In the Care Standards Tribunal

 

Between

 

JB

Applicant

-v-

 

GENERAL SOCIAL CARE COUNCIL

 

Respondent

 

 

[2010 1839. SW – SUS]

 

Panel:

Tribunal Judge – Melanie Lewis

Mrs Carol Caporn (Specialist Member)

Mr David Griffiths (Specialist Member)

 

JB did not attend the hearing. He was not represented.

Mr Hepworth, Counsel represented the Respondent.

 

Hearing held at Employment Tribunal, Kingsway, London WC2B 6EX. 3 February 2011. Oral decision with written reasons to follow.

 

Decision

The  appeal is  dismissed.

The decision of the Preliminary Proceedings Committee dated 12 January 2011 is upheld.

 

 

 

Appeal

 

1.               JB (‘the Applicant’) appeals under Section 68 of the Care Standards Act 2000 against the decision of the Preliminary Proceeding Committee (PPC) of the General Social Care Council (‘the Respondent’) made on 15 September 2010 to impose a further Interim Suspension Order ( ISO)  upon the Applicant for a period of four months. A further Interim Suspension Order was imposed on 12 January 2011 for a period of eight months. The first ISO was imposed on 22 September 2009.

 

 

2. Following discussion, Mr. Hepworth agreed that we should treat the Directions made on 9 December 2010 by Tribunal Judge Meleri Tudur, following a  telephone case management hearing as as an appeal against  the extension made on 12 January 2011.   

 

The Law

 

3. By virtue of section 56 of the Care Standards Act 2000 the

Respondent maintains a register of social workers and section 59

allows the Respondent to determine the circumstances by which an

individual can be sanctioned and removed from the Register. The

relevant rules for the purposes of this case are the General Social

Care Council (Conduct) Rules 2008.

 

4. Rule 5 of the General Social Care Council (Conduct) Rules 2008

provides that it shall be the duty of the Preliminary Proceedings

Committee (PPC) to consider an application by the Respondent for an

ISO and decide whether the making of such an order is

(a) necessary for the protection of members of the public;

(b) otherwise in the public interest;

(c) in the interests of the Registrant concerned.

 

5. Where the decision is made to impose an ISO, Rule 5(2) provides that

the initial duration shall not exceed six months.  Rule 5(3) provides that the total period of suspension shall not exceed 2 years.

 

6.    Section 68 of the Care Standards Act 2000 provides that an appeal

against a decision in respect of registration shall lie to the Tribunal.

 

7. On appeal, section 68(2) provides that the Tribunal may confirm the

decision or direct that it shall not have effect. It follows from section 68 that the Tribunal does not have power to hear a case de novo and apply to the Appellant whatever sanction it considers appropriate.

 

8. The powers of the Tribunal on appeal against an ISO are the same as

the PPC 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 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. It can consider any additional information received by either party after the PPC. It does not make findings of fact.

 

The Hearing:

 

9. The Applicant did not attend the hearing. We noted that he had not attended the hearing before the PPC Committee on 12 January 2011. The Tribunal satisfied themselves that he had had due notice at his last notified address, as required by rule 13 (5)  of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008. Accordingly we concluded that it was in the interests of justice to proceed pursuant to Rule 27 2008 rules, in the absence of the appellant. At the conclusion of the hearing we gave an oral decision as we are permitted to do under rule 30 2008 Rules, but we must give our written reasons within three working days in a suspension case. 

 

10. On 4 February 2011, the Applicant sent a submission by email to the tribunal at 10.20am, asking for an adjournment, to give him more time to prepare his case.  He was telephoned by the administration to say that the hearing had concluded the day before. In these submissions, he stated that owing to bailiff action and substantial rent arrears he had not returned home in case his landlord learnt of his situation and terminated his tenancy. He gave no other address and the email was sent from an internet cafe.  He was on anti depressants, but only because he had had to deal with a number of different proceedings. He had severe financial problems. 

 

11. The late submission was forwarded to the Respondent for their response. Their position was that they assumed that the oral decision would stand and that the Applicant would have to apply for a review under rule 45 (3)  2008  rules.  If an application for a review was made then they would be invited to make submissions on it. That is correct.  We had not made a final decision until our written reasons were sent out.  However, the information in the late submission did not cause us to revise the conclusion reached the previous day that we should proceed to hear the case in the absence of the Applicant.

