DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to dismiss the appeal by the appellant.

 

The decision of the First-tier Tribunal (Health, Education and Social Care Chamber) dated 9 June 2010 under file reference [2009]1651. SW does not involve an error on a point of law.

 

This decision is given under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.

 

REASONS FOR DECISION

 

The decision of the Upper Tribunal in summary

 

1. The appellant’s appeal to the Upper Tribunal is dismissed.  The decision of the First-tier Tribunal (FTT) dated 9 June 2010 under file reference (2009) 1651.SW [2010] UKFTT 323 (HESC) does not involve any material error on a point of law. 

 

The central legal issue in this appeal

 

2. The central legal issue in this appeal concerns the interaction of two sets of Rules which govern the work of the General Social Care Council (GSCC), currently the regulatory body for social workers (amongst others in the social care sector).  The Rules in question are the General Social Care Council (Registration) Rules 2008 (“the Registration Rules”) and the General Social Care Council (Conduct) Rules 2008 (“the Conduct Regulations”).

 

An outline of the factual background to this appeal

 

3. This appeal has an extensive “back story”, which can only be summarised here (there is a fuller account in the FTT’s decision at paragraphs [9]-[21]). The appellant was a mature student on a social work course at the University of Brighton.  In that capacity he worked in a placement with a local agency.  Without descending into the detail, it is sufficient to say that there were differences of opinion between the appellant and one of the agency’s service users and also between the appellant and at least one of the agency’s members of staff.  The upshot was that the University of Brighton “the HEI”, or higher education institution) convened a fitness to practise panel (“the first panel”), which concluded, after a hearing, that the appellant was unfit to be a social worker. The HEI informed the GSCC of the outcome of the first panel.

 

4. The appellant invoked the HEI’s appeal system to challenge the first panel’s decision.  His appeal was successful on procedural grounds and the matter was remitted to a further fitness to practise panel (“the second panel”).  The second panel also found the allegations proven and shortly afterwards the appellant was removed from the course by the HEI.  The appellant appealed the second panel’s decision to the Office of the Independent Adjudicator, which upheld the substance of the panel’s decision whilst expressing come concern about the process adopted.

 

5. The HEI duly informed the GSCC of the outcome of the second panel by an email dated 18 July 2008.  Without further enquiry, the GSCC removed the appellant’s name from the register under rule 8(1) of the Registration Rules.  This states that where a student is no longer participating in a degree course, “the Council may remove” her or him from the register (emphasis added). The appellant lodged an appeal with the FTT against that decision.  The GSCC applied for his appeal to be struck out.  HH Judge Oliver dismissed the GSCC’s strike out application, agreeing with the submission on behalf of the appellant that the GSCC had failed to exercise its discretion under rule 8(1).

 

6. The GSCC thereupon conceded the appeal and the appellant was (temporarily at least) restored to the register.  Mr Colin Darville, the GSCC Conduct Manager, subsequently wrote to the appellant on 29 July 2009 explaining that the Council had considered three options, namely (1) to take no further action; (2) to maintain him on the register so as to consider a substantive conduct investigation; or (3) to remove him from the register under rule 8(1) of the Registration Rules on the basis that he was no longer participating in a relevant course.  The letter further explained that the GSCC had decided that option 3 was the most appropriate course of action.

 

7. The appellant appealed again to the FTT, which heard his appeal on 14 April and 9 June 2010.  The FTT dismissed his appeal.  The appellant now appeals to the Administrative Appeals Chamber of the Upper Tribunal with my permission.

 

What the appellant wants and why this appeal is important

 

8. At first sight the appellant’s position is somewhat counter-intuitive.  He wants the GSCC actively to investigate the conduct allegations made against him.  His central argument is that the GSCC handled his case as a “simple” registration issue when it should have treated it as a conduct matter.  In short, he wants his case to be investigated as a conduct issue and his position to be vindicated.  As he put it in his witness statement to the FTT, the GSCC “both does and should have an independent role in scrutinising suitability decisions made by HEIs”.  The appeal is obviously important to the appellant personally.  It also has wider implications for the way that the GSCC (and possibly any successor body) carries out its functions.

 

The proceedings before the Upper Tribunal

 

9. I held an oral hearing of the appeal at Field House in London on 16 June 2011.  The appellant was represented by Mr Allan Norman, Solicitor, of Celtic Knot, and the GSCC was represented by Ms Miranda Bevan of Counsel.  I am indebted to them both for their written and oral submissions. Their various submissions have demonstrated both a clarity of purpose and a precision in the use of language which are sadly absent from the Council’s Regulations.

 

The legal framework: the role of the General Social Care Council

 

10. The Care Standards Act 2000 (“the 2000 Act”) was an important landmark in re-affirming and recognising in statute the professional status of social workers.  The GSCC was established by Part IV of the Act, and in particular by section 54(1)(a).  Its duties include the promotion of “high standards of conduct and practice among social care workers” (s.54(2)(a)).  The GSCC must maintain a register of social workers (s.56(1)(a)) and has the function of granting or refusing registration applications (s.58).  Appeals against the Council’s decisions on registration issues lie to the FTT (s.68).  The GSCC also has an important role (in conjunction with the minister) in approving social work courses in HEIs (ss.63-67A).  The Council’s summary policy document “Arrangements for Monitoring the Social Work Degree” states that HEIs will be asked to inform GSCC of “any instances of ending a student’s involvement in the social work degree” (p.2). Furthermore, the Council’s much more detailed guidance document, Suitability for social work: ensuring the suitability of social work students to access and continue their training, has a section on “Suitability issues which occur after the student has enrolled onto the course and is registered with the GSCC” (pages 17-20.  This includes, amongst other obligations on course providers, the statement that “HEIs should inform the GSCC of the outcome of any suitability hearing” (page 19).

