment of housing benefit, dishonest representation on 20.3.07 at Camberwell Magistrates Court”. 

5.2 On a later Criminal Declaration Form dated 8 December 2009, Ms Akhigbe said she had received 40 hours Community Service Order (CSO) and that the offence had occurred in 2004.  She said she was a single parent at the time with many financial responsibilities.  She said she was naïve and was unsure how the benefit system operated. She said she was given wrong information by a friend and that if her income was low she could still work and claim housing benefit.  She said since the conviction her situation has changed in that she is in a better situation financially and the birth of her daughter had made her more responsible. 

5.3 On the Form she also said her daughter was born out of wedlock and that her parents had disowned her.  She had no support from her family or partner.  She suffered depression.  Currently she has reconciled with both her family and partner and had completed her social work studies. She disclosed some details of her convictions.

5.4 The GSCC wrote to Southwark Council for full details of the convictions. These showed that she had pleaded guilty to three offences. These were that between the 15^th  March 2004 and 5^th August 2004 she failed to notify the London Borough of Southwark of a change in circumstances which she knew would affect her entitlement to benefit.  Secondly on 6^th August 2004 that she furnished an application form for housing and council tax benefit which she knew to be false in that it failed to declare her income.  Thirdly, on the 1^st April 2005 she again furnished a housing and council tax benefit review form which she knew to be false in that it failed to declare her income.  These offenses were contrary 112(1)(b) of the Social Security Administration Act 1992 for which she received a Community Punishment Order of 40 hours and an Order to pay £200 costs.  She disclosed details showing she had completed the CSO.

 5.5 She also included a character reference from Margaret Essien stating she was “honest, hardworking, reliable and dedicated with high integrity, good character and high moral standards.”  A second character reference from Jane Frain, a tutor at Goldsmith University stated that Ms Frain had not come across anything which would give rise to concern to practise as a social worker.  She was described as generally reliable, honest and respectful.

5.6 On 14 July 2010 Ms Akhigbe’s application was referred to the Registration Committee for consideration, with the referral document noting that the applicant did not declare her convictions to her university or the GSCC while a student and also that differing accounts of her employment history had been submitted.  There was a recommendation that the application should be refused.

Registration Committee summary of facts

5.7 The summary of facts before the Registration Committee stated that the applicant was in receipt of housing benefit and council tax benefit from November 1996.  Her entitlement to benefits was determined in part by her level of income.  Up until March 2004 she worked at Printmasters as a cleaner earning £320 a month which she had declared on her claim form.  From 15^th March 2004 she worked at Guys Hospital under the name of Vivien Beaton which was the surname of her ex-partner.  Her income from Guys varied from £666 to £1246 per month which was not declared.  She failed to declare these changes to her income when she completed her claim form on the 6^th August 2004 and again when she completed a similar form when visited by a verification officer on 1^st April 2005.  She signed these two forms to confirm she was still working at Printmasters and on the August 2004 form that she had not used any other names.

5.8 She was interviewed under caution on 23^rd September 2005 when she denied using any other name, claimed that she was still working at Printmasters and had never worked at Guys.  She asked for an opportunity to seek legal advice and when re-interviewed on 3^rd November 2005 she admitted failing to declare the income from Guys knowing it was wrong at the time.  She received £3582.73 in housing and council tax benefit to which she was not entitled.  She stated she did not have any financial worries at the time.

 

5.9 It was further noted by the Registration Committee that on her application form for registration as a qualified social worker dated 30^th October 2009 she had submitted conflicting information about her employment record.  She failed to state that she worked as a cleaner for Printmasters up until 11^th March 2004, stating she had worked from December 2002 until May 2004 in various administrative roles for Plan Personnel Recruitment Agency.  Further, she failed to state she worked at Guy’s Hospital from 15^th March 2004, but instead that she worked as a customer service assistant at Marks and Spencers from July 2004 until December 2005 and then worked for Guy’s Hospital from February 2005 to date.

5.10 It was further noted that in her application form for student social workers dated 10^th November 2006 she stated that from February 1998 to February 2000 she worked as a customer service assistant for Marks and Spencers and from May 2002 she worked as an administrative assistant.  Further she stated from June 2002 to February 2003 she worked as a classroom assistant and then as a health care assistant until November 2006.

