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

The Tribunal Procedure Rules (First-tier Tribunal) (Health, Education and Social Care) Rules 2008

Diane Onyango

v

HCPC

[2012] 1980.SW

Before:  Judge Nancy Hillier

Ms Michele Tynan (Specialist member)

Ms Maxine Harris (Specialist member)

Hearing held on the papers on 14 November 2012.

DECISION

APPEAL

1. Ms Onyango, (the Appellant) appeals under section 68 of the Care Standards Act 2000 against the decision of the Preliminary Proceedings Committee of the General Social Care Council (“the GSCC”) made on 26 June 2012 to impose a further 6 months interim suspension order upon her registration as a Social Worker.

The Law

2. By virtue of section 56 of the Care Standards Act 2000 the Respondent maintained a Register of Social Workers.

3. Section 59 of the Act allowed the Respondent to determine the circumstances by which an individual social worker could be sanctioned and removed from the Register.  The relevant rules are the General Social Care Council (Conduct) Rules 2008 (the Rules).  The Rules also determine the circumstances by which an individual social worker could be made the subject of an Interim Suspension Order by the Preliminary Proceedings Committee after the making of a complaint but before the final determination of the case at a conduct Committee Hearing.

4 When considering an application by the Respondent for an ISO, the Preliminary Proceedings Committee must decide under paragraph 5(1) of the Rules 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. The Preliminary Proceedings Committee did not decide the facts of cases; their role was limited to deciding whether an ISO should be imposed on the material available to them and in accordance with paragraph 5(1).

6. An appeal against a decision of the Committee lies to the First Tier Tribunal by virtue of section 68 of the Care Standards Act 2000. On an appeal the tribunal may confirm the decision or direct that it shall not have effect. At a telephone case management hearing on 28 September 2012 the parties agreed that the case was suitable for a paper hearing and the Tribunal decided that since no factual findings were required the matter could proceed as a paper hearing under Rule 23.

The Parties’ Positions

7. Ms Onyango gave 10 numbered reasons for her appeal in the notice of appeal. These reasons fell into four main categories, namely, that the decision was disproportionate because it deprived her of the ability to work in the Social Care field; that the Committee did not make findings of fact; that the committee lacked judicial independence and that insufficient notice was taken of the culpability of Haringey Council.

8. The Respondent resists the appeal on the basis that the initial decision was proportionate and remains so because in all the circumstances of the case the need to protect the public and uphold the public interest outweighed and outweighs the prejudice caused to the Appellant by imposing the ISO.

Background

9. The Appellant is a qualified social worker who has been registered with the GSCC since 2008. She has extensive social work experience. She was employed as a child protection social worker in Haringey in October 2008 and was dismissed by them in December 2011 following allegations of misconduct by omission and commission in relation to child A, whose mother was the alleged victim of unreported domestic abuse and in relation to Child B who was the subject of alleged unreported serious sexual abuse .

10. The GSCC first applied for an Interim Suspension Order (ISO) against the Appellant in January 2012.  The initial hearing took place on 13 February 2012 at which she asked for an adjournment in order to seek representation.  The hearing was therefore adjourned to 28 February 2012, when she attended with her trade union representative.  At that hearing, the Committee decided to impose an ISO against the Appellant for a period of four months. The Appellant did not appeal that decision.  The Committee reviewed the ISO on 26 June 2012 and imposed a further 6 months suspension.

11. The GSCC case at the hearing on 26 June 2012 was that the order was (a) necessary for the protection of the public and was (b) otherwise in the public interest,  thereby satisfying the grounds at paragraph 5(1)(a) and (b) of the 2008 Rules. The appellant appealed against the decision by notice dated 22 August 2012.

12. HCPC took over regulation of social workers in England from the GSCC on 1 August 2012.  The Response to the appeal indicated that HCPC intended to list an early review of the ISO in line with its obligations under Article 9(2) of the General Social Care Council (Transfer of Register and Abolition – Transitional and Saving Provision) Order of Council 2012.

13. The review took place on 2 October 2012.  The presenting officer on behalf of the HCPC invited the Investigating Committee to revoke the GSCC order and impose a fresh ISO under Article 31 of the Health and Social Work Professions Order 2001 which entitles the HCPC to impose an interim order. In fact, a review of the original decision had been intended and it is clear from the decision of the Investigating Committee that regrettably it was not aware of the existence or details of the Appellant’s appeal against the original GSCC interim order.

