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

DAVID HAADI SAMUFONDA

V

GSCC

[2011] 1883 SW

Before:

Judge Nancy Hillier

Specialist member Brian Cairns

Specialist member Gill MacGregor

Hearing date 28 June 2011

Appeal

1.     The Applicant appeals pursuant to section 68 of the Care Standards Act 2000 against a decision of the General Social Care Council (GSCC) to remove his name from the Social Care Register (the register). The decision was notified to him by letter dated the 18 April 2011. The reason given by the GSCC for the removal was the Applicant's failure to renew his registration in that he failed to pay the necessary renewal fee and submit a renewal application form by 31 January 2011.

Evidence

2.     The hearing was conducted by consent of both parties without their attendance. The Tribunal considered the bundle of 74 pages and the undated letter from the Applicant received by the Tribunal on 27 June 2011.

Preliminary matters

3.     The panel considered whether it was appropriate to admit the evidence contained in the Applicant’s letter received in Darlington the day before the hearing. This evidence was partly a repetition of the Applicant’s position that he had not received the relevant documents but the letter contained additional evidence that the packs are bulky and that at a former address his neighbour used to accept them for him. Further, the letter stated that he had moved to his current address on 30 September 2010.

4.     By directions issued on 6 June 2011 Judge Hillier extended the time for filing supplementary evidence to 24 June from 13 June, at the request of the Applicant. The panel noted that the Applicant had copied the letter to the Respondent, however when the administration checked whether it had been received they were informed that it had not. The Respondent had therefore not had any opportunity to respond prior to the hearing.

5.     The panel considered the overriding objective and the application of a fair and just approach and concluded that no prejudice would be caused to the Respondent by the admission of this evidence since it added to the chronology an important detail, namely the date of the Applicant’s move.

Facts

6.     The Applicant has been a social worker since 1988. It has been a requirement for him to be registered since 2005, therefore it would appear that he successfully completed a formal re-registration in early 2008.

7.     On 30 September 2010 he moved to a new address. On 11 November the GSCC wrote to the Applicant at his new registered address to remind him that his current registration expired on the 31 January 2011. A renewal application form was enclosed with the letter. On 9 February 2011 the GSCC again wrote to the Applicant at his registered address to inform him that his registration as a social worker expired on the 31 January 2011 warning him that if he did not submit his renewal application his name would be removed from the register. The letter drew the Applicants attention to the protected title of social worker and a copy of section 61 of the Care Standards Act 2000 was enclosed.

8.     The Respondent states that on 23 February 2011 the Applicant telephoned the Respondent to request a renewal pack. The Respondent agreed to dispatch a renewal pack but advised the Applicant that he was very close to being removed from the Register and he would be better advised to download the forms from the web. The Applicant denies this and says he telephoned in January when no mention was made of downloading a form.

9.     The Applicant was informed by letters sent to his registered address on 2 March and 18 April  that his name had been removed from the Register.

Relevant Law

10. By virtue of section 56 of the Care Standards Act 2000 (CSA), the Respondent maintains a register of social workers. Section 60 allows the Respondent, by way of rules, to make provision about the registration of persons applying to be included on the Register. The relevant rules here are. The General Social Care Council (Registration) Rules 2008

11. Rule 6(3) provides:

(3) No less than 28 days before the expiry of the period referred to in paragraph (1)(a) above, the Council shall send to the address of the Registrant, as it appears in the Register:

(a)          a notice of expiry of registration; and

(b)          an application form for renewal of registration.

Under “Service of documents”  rule 3  provides that the notice is to be sent  “by registered post or by a postal service in which delivery or receipt is recorded…”

Further, under Rule 9(2)

(2) Where -

(a) the Registrant has failed to make any application for renewal of the registration or to pay the renewal fee set out in Schedule 2… the Council may remove the Registrant's entry from the register;

12. An appeal against a decision of the Committee lies to the First Tier Tribunal under section 68 of the Care Standards Act 2000. On an appeal against a decision the Tribunal may confirm the decision or direct that it shall not have effect (s.68(2)). The burden is on the Respondent to demonstrate that the removal of the Applicant from the register was a reasonable exercise of discretion.