Ms Akhigbe’s submissions to the Registration Committee

5.11 On 30^th July 2010 Ms Akhigbe submitted a statement for consideration by the Registration Committee.  She referred to difficulties in her life, including the birth of her daughter and being disowned by her family.  She mentioned the child’s father had left her and she was without support.  She said she had behaved in an irresponsible and inappropriate manner in wrongly claiming benefit, but she had no other convictions.  In 2000 her partner returned, but the relationship became abusive and it ended again. 

5.12 She said she was facing financial hardship and took the job with Printmasters and claimed housing and council tax benefit.  She admitted applying for that job using her partner’s surname (which she referred to as her “married details”).  She said she had not been fraudulent or deceitful.  When she first started at Guys Hospital she had not declared her income because she had expected to work only part-time due to college commitments.  She said she became desperate and confused and was given wrong advice by friends and she continued claiming benefit. 

5.13 She said she was remorseful and that it was inevitable that she would get caught.  She said she admitted her guilt and completed her punishment. She said she acted out of character, was naïve and depressed following the death of her brother and niece. She said she handled her situation immaturely, but that she had now turned her life around.  She attends church and is part of the church welfare team taking care of homeless people.  She is also a volunteer in the ‘Befriending the Elderly Scheme’. 

5.14 In respect of her failure to declare her conviction to the university or the GSCC she said when she initially started her course she was not subject to any conviction and “there was nothing to declare to her university”.  She said she thought she only had to notify the university and the GSCC if she was on the POVA list or on the children or adult barred list.  She said she went wrong with her employment dates, saying she had just got the dates wrong.  She says she has learned many lessons and that accountability and honesty are important.  She says it would be a shame that the four years she devoted to her social worker course should be destroyed because of one past mistake which she would not repeat. In her letter of 22 May 2020 she suggested the situation was beyond her control.

Consideration by the Registration Committee

5.15 The GSCC Registration Committee sat to consider the case on 30^th September 2010.  In their findings the committee said they fully took into account the letter of 30^th July 2010 and gave her credit for the fact she had no convictions before or after these matters and gave her credit for the fact that she disclosed convictions on her application form.  However, they describe the convictions as serious offenses of dishonesty occurring over a lengthy period in 2004 and 2005. 

5.16 They said the sums of money were considerable and that it was important that the public were able to have confidence and trust in social workers.  It was further important that members of the profession acted at all times with honesty and integrity. They concluded the offending constituted serious dishonesty over a period of time with limited mitigation regarding the circumstances themselves and they further noted the failure to declare.  The committee were not satisfied the applicant had, at the current time, demonstrated she was of sufficiently good character and conduct to be registered.

GSCC grounds of Response

5.17         Ms Akhighbe appealed against that decision on the 13^th December 2010.  In Ms Akhighbe’s notice of appeal she referred to four grounds set out above.  In the response by the GSCC they dealt with these grounds as follows: Ground 1 -  Ms Akhighbe had initially requested an opportunity to make oral submissions on 19^th July 2010. In its first meeting to consider the case the committee adjourned for that purpose, however, on the 24^th August 2010 the appellant changed her mind and decided to proceed on the written documentation alone. 

 

5.18         In respect of the second and third grounds of appeal, the GSCC referred to the Indicative Sanctions Guidance (ISG) where it states that dishonesty, particularly when associated with professional practice, is so damaging to a registrant’s suitability and public confidence in social care services that removal should be presumed to be the appropriate outcome. 

 

5.19         The GSCC also referred to the case of Bolton v Law Society [(1994) 1WLR 512CA.]  “Lapses from the required high standard may take different forms and be of varying degrees.  The most serious involves proven dishonesty.  Considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. It often happens that a solicitor appearing before the Tribunal can adduce a wealth of glowing tributes and that the consequences of striking off will be little short of tragic, but the reputation of the profession is more important than the fortunes of any individual member.” 

