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

FRANCES ROBERTSON

Applicant

AND

GENERAL SOCIAL CARE COUNCIL

Respondent

[2011] 1931.SW

BEFORE

Judge Nancy Hillier

Mrs Jenny Lowcock

Ms Bridget Graham

Heard on 26 April 2012

Manchester AIC

DECISION

Representation

For The Applicant: Ms Robertson was represented by Mr Martin Weinbren

For The Respondent: Mr John Hepworth, solicitor.

Appeal

1.     The Applicant appeals pursuant to Section 68 of the Care Standards Act 2000 against the decision of the General Social Care Council (GSCC) Registration Committee (the Committee) dated the 12 December 2011 to renew her registration as a social worker subject to a condition.

The Law

2.     Section 56 of the Care Standards Act 2000 requires the Respondent to maintain a register of social workers and Section 58 provides the circumstances in which an applicant should be registered. If certain requirements as to character, education and conduct are fulfilled the applicant must be registered, “either unconditionally or subject to such conditions as it thinks fit…”

3.     Section 68 of the Care Standards Act 2000 provides that an appeal shall lie to this Tribunal against a decision of the committee and that on appeal the Tribunal may confirm the decision or direct that it shall not have effect. Under s68(3) the panel may vary, remove or impose any condition on the applicant’s registration as they see fit.

The hearing.

4.     The matter was listed for an oral hearing. The panel heard the submissions of both representatives and the oral evidence of Ms Robertson herself. The Tribunal also considered the bundle of evidence running to nearly 600 pages and evidence submitted by Ms Robertson on the day of the hearing, including a copy of an agreed reference from Lancashire County Council (the LA), a reference from DCS Fylde and a letter in respect of a job application from Cumbria County Council to Ms Robertson.

Burden and Standard of Proof

5.     It is for the Applicant to demonstrate that the decision of the Committee in respect of the imposition of the condition was wrong. The Tribunal does not approach an appeal completely afresh; we must still pay careful attention to the reasons given for the decision of the Committee at first instance.

Background

6.     The Applicant was first registered as a social worker on 10 November 2004. She began working for Lancashire County Council in March 2006 and became a Substance Misuse Worker on 1 April 2007. Between January and September 2009 complaints were raised about Ms Robertson’s written work and about her attitude towards some service users. These were investigated and pursued by the Applicant's line manager, a man against whom she had raised significant grievances, some of which were upheld.

7.     The Applicant underwent capability procedures and at a hearing on 17 May 2011 she was dismissed. Ms Robertson commenced proceedings in the Employment Tribunal, which were settled on 6 June 2011 by a confidential compromise agreement which included a reference from Lancashire County Council to be used if requested by a prospective employer. That reference does not refer to her dismissal. Ms Robertson self referred to the GSCC.

8.     On 1 November 2010 Ms Robertson applied to renew her registration. There was a significant delay until the decision made on 12 December 2011 which granted Ms Robertson registration provided she provided any prospective employer with a copy of a letter sent to her on 24 May 2010 setting out the findings of the Capability hearing.

Parties’ positions and submissions

9.     The parties are agreed that the only matter in issue is the issue of the condition. Neither party challenges the Committee finding that the Applicant should be registered, nor that the condition itself would lapse at the end of July when the GSCC ceases to exist.

10. Mr Hepworth submitted that the condition requiring production of the letter was reasonable, because although it referred to a view that Ms Robertson was not capable of undertaking the role of a social worker, that view was specific to her role at Lancashire and Ms Robertson could explain the circumstances and the subsequent developments in respect of the Employment Tribunal to any prospective employer.

11. Mr Hepworth submitted that the dismissal was significant and serious, going to the heart of social care practice with the potential to undermine the reputation of the profession and to undermine the maintenance of public confidence in the standards expected of a social worker and as such the condition was fair and proportionate.

12. Ms Robertson stated that the effect of the condition is to prevent her from obtaining employment, which Mr Weinbren submitted is not only unfair but goes against the fundamental premise of registration. He stated that once the Committee decided that she should be registered they should not impose a disproportionate condition which makes the registration meaningless because Ms Robertson cannot get a job as a social worker.

Ms Robertson’s evidence

13. Ms Robertson said that since she cannot and would not conceal the fact of her dismissal – it is plainly stated on her Curriculum Vitae as required by standards of professional honesty -  she did not feel that the Committee should have imposed any condition upon her.

14. Ms Robertson has attended job interviews and has explained that she was sacked by Lancashire and spoken about the steps she has taken to address the issues of written work clarity and attitude to disappointed service users. She had been successful in obtaining a position with another Local Authority who had told her that they were impressed with her skills and had started the reference process. The offer had been subsequently rescinded following a communication from the GSCC which has subsequently become untraceable. Similarly, job agencies had said they did not wish to put her forward with the condition attached to her registration, and are awaiting the outcome of this appeal.

Conclusions

15. We considered all the evidence, both oral and written, and the submissions made by both parties and applied the law as set out above. We concluded that the condition was unnecessary, disproportionate, unfair and out of date and we therefore decided that it should be removed from Ms Robertson’s GSCC registration.