 

12. In particular, the Applicant had taken part in the telephone case management hearing on 9 December 2010 when the date for the hearing was discussed.  The directions made by Tribunal Judge Tudur were sent to the Applicant at his last notified address giving the hearing date, time and that it would be at a venue in London. The confirmation of the venue was issued to all parties on 27 January 2011, again giving the date and time of the hearing.  Accordingly we were satisfied that he had been notified of the hearing and we could proceed.

 

 

13. Mr.  Hepworth told us that the GSCC had tried to contact the Applicant  by email, telephone and that the bundle was  sent by recorded delivery, but had not been collected from the post office ,when it had not proved possible to deliver it. The address held by the GSCC was the same as on our files.  The Applicant’s non-engagement with the application to extend the ISO, on 12 January 2011, followed other concerns by his employer and the GSCC in locating and/or contacting him even though dates have been agreed in advance.

 

14. The Applicant did not comply with  Paragraph 1 of the Directions made on 9 December 2010  to send all further documents on which he relied by 5pm by 15 December 2010. There was no specific direction to create an audio CD of recordings of conversation he had with his managers, which is what the Applicant appears to have understood was required of him and he gives as a reason for delay in his late submissions. Further Paragraph 2 directed him to send copies directly to the GSCC so that it could be considered on 12 January. 2011.  He did not do so but the PCC committee on 12 January 2011 did consider a large bundle of evidence which he had submitted late on 15 September 2011, which they declined to consider on that occasion. We noted that the Applicant had then said that although correspondence was sent to the right address he did not receive it for some time. Accordingly there was some delay in him having the opportunity to consider the evidence. In his submission dated 4 February 2010, he says the same thing, albeit raising a query that the GSCC have at times incorrectly used his mother’s address, when he had asked them to revert to his address.

 

15. We rejected Mr Hepworth’s primary position that we could dismiss the appeal without a detailed consideration of the evidence in the light of the Applicant’s non-engagement before us and the GSCC. He submitted we could do so in accordance with the overriding objectives. We are an independent appeal body and the appeal to us, whilst it reflected submissions to the GSCC, needed to be considered separately. 

 

The Decision:

 

16. The  PCC decision was that it was satisfied that it was necessary for the protection of the public to impose a further ISO on 12 January 2011,  It considered that the material placed  before it was capable of establishing that the Registrant consistently failed to respond to direct management instructions, procedures and advice in connection with important aspects of his duties. In particular the PCC noted that there was material to suggest that the Registrant had acted inappropriately with service users, and failed to meet agreed time scales. Despite the delay and the effect that had on the Registrant a further ISO for 8 months remained proportionate.

 

The Evidence

 

17. In accordance with directions issued on 9 December 2010 the respondent had filed a bundle running to some 794 pages which we carefully considered. Mr Hepworth took us to the most relevant parts, where the decisions were recorded and the documents that had been considered.  

 

18. In December 2009 the Applicant attended a disciplinary  committee of his then employers, the London Borough of Tower Hamlets. They investigated allegations,

 

(i)              that he had not followed management instructions and/or advice/procedures,

(ii)             his consumption of alcohol exceeded safe levels,

(iii)            he did not complete work on time or within agreed timescales,

(iv)           he did not account for his hours of work as required,

(v)             he did not follow corporate procedures,

(vi)           he did not make contact with staff to tell them about his movements during the working day,

(vii)          he acted aggressively towards work colleagues,

(viii)         he sought to gain access to the borough’s IT system contrary to the terms of his suspension.

 

19. The Applicant was dismissed for gross misconduct.  On 15 September 2010 the PCC committee took account of the fact that this was the first hearing the Applicant had attended, albeit in person without a representative, but it was his opportunity to put his case to a PCC who had had the opportunity to read his submissions. The committee, as we must, reminded itself that it was not conducting a fact finding exercise. The issue was whether an ISO was necessary for the protection of members of the public and was in the public interest. The committee was satisfied that it was in the light of the Applicant’s dismissal for gross misconduct. The committee was concerned by the slow progress of the investigation and granted a 4 month suspension rather than the 8  months requested in the application.