 

5.20         The GSCC also referred to the case of Butt v SRA 2010[EWHC 1381(Admin)] which indicated that the principles in Bolton applied also in circumstances of an application for registration.  The GSCC asserted that there were no conditions which could be imposed upon the appellant’s registration which would be capable of having the effect of dealing with the adverse impact on the reputation of the profession if the appellant were granted registration.  In respect of Ground 4 – the GSCC does not suggest the appellant was dishonest in failing to disclose her convictions, although it was critical of her on this ground. 

 

5.21         In oral submissions on behalf of the GSCC these matters were reiterated.  It was asserted the burden is on the appellant to satisfy the Tribunal she is a person of suitable character to be registered with the GSCC.  In considering this issue the panel should apply the same principles in respect of an application to be registered as are applied in relation to a social worker already on the register.  In other words, the panel must be satisfied in respect of the tests set out in section 58 of the 2000 Act. 

 

5.22         The panel were not invited to find that Ms Akhigbe’s failure to report her convictions was dishonest.  However, attention was drawn to the fact that Ms Akhigbe had signed the declaration on the student social workers application on the 10^th November 2006 that she “agreed to tell the GSCC as soon as reasonably practicable about any changes to my personal details and events and that call into question my good character such as criminal convictions, criminal proceedings or cautions that I receive.”  While it might be the case that she did not have a conviction when the form was signed in November 2006, it was submitted there was a clear duty on her to inform the GSCC as soon as reasonably practicable after the convictions were imposed on the 20^th March 2007.  She therefore failed between that date and the 9^th November 2009, the date of the application for qualified social workers to disclose the convictions.

 

5.23         The factual background as set out above was reconsidered and it was submitted that the dishonest offending had continued for quite a significant period of time.  It was submitted that remarks in her mitigation to the effect that she was given incorrect information were inconsistent with her guilty plea to the criminal allegations under the Social Security Administration Act 1992 which were matters of dishonesty involving an admission that she knew what she was doing was dishonest by the standards of reasonable people. 

 

5.24         It was submitted that Ms Akhigbe has not thereby shown full insight into and acceptance of her dishonest behaviour and that she is seeking to minimise the gravity of her convictions.  In reference to the GSCC Indicative Sanction Guidance (ISG), while the dishonesty was not directly within a professional context, such dishonesty was fundamental to the integrity of the individual and reflects therefore on the profession as a whole. 

 

5.25         Social workers have significant trust placed on them by reason of the fact they deal with vulnerable service users and are often called on to take responsibility in low level financial matters.  To allow an individual with these convictions to register as a social worker would significantly adversely affect the reputation of the profession.  The test in Section 58.1(a ) which has to be met by Ms Akhigbe is not made out in these circumstances.  It was further submitted that there are no conditions which could ameliorate the injury to the reputation of the profession. 

5.26 It was submitted in respect of the testimonials that the case of Bolton suggested only limited weight could be given to them.

6.      Submissions on behalf of the Appellant

6.1            Ms Akhigbe made submissions at the hearing rather than give evidence herself.  She largely reiterated points made in her letter of 30th July 2010. She said she accepted she had committed a serious offence.  She again reiterated the challenges and difficulties she was experiencing at the time, including the birth of her daughter and the isolation from her family and partner.  She described her actions as naïve and careless.  She pointed out that when she first applied for housing benefit in 1996 she was entitled to it and it was only with her employment at Guys Hospital in 2004 that it became wrongful. 

 

6.2            She said she had substantial debts at the time, and that she had received erroneous advice.   She was depressed and she said she panicked.  She reiterated the reasons why she had not notified the GSCC, namely that she thought that requirement only applied in respect of the POVA or the barred list.  She had not received the court summons and only heard of the charges when she was subsequently contacted by the police.  It had not occurred to her to disclose the matters to the university.  She said she had used the name Beaton because it was her married name and it was not used with any intent to defraud. 

 

6.3            She said she now accepted the gravity of what had happened and she was not putting blame on other people.  She reiterated that all these matters occurred quite a while ago and it was her only offence.  She said she paid the price and it was all too much drama.  She said she worked for Hackney Social Services in a support role.  She suggested her convictions assisted her in her ability to give advice to clients.  She is currently five months pregnant.  She said it would be a shame if she cannot use her qualification in her chosen profession.  She said she had not allowed the convictions to prevent her from moving forward.  She said, “everyone makes mistakes.”  She said she would not reoffend because as she put it, “the drama is not worth it.” 