Applicant’s position

13.  Mr Samufonda states that he did not receive the letters of 11^th November 2010 , 9 February 2011 or 2 March 2011. He accepts that received the letter dated 18 April and states that he acted upon it by appealing to the tribunal on an undated form which was registered on 30 March 2011

14. He submits that the Respondent has not complied with the rules in that it has not sent the relevant notice and application form to him by registered or recorded delivery and has therefore wrongly applied its discretion under Rule 9 2(a)

Respondent’s position

15. The Respondent submits that it has complied with the notification requirements and that “It is clear that the Applicant was aware by the 12 November 2010 that the renewal date was the 31 January 2011” because the forms were sent to him on 11^th November.

16. The Respondent does not make any specific response to the Applicant’s assertion that it has failed to comply with the postal requirements in the rules but asserts that “The Respondent has complied with its statutory duties. The Applicant has an obligation to make sure that he completes a renewal application form within the prescribed timescale.” Further, it maintains that it has acted reasonably throughout and since the Applicant has not completed the form or paid the fee it was “perfectly entitled” to remove him from the register.

Tribunal’s conclusion and reasons

17. The panel concluded that the Respondent did not prove on the balance of probabilities and on the evidence supplied that it had complied with Rule 3 or that it had acted reasonably under Rule 9(2) in removing the Applicant from the register for the following reasons:

18. The Respondent has not acknowledged the Applicant’s submission that the GSCC has not complied with the postal notification rules. The Respondent has had ample opportunity to file evidence that the relevant documents were sent by registered or recorded delivery. It has not done so, despite filing a statement by Nicola Fox, the Business Manager of the registrations team. The panel were therefore not satisfied that the GSCC had complied with Regulation 3 and there was therefore no evidence to show that Mr Samufonda had received the notice and application form prior to the expiry of his registration on 31 January, nor since that time.

19.  Further, the Respondent has not submitted any evidence of the decision making process behind the exercise of its discretion under Rule 9(2) on or before 2 March 2011 to remove the Applicant from the Register. The letter dated 2 March simply records the fact of removal “as you have not renewed your registration”. The panel were satisfied that whether by a phone call in January or February from the Applicant the GSCC were aware that Mr Samufonda had stated that he had not received a pack and were therefore on notice of a potential problem by the time the discretion was exercised as notified on 2 March. There is no evidence to suggest that the Registrations team then checked that the pack had been sent by registered or recorded delivery in accordance with the rules or that compliance with the rules formed part of the decision making process. In such circumstances there is no evidence to show that the discretion was exercised appropriately, and the decision could not be supported.

20. The panel decided that the Respondent’s telephone advice (denied by Mr Samufonda) that a form could be downloaded from the internet does not absolve it from the primary obligations under the Rules to notify Mr Samufonda of the registration expiry date and to ensure that the form has been sent to him in accordance with rule 3. Only then does the burden move to him to ensure that he completes the form and sends it with the appropriate fee and relevant documentation to the GSCC before his registration expires.

21.  In the light of these conclusions the appeal is allowed, and the decision notified on 2 March 2011 shall have no effect. The effect will be that Mr Samufonda must be temporarily re registered. The GSCC must send him a notice (giving at least 28 days to comply under the spirit of Rule 6 (3)) and an application form in accordance with Rule 3. Mr Samufonda must then, if he wishes to renew his registration, submit the completed form, documentation and fee. If he fails to do so any decision taken pursuant to Rule 9(2)(a) can then be taken by the Respondent. The GSCC would be advised to check that Rule 3 is complied with under its current procedures for all renewals.

ORDER

Appeal allowed. The Respondent is directed to restore Mr Samufonda to the register pending submission of notice and application form to him in accordance with the rules.

Judge Nancy Hillier

Brian Cairns

Jill MacGregor

28 June 2011