 

11. The present appeal concerns the interplay between the Registration Rules and the Conduct Rules.  Such rules in the medical and health-related professions, a form of secondary legislation, are typically made by way of Orders of Council.  The GSCC’s Registration Rules and the Conduct Rules are rather different.  The 2000 Act provides that the GSCC must make rules regarding the removal or suspension of registrants (s.59) and may make rules relating to registration matters (s.60).  Such rules can only be made with the consent of the relevant minister, being the Secretary of State for Health (s.71(4)), but are not subject to the direct scrutiny of Parliament.  As Mr Norman and Ms Bevan agreed, they are in some respects more akin to a form of “soft law”, analogous to codes of practice issued by government agencies and regulators under various statutory powers.  I accept, of course, that such soft law may constitute “an important source of individual rights and corresponding duties” (see Lord Steyn in Re McFarland (Northern Ireland) [2004] UKHL 17 (at paragraph [24])).  That said, such instruments may not be drafted with the degree of precision that we usually expect to see in primary and secondary legislation (even if those expectations are themselves not always realised).

 

The Registration Rules

 

12. The Registration Rules 2008 recognise two types of “registrant” (being “a person entered in the register”: rule 2), namely qualified social workers and student social workers (see definition of “applicant”, also in rule 2).  Rule 4(10)(d) of the Registration Rules provides that where the applicant is a student, the GSCC shall grant an application for registration if “it is satisfied that the Applicant has been accepted by a course provider to participate in a degree course”.  Rule 5 further provides that in such circumstances “that student’s name shall not be entered onto the Register until the Council is satisfied that the student has begun participating in a degree course.”  The default rule is that a student’s registration remains effective for the duration of their course, or for seven years, whichever is the earlier (rule 6(1)(b)).  Rule 8(1), already referred to above, then provides as follows:

 

“Removal from the register for non participation in degree course

8. (1) Where a Registrant is no longer participating in a degree course, the Council may remove that Registrant’s entry from the Register, without referring the matter to the Registration Committee.”

 

The Conduct Rules

 

13. The Conduct Rules 2008 are divided into four Parts, namely Part I (Introduction), II (Committees), III (Complaints) and IV (Removal and suspension from the register), together with four detailed Schedules, mostly concerned with procedural matters.  Within Part I, rule 2(1) defines, amongst others, the following terms:

 

“‘Complaint’ means any information which is considered to be a Complaint by virtue of the provisions of Rule 12(2);

“‘Complainant’ means any person (including an employer or institution) who makes a Complaint against the Registrant;”.

14. Part III (Complaints) comprises a single provision, rule 12.  This provides as follows (omitting sub-paragraphs (13)-(17) which are not material for present purposes):

 

“Procedure upon receipt of information about a registrant

12. (1) On receipt of information about a Registrant, the Council shall first consider whether such information is a Complaint.

(2) Information shall only be considered to be a Complaint if such information:

(a) relates to an identifiable Registrant; and

(b) makes a specific allegation or allegations of Misconduct against the Registrant.

(3) If the information is not considered to be a Complaint, the Council shall inform the provider of the information that no further action will be taken and that the matter will be closed.

(4) If the information is considered to be a Complaint, the Council shall send the Complainant a copy of the Council’s guidance about making a Complaint and may also inform the Complainant of alternative methods of resolving disputes, including mediation or remedies available through a Registrant’s employer.

(5) If the Complainant does not wish to proceed with a Complaint, the Council may in the interest of public protection act as the Complainant.

(6) Where anonymous allegations are received by the Council, the Council shall investigate the matter and if satisfied that the allegations amount to a Complaint, the Council shall act as the Complainant.

(7) Where the Council has received information about a Registrant, and that Registrant is already the subject of an inquiry by the police, any statutory inquiry or tribunal, or other regulatory body set out in SCHEDULE 4, the Council may defer the investigation or referral of a Complaint until the inquiry by the police or other regulatory body has concluded.

(8) In respect of each Complaint, the Council shall consider whether, in their opinion, there is a real prospect of a finding of Misconduct in relation to each allegation which forms a basis of the Complaint, taking into consideration any documents and information provided under Rule 12(9) below.

(9) In addition to any inquiries made and advice sought under paragraph (17) of this Rule, the Council shall, before making any decision as to the prospect of a finding of Misconduct in relation to each allegation, send to the Registrant -

(a) a copy of the Complaint and any documentation in support, and

(b) a copy of these Rules,

and shall invite the Registrant, within 14 days of receipt, to submit written representations upon the Complaint, together with any additional documentation.

(10) If the Council considers that there is not a real prospect of a finding of Misconduct in relation to any allegation which forms a basis of the Complaint, it shall inform the Complainant, the Registrant and the Registrant’s employer (if any) that no further action will be taken in relation to that allegation, providing an explanation for that decision.

(11) If the Council considers that there is a real prospect of a finding of Misconduct in relation to any allegation which forms a basis of the Complaint, it shall refer that allegation to the Conduct Committee and shall inform the Complainant, the Registrant and the Registrant’s employer (if any) of that referral -

(a