 

6.4            In answer to questions from the panel about similar phrases that occurred in several of the references, she accepted that she had provided a format for these references.  When asked about why she had continued to claim housing benefit she said she had obtained advice from the Housing Benefit Office about working part time with a low income and thereby enabling her to claim housing benefit. 

 

7.      Evidence of Ms Essien

7.1            Ms Akhigbe called Ms Essien as a witness.  They were members of the same church and Ms Essien had worked with Ms Akhigbe through the church.  In her letter she had written on Ms Akhigbe’s behalf on 5^th August 2010 she described her as “hard working, reliable and dedicated and as a person of high integrity, good character and high moral standards.”  When questioned it became apparent that Ms Akhigbe had not provided her with the full details of her convictions, which she had only heard for the first time in the hearing.  Ms Essien said that had she known these details earlier, she would not have described her as honest, although she had been honest when they worked together. 

7.2 As part of the evidence in the bundle Ms Akhigbe submitted a letter dated 7^th December 2010 to the Tribunal which reiterated the matters set out in the letter of the 30^th July 2010 to the Registration Committee of the GSCC.  In addition she submitted ten character references from church members, an employment agent and work colleagues in which she is described as committed, reliable, honest, dedicated, of high integrity and good character and a loyal, hardworking, considerate and supportive friend. 

 

8.      Consideration by the Panel

8.1            The Panel considered the evidence with care.  We agreed with the Registration Committee that the convictions demonstrated a significant period of recurring dishonesty.  We did not accept that Ms Akhigbe had claimed benefit in ignorance of the statutory restrictions or that she had done it because of erroneous advice.  We concluded that her actions were in accordance with her guilty plea – that she knew what she was doing was wrong and dishonest. 

 

8.2            Furthermore we noted her use of a different surname when she sought employment to as to that which she used to claim benefit, and we concluded this was indicative of the planned and deliberate nature of her actions.  Her dishonesty was in our view persistent and serious, involving a sum of £3582.  While the dishonesty was not directly associated with her profession, it did concern matters – claiming benefits -  upon which she would be likely to advise as a social worker.

 

8.3            We noted she had signed an undertaking about the necessity to report to the GSCC matters which called into question her good character.  At the time she signed this declaration she had already been interviewed under caution twice about these matters.  Furthermore, she pleaded guilty in March 2007 and the matters should have been reported then.  While we do not find her actions in failing to disclose the convictions dishonest, we did conclude that there was a serious failure to meet her responsibilities to her regulatory body, which of necessity has to rely on compliance with such undertakings.

 

8.4            Furthermore we considered that a number of her remarks in mitigation such as seeking to blame others for incorrect information and characterising her actions as naïve and that the situation was beyond her control, or was “too much drama”,  demonstrated in our view that she did not have full insight into her actions.  Full insight in our view would require a full acceptance of the seriousness of her actions and of her responsibility for committing them. 

 

 

8.5            We gave Ms Akhigbe all the credit we could in respect of her otherwise good record, the fact she pleaded guilty to the offences and eventually declared them in her full application,  her voluntary and social work  since the offences, the difficulties in her home circumstances and her other mitigation. We gave what weight we properly could to her character references, taking into account the fact Ms Essien had not been given the full facts of the offences and that some of the references contained identical wording.  We had regard to the ISG and to the judgement of Bolton in considering the testimonials.

 

8.6            We considered conditions but concluded that in a matter of dishonesty such as this there were no conditions which could ensure there would be no re - occurrence.  We had regard to the ISG and took into account the aggravating and mitigating factors set out in it.  We had regard to the proportionality of the Registration Committee’s decision.  Taking into account all the matters set out above we concluded that  Ms Akhigbe had failed to show she was of sufficiently good character for the purposes of  Section 58.1(a) of the 2000 Act and that the Registration Committee’s decision to refuse registration was correct.  We unanimously dismissed the appeal. 

 

John Burrow

 

Judge HESC/CST

26 April  2011