14. The Investigating Committee found that it was necessary in the public interest and in order to protect the public to impose a further ISO for a period of nine months against the Appellant.  It revoked the GSCC decision which is the subject matter of this appeal and imposed a fresh order under Article 31 of the 2001 Order. 

15. The Respondent therefore invites the Tribunal to resolve the appeal against the June ISO imposed by the GSCC to determine whether the GSCC decision should be confirmed or whether it should have no effect in accordance with Section 68(2) of the Care Standards Act 2000.  In the event that the Tribunal allows the Appellant’s appeal, the Respondent has agreed that it will direct the Investigating Committee to revoke the ISO that it imposed on 2 October 2012.

Analysis

16. The first question for us to consider is whether in fact we have jurisdiction to make a decision. The GSCC ISO has been replaced by an ISO under Article 31 of the Health and Social Work Professions Order 2001 over which we have no jurisdiction. We have however considered the Respondent’s invitation to resolve this appeal on the basis that in the event that the Tribunal allows the Appellant’s appeal, the Respondent will direct the Investigating Committee to revoke the ISO that it imposed on 2 October 2012. We have concluded that in fairness to the appellant we should make this decision as if the GSCC’s 17.  ISO were still in force because if we decide in her favour the Respondent will lift the order imposed and because the Overriding Objective imposes upon us to achieve fairness and justice in hearing an appeal. This of course is without prejudice to any appeal or action for judicial review which the appellant may have against the decision of 2 October 2012, and is made on the basis of avoiding any delay or prejudice to her in the interim.  We are aware that the current HCPC ISO will expire in July 2013 (beyond the date of the GSCC ISO) and that there can be no further extension to the order without reference to the High Court.

18. It was not the Committee’s function to decide the facts of the case nor is it ours. However we note that even the amended allegations to be considered by HCPC within the next few months include serious allegations of failures to act and report on significant issues including an alleged large bruise on the arm of a service user’s mother who had been the victim of domestic abuse, and information of further alleged abuse some 7 months later together with failure to report and act promptly on allegations of sexual abuse in respect of another service user. In both cases the consequences of such acts or omissions, if proved, could have resulted in a risk of significant harm to those service users. The fact that the appellant seems to be placing responsibility in relation to her alleged actions and omissions at the door of her employer and her colleagues and blaming them for any failings and delay which have occurred leads us to assess the interim risk of further harm as unacceptable because she does not take responsibility for her admitted conduct.

19. An Interim Suspension Order is a serious measure: the less serious the allegation the less likely an interim order will be required to protect the public or will such an order be in the public interest.  We have concluded that the allegations are serious and if proved would probably lead to either removal or suspension of the Appellant from the register. We find that the public would expect service users to be protected in the interim.

20. We have not found any evidence of impartiality or bias in respect of the committee, nor lack of independence.

21. We have carefully considered the issue of proportionality and borne in mind the real disadvantage to the appellant which suspension inevitably brings, and we have balanced it in our decision making process.  However, we find that that disadvantage and prejudice is heavily outweighed in this case by the need to prevent harm to service users, to protect the public and to maintain public confidence in the regulation of social workers.

Decision with reasons.

22. We have carefully considered the evidence and documentation provided in the bundle and have applied the law to our analysis as set out above. We have concluded that in all the circumstances of this case the initial decision was and remains proportionate and that the decision should be confirmed.

23. It was not the Committee’s function to decide the facts of the case nor is it ours. Ms Onyango’s complaint seems to be that the committee failed to find the facts proved in her favour. That was not their role, and consideration of the allegations must quite properly be deferred to a misconduct hearing.

24. We would urge HCPC to list this matter for hearing at the earliest opportunity in order to avoid further delay in resolving the allegations of misconduct one way or the other. The allegations have been formulated, Ms Onyango has filed a detailed statement in response and there has been plenty of opportunity for the Respondent to consider the evidence needed. It is now a year since the Appellant was dismissed and this matter should not be allowed to drift.

Decision

The decision of 26 June 2012 is confirmed.

Judge Nancy Hillier

Lead Judge Care Standards and Primary Health lists.

14 November 2012