 

20. The same issues were before the PPC on 12 January 2011, when  Mr Hepworth appeared for the GSCC. The transcript records that he again addressed the reasons for the delay in this case. The case was still under investigation. It has still not been considered , as to whether there was a realistic prospect of finding misconduct if the matter were to be referred to the Conduct Committee. An explanation was clearly needed for the delay. Mr. Hepworth said progress was being made.  The investigating officer had interviewed six out of eight witnesses. We were told that the remaining two witnesses should have signed their witness statements in the next day or two. The GSCC had changed its procedure and no longer relied on hearsay evidence, therefore it was necessary to get witness statements. A further reason for delay was that there had been four investigating officers for the GSCC attached to the case. There had been some difficulty in getting full co-operation with the Applicant’s former employer. We note that the Chairman of the PPC committee commented, as we did, that even if there were reasons for the delay, this was not an unduly complex case requiring in-depth investigation. We were also concerned that the witnesses’ evidence would become more unreliable as time went on.

 

21. The Applicant does not accept any of the reasons for his dismissal. He complains of a lack of support and a mis-understanding of his way of working, which was very child focussed and had an academic methodology behind it. There was a concern that his reports were overlong and overdue and did not address the issues in a social work context. When asked how much he was drinking, he had said 100 units per week but this was a rough estimate, which on reflection he knew could not be correct. He had never been drunk whilst at work but did acknowledge that the  unreasonable demands placed on him, including working very late into the evening meant he drank more than was good for him.

 

22. The papers referred to the Applicant making an application to the Employment Tribunal for Unfair Dismissal. We are not aware of the outcome of those proceedings, if indeed they have concluded. 

 

Conclusion and Reasons

 

23. At the end of the proceedings we announced our decision which was to dismiss the appeal and uphold the Interim Order and we now give our reasons in writing.

 

24. We have carefully considered the points made by Applicant in his notice of appeal.  Essentially they are an attack on the merits of the decision to dismiss him on the grounds of gross mis-conduct, which he does not accept were made out.  He does not accept any of the allegations so all issues are at large. 

 

25. The Applicant complains that the PCC committee failed to give adequate reasons for their decision.  We are satisfied that was not the case. They looked at the allegations, reminded themselves that they were not there to find facts but to consider whether the evidence was capable of constituting a referral to the Conduct Committee and a real risk if not actual harm to  public safety.  Their reasons are short, as are  ours, simply because it was not their task to make detailed findings of fact on each and every allegation.

 

26. The Applicant quite rightly draws attention to the delay in appointing investigating officers and the length of time which has elapsed. We are satisfied that the committee of the PPC had this at the forefront of their minds.  We remind ourselves of the effect of the delay which should in our view always be considered. However, it cannot be the overriding factor, although it may be relevant to proportionality. We still have to address whether an order is necessary.

 

27. The transcripts of the PPC on 15 September 2010 and 12 January 2011 show that the committee were concerned by the delay and also looked at the evidential basis for the allegations. They concluded on both occasions that a further four and then eight months of an ISO were proportionate in the circumstances, in particular due to public interest and public protection issues.

 

28. We look at whether the ISO was proportionate.  The Applicant qualified as a social worker in 2002 but only started to work in that capacity in 2007. He is therefore not someone who can point to a long period of experience, where no complaints were made against him.

 

29. Also the fact that he has worked in other capacities means that he is not denied a living, only that he cannot work as a Social Worker.

 

30. The Tribunal were satisfied that progress has been made in bringing the investigation to a conclusion. The evidence before the PPC in January 2011 was advanced from that heard in September 2010, in that the taking of witness statements was nearly concluded.

 

31. We are aware that there have been a number of recent decisions of the Tribunal in relation to ISOs and the issue of delay but those cases all turned on their own facts.  Each case must be determined on its own facts and a decision of a first instance tribunal cannot be a precedent.  Each case is fact-sensitive but this case can clearly be distinguished from cases where conduct or a course of conduct is accepted.  The Applicant has referred to other cases found on the Tribunal web site but again they turn on their own facts and many relate to decisions of the Conduct not the PPC Committee.

 

32. This is a case where there is a large factual dispute. We are satisfied that in view of the number and gravity of the allegations which arose in a relatively short period that an ISO was both necessary and proportionate.

 

 

 

 

Melanie Lewis

Tribunal Judge