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

 

 

Maxine Boodhoo

v

General Social Care Council

[2010] 1776.SW- SUS

 

Before

 

Miss Maureen Roberts, Tribunal Judge

Mrs Elena Fowler, Specialist Member

Mr Christopher Wakefield, Specialist Member

 

 

DECISION

 

Heard on 11^th October 2010 at the Asylum and Immigration Chamber Piccadilly Exchange 1^st Floor 2 Piccadilly Plaza Manchester M1 4AH.

 

Representation:  The Applicant was represented by Mr. Ben Williams of Counsel.

 

The Respondent was represented by Mr. Stephen Brassington of Counsel

 

APPEAL

 

1.     The Applicant appeals against a decision made by the Respondent on 19 April 2010 to suspend her from the Register of Social Workers for a period of 18 months.  The Appeal is made under S68 of the Care Standards Act 2002.  It is for the Care Standards Tribunal ("the CST") to confirm that decision or to direct that it shall not have effect:  see section 68(2) of the Care Standards Act 2000.

 

THE BACKGROUND

 

2.     The Applicant qualified as a social worker in October 1990. In October 2003 she was employed by the NSPCC and subsequently appointed as a children's services manager in Manchester. The Applicant was issued with a mobile telephone in order to assist with her work for the charity.

3.     In January 2006 guidance was issued in respect of the use of  work  mobile phones to make private calls. The policy stated that,” if a staff member wishes to make private calls from their NSPCC phone or Blackberry, they will be required to take out the line 2 option offered by our current phone provider. There are to be no private calls made on the Society's lines with the exception of calls to the emergency services. “

4.     The policy also stated that “mobile phones issued for business criteria will be reviewed every six months to ensure that the call volume is appropriate to justify the payment of line rental.” A regular six monthly spreadsheet gave some detail of mobile phone use; this ceased in August 2006.

5.     In February 2008 it came to the attention of senior management of the NSPCC that there was an overspend in respect of the mobile phones in the Applicant's office. This was investigated by the Applicant’s line manager and initially she obtained records for the Applicant's work mobile phone from June 2007 to March 2008. This revealed that a large number of calls had been made to a small number of mobile phones. These calls were private calls.

6.     After further investigation and a disciplinary hearing the Applicant was summarily dismissed from her appointment on the grounds of gross misconduct. The Applicant's dismissal took place on 20 May 2008. There was a final further internal appeal and an application to the employment tribunal neither of which were successful.

7.     On 7 May 2008 the matter was referred by the NSPCC to the Respondent.

8.     At this time the Applicant checked, with the Respondent, that she was still allowed to obtain employment and obtained another job as a social worker.

9.     On 9 October 2009 the Respondent determined that the matter constituted a complaint and wrote to the Applicant saying that she would be contacted by the Committee Services Team regarding details of the “proposed ISO Hearing and process.” She was then invited, at short notice to the Preliminary Proceedings Committee (PPC). She did not attend nor was she represented at that hearing. She thought that it was a committee to take an initial review of her case. On 21 October 2009 that committee imposed an ISO ( Interim Suspension Order) for six months.

10.  On 19 April 2010 the Respondent’s Conduct Committee met. The Applicant attended and was represented by her union. At the conclusion of the hearing the committee imposed an 18 month suspension order.

11.  It is against this order that the Applicant appeals.

 

THE LAW

 

12.  The decision of the GSCC's Conduct Committee was made under S59 of the Care Standards Act 2000 (CSA) coupled with the General Social Care Council (Conduct) Rules 2008 (the Rules).

13.  Section 59, Removal etc from register of the CSA provides:

 

(1) Each Council shall by rules determine circumstances in which, and the means by which –

(a) a person may be removed from a part of the register, whether or not for a specified period;

(b) a person who has been removed from a part of the register may be restored to that part;

(c) a person's registration in a part of the register may be suspended for a specified period;

(d) the suspension of a person's registration in a part of the register may be terminated;

(e) an entry in a part of the register may be removed, altered or restored.

 

(2) The rules shall make provision as to the procedure to be followed, and the rules of evidence to be observed, in proceedings brought for the purposes of the rules, whether before the Council or any committee of the Council.

 

(3) The rules shall provide for such proceedings to be in public except in such cases (if any) as the rules may specify.

 

(4)             Where a person's registration in a part of the register is suspended under subsection |(1)(c), he shall be treated as not being registered in that part notwithstanding that his name still appears in It.

 

PROCEDURE OF THE CONDUCT COMMITTEE OF THE GSCC

 

14.  The Conduct Committee operates under the GSCC (Conduct) Rules 2008. These provide that formal allegations are put to the Applicant and the Applicant is asked if she admits those allegations.

15.  The formal allegations were as follows:

1.     While employed by the NSPCC as a children's services manager, between April 2006 and March 2008 you

(a)   used  your NSPCC phone for unauthorised personal use;

(b)   accrued call charges in, or around, the sum of £384.18; and

(c)   did not reimburse your employer for the cost of personal calls;

2.     Your conduct as set out in paragraph 1 was dishonest.

And, in relation to the above facts, you have committed misconduct.