16. Ms Robertson applied to renew her registration on 1 November 2010 and there was an unjustified and significant delay until the decision made on 12 December 2011.  This may have led to the fact that the Committee granted Ms Robertson registration provided she provided any prospective employer with a copy of a letter sent to her on 24 May 2010 setting out the findings of the Capability hearing, without apparently giving any weight to the significant change in circumstances which had taken place in between, namely the settlement of June 2011. It is not necessary to speculate upon why the Local Authority chose to compromise matters, but the compromise reference makes no mention of incompetence. We note that the GSCC did not refer the matter to its Conduct Committee at any stage.

17. We are satisfied on a balance of probabilities that Ms Robertson cannot get a job as a Social Worker whilst the condition is in place, because of its content, setting out the findings of the capability hearing.

18. We were concerned that there was little or no explanation given by the Committee of the reasoning behind the imposition of the condition. Mr Hepworth submitted that the Committee must have been concerned with risk to the general public but there is little analysis of risk in the decision. The Committee did comment upon the Applicant's lack of full insight and her unwillingness to take full responsibility for the issues raised at the competency hearing, but otherwise there is a real lack of analysis or reasoning behind the decision to impose the condition. We therefore decided that we could attach little weight to the decision because it simply states “The reasons for the Registration Committee’s decision were as follows. The Committee has carefully considered the material within the bundle submitted, which includes material from the GSCC and material from the Applicant. The Committee has also listened carefully to the oral submissions made by and on behalf of the Applicant and those made on behalf of the GSCC. The Committee has taken into account the legal advice from the Legal Adviser”.  With respect, these reasons fall far short of an explanation as to why they imposed the condition.

19. In arriving at this decision we are alert to the Committee’s concerns about limits to the Applicant’s insight into her conduct, and the fact that that conduct in respect of report writing and her attitude towards some service users in the area of drug dependency was called into question over a period of about a year in 2009/10, leading to her dismissal. We were however impressed by the standard of written work provided by the applicant for the Tribunal and by the insight shown by her before us. We note also that Lancashire County Council compromised the Employment Tribunal matter and agreed to provide a non critical reference in favour of Ms Robertson.

20. We put the “year of concerns” and the fact that these were against a background of a new line manager against whom Ms Robertson made serious grievance complaints, some of which were upheld, into the balance together with her excellent work record and good references both before and since the competence issues were raised and concluded that there was little, if any, risk of repetition. We therefore did not feel there was any significant future risk to members of the public nor to the reputation of the profession. The alleged deficits in the Applicant’s written skills and  in her personal communication skills with drug and alcohol dependent users are matters which do not qualify as significant or grave and we decided that there was little if any cogent evidence which pointed to any future risk to service users. This is reinforced by her work with elderly and vulnerable clients in the recent past where no such concerns or risks have been raised.

21. In our view the Applicant has demonstrated some, if not complete, insight into her failings.  We are satisfied that she cannot realistically obtain social work employment if she is required to disclose an out of date letter describing the reasons for her dismissal, which reasons did not amount to sufficient for a conduct hearing and which were not sufficient for the Committee to find that she lacked sufficient competence to be refused registration as a social worker.

22. We considered Mr Hepworth’s submissions that there are two risks requiring the imposition of the condition. He stated that the first risk was to potential service users because there was a real capability issue in 2009 which has not been addressed, and the second risk is to the reputation of the profession.

23. We decided that any risk to service users (which Mr Hepworth was unable to specify or quantify) would be very low and could be addressed by the simple fact of discussing the dismissal issues as part of an application process.  Limited grammar / spelling deficiencies in report writing do not in our view pose a direct risk to users, and “attitude” as judged by alcohol/ drug dependant service users being denied detoxification programmes is highly subjective and is unlikely to pose more than a very limited risk to them. A potential employer could assess for themselves Ms Robertson’s writing skills and her “attitude” and monitor them if they felt necessary.

24. We also considered the risk to the reputation of the profession. We do not agree that this dismissal was a significant and grave matter. There can be no public interest in this type of dismissal, which, at most, was at the lower end of the scale, and at worst was potentially unfair to the applicant.

25. Bearing in mind the evidence we have read, together with the submissions made by Mr Hepworth and Mr Weinbren and the evidence of Ms Robertson, we have determined that the decision to impose the condition which effectively precludes Ms Robertson from obtaining a social work position was disproportionate, was therefore wrong and should be revoked.

26. We have considered whether any other condition is necessary but have concluded that there is no need for a condition on registration in this case because the Applicant has the dismissal on her curriculum vitae and a limited (agreed) reference from Lancashire County Council. This is in our view sufficient to alert any prospective employer to the fact of the dismissal and Ms Robertson can explain the subsequent compromised Employment Tribunal proceedings for unfair dismissal. We are sure that these matters may properly be explored in the application process and that nothing more is needed to protect the public or the profession.

27. We have therefore concluded that the decision to impose the condition was wrong and cannot be upheld in all the circumstances of the case.

ORDER

Appeal allowed. The condition on the Applicant’s registration imposed on 12 December 2011 shall be removed forthwith.

Judge Nancy Hillier

Lead Judge Care Standards

8 May  2012