16.  The Applicant admitted charges 1 (a) (b) and (c) but denied that she had acted dishonestly or been guilty of misconduct.

17.  After hearing submissions the Respondent's Conduct Committee made a finding that misconduct was proved. The Applicant’s representative then conceded, on her behalf, that misconduct was established on the basis that her honesty and integrity had been impugned.

18.  Both sides then addressed the Conduct Committee regarding the issue of the appropriate sanction and the committee decided to suspend the Applicant for a period of 18 months.

 

 

 

THE DECISION OF THE GSCC CONDUCT COMMITTEE

 

19.  In coming to a decision on the sanction the Committee is guided by its own rules and the Indicative Sanctions Guide. We have attached the checklist from the guide in respect of dishonesty to this decision.

20.  Upon a finding of misconduct the Conduct Committee may admonish the registrant for a period of up to 5 years, make an order suspending the registrant's registration for a period not exceeding two years or make an order for the removal of the registrant.

21.  The rules provide:

In accordance with Rule 25(2) of Schedule 2 of the Rules, "In deciding what sanction is to be imposed, the Committee shall take into account:

a.  the seriousness of the Registrant's Misconduct;

b. the protection of the public;

c.  the public interest in maintaining confidence in social care services;and

 d.  the issue of proportionality."

22.  Both sides addressed the Conduct Committee regarding the issue of the appropriate sanction. For the GSCC, the presenting officer indicated that a suspension would be an appropriate sanction. For the Applicant her representative pointed out that she had already been suspended for six months and felt that no further sanction was required.

23.  The committee decided to suspend the Registrant for a period of 18 months. It said “ this was a serious and sustained course of misbehaviour, displaying a lack of honesty and integrity. Such behaviour strikes at the heart of the social care profession. However, the Registrant's actions did not directly affect any users of social care services and the Committee took account of the Registrant's previous good character and positive work record. No criticism was made by the council of any other aspect of the Registrant's integrity. In the absence of any direct evidence on the point, the committee felt unable to attach any weight to the suggestion made on her behalf that the Registrant's conduct had been caused by stress or other extraneous issues.”

24.  The Committee went on to note that it had considered whether removal from the register was necessary but had decided against that sanction on the basis that “the misconduct identified here, whilst serious, fell within a relatively narrow scope. Crucially it did not directly involve service users and the Committee accepted that the Registrant had displayed commitment to her profession over a number of years. “The sanction of suspension was appropriate and proportionate in order to safeguard public trust and confidence  in social care services and to maintain high standards of conduct among social workers.”

 

 

THE EVIDENCE AND SUBMISSIONS

 

25.  The tribunal had the benefit of reading the bundle which had been prepared for the Respondent's Conduct Committee including the disciplinary proceedings of the NSPCC. We also had a transcript of the conduct hearing and the notice of the decision and reasons of the Conduct Committee.

26.  The tribunal was assisted by counsel for both parties who had greatly narrowed the issues before the tribunal. Both sides accepted that there had been misconduct and that the issue before the tribunal was the appropriateness and proportionality of the sanction imposed by the Respondent's Committee.

27.  On this point we were addressed by both sides in respect of the powers of the tribunal. When considering the issue of the sanction imposed by the Respondent’s Conduct Committee, the tribunal has taken the view that section 68 does not give the power to substitute an alternative sanction. Section 68 of the CSA, as noted above, states that the tribunal shall confirm the decision of the Respondent or direct that it shall not have effect.

28.  The tribunal noted that in a recent decision of  Borley v The Care Council for Wales [2010] 1731. SW, the tribunal took the view under section 68 (3) (a) ” that the tribunal shall have power on an appeal against a decision to vary any condition for the time being in force in respect of the person to whom the appeal relates.” The tribunal in that case took the view that a sanction of an admonishment of five years was a condition and on the facts of that case ordered that the length of time of the admonishment be reduced to one year.

29.  Neither counsel submitted that the tribunal in this instance should follow that precedent. Both counsel addressed the issue and suggested that the tribunal should use rule 2 (2) (b) under the tribunal's own rules to enable an alternative sanction to be imposed if that were to be the decision of the tribunal. Rule 2 of the Tribunal Procedure (First-tier tribunal) (Health Education and Social Care Chamber) Rules 2008 states that the overriding objective of these rules is to enable tribunal deal with cases fairly and justly. Dealing with cases fairly and justly includes rule 2 (2) b) “avoiding unnecessary formality and seeking flexibility in the proceedings.”

30.  The tribunal would hesitate to use this rule to fill a gap in the statutory scheme. However as is recorded in the conclusions and decision below the rule is being used to achieve a fair and just outcome to these proceedings.

31.  The Applicant submitted that she accepted that she was using the phone for personal use. She clearly struggled with accepting that this use had been dishonest. She said that if it was to be labelled as dishonest then it was at the lower end of any dishonesty spectrum. She noted that the Respondent’s Committee had noted that the dishonesty was of ‘narrow scope’. She had endeavoured to pay back the money by sending a cheque to her in employers for considerably more than the final sum turned out to be.

32.  The Applicant accepted that it was important for public trust and confidence to be maintained in social care and that this in turn meant high standards of conduct from the profession. She submitted that the only issue in this case was one of “confidence in social care services” in terms of upholding proper standards of behaviour.

33.  The Applicant further pointed out that it had taken the respondent 18 months to decide that the referral was a complaint, during which time she had  obtained alternative employment which, after the suspension on 21 October 2009, she then had to give up. She had been suspended under an ISO for six months. She submitted that it was disproportionate to impose a further 18 month suspension on her.

34.  The Applicant underlined her length of service with no previous complaint; the relatively small amount of money involved and the fact that she had always acknowledged she had used the phone for personal calls. In her submission there was no risk of reoffending. There was no risk to service users.

35.  For  the Respondent it was submitted that 18 months was entirely appropriate and proportionate. In its view the Applicant had shown a complete lack of insight and that her actions amounted to her taking money from her employer. It was a clear case of dishonesty.

36.  The Respondent pointed out that the ISO was not a final disposal of the matter. The PPC in making an ISO considers whether it is “necessary for the protection of members of the public; otherwise in the public interest; in the interests of the Registrant concerned.” The initial duration of an ISO is for up to six months.

37.  The Respondent reminded the tribunal that in professional proceedings personal mitigation lays less heavily than in other courts. In respect of dishonesty, such as this, the starting point would be suspension. The Respondent stated that the purpose of the sanction was not to punish the Applicant.

38.  Both sides agreed that a period of suspension was an appropriate sanction. The issue was the length of the period and to what extent the delay in investigating the matter and the ISO could be taken into account.

 

 CONCLUSION AND DECISION

 

39.  In all the circumstances of this case we conclude that the sanction applied was too severe. The Applicant is a mature woman who has been working as a social worker since 1990 with no previous concerns about her professional work.

40.  We noted, as recorded above, that until August 2006 the Applicant had had a printout every six months of all the calls that were made. Her use appears to have increased after this printout was not provided to her. This does not excuse her actions but it made it more difficult for her to keep track of her use. The sum of money involved was small and she had made every effort to pay it back. She had in fact paid a cheque for over £700 to her employers but for various reasons they had returned this to her.

41.  There have been considerable delays in the administration of this case by the Respondent. As noted above it took the Respondent 18 months to decide that the referral was a complaint. Then, within two weeks it had convened a Preliminary Proceedings Committee and imposed an ISO. It appears evident to the tribunal that the Applicant did not appreciate the importance of this committee and that is why she did not attend. During the eighteen months prior to the PPC ‘s imposition of the ISO  the Applicant had obtained further employment which she had carried out without any concern. In fact she produced a supportive reference from that employer to the Respondent’s Conduct Committee.

42.  The Applicant had a six-month ISO imposed upon her which meant she lost her then employment. The tribunal acknowledges that the ISO has a different function to the final sanction. However the effect for the Applicant is the same.

43.  The Applicant acted wrongly and foolishly in this case however in light of what she has said and the mitigating factors as set out in the GSCC’s own ISG we do not consider the failings so serious as to warrant her continued suspension from the register.

44.  In these circumstances bearing in mind the mitigating circumstances we do not find that a suspension of 18 months was proportionate. Both sides invited the tribunal to indicate a suitable period of suspension and, submitted that the tribunal could use its own rules to achieve this result.

45.   As noted above we hesitate to impose an alternative sanction. However, we consider, in dealing with the matter fairly and justly under Rule 2 and rule 2 (2) (b), of the tribunal rules, we can take into account the overall length of time involved and the fact that the Applicant has, in reality, had an additional six month sanction of suspension i.e. from 19 April 2010 to the date of this hearing. The suspension (both ISO and subsequent six months) that the Applicant has ‘served’ has been sufficient to mark the seriousness of what she did and to achieve the purpose of the sanction by preventing the Applicant from working in her profession and confirming the high standards of honesty expected from the profession.

46.  In terms of protection of the public and the public interest we accept that the Applicant has learnt her lesson and that there is very little risk of her acting in such a way again.

47.   In view of the overall length of time that the Applicant has had this matter hanging over her and the fact that she had had a six month ISO we are allowing the appeal and directing that the sanction of 18 months imposed by the Respondent shall not have effect.

48.   We therefore allow the appeal. 

 

APPEAL ALLOWED.

Our decision is unanimous

 

 

 

Maureen Roberts

Elena Fowler

Christopher Wakefield

 October 2010

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SCHEDULE FROM ISG for GCSS

 

DISHONESTY – FRAUD/THEFT

 

 

Mitigating Aggravating Factor factor

 

Direct theft from service user No Yes

 

Abusing position of trust No Yes

 

Implications of actions Minor Direct evidence of harm

(eg theft from employer resulting in reduced

funding for service user care)

 

Location Outside work At work

 

Value of property stolen Low High

 

Frequency of actions Low High

(including previous history)

 

Method Minor Aggravated

(eg violence, threats working with others)

 

Planned Opportunistic Highly prepared

 

 

Remorse Paid back No insight

 

Deliberate targeting of vulnerable No Yes

 

Done to feed drug habit No Yes

 

Intent Small scale Large scale

(ie how much did they intend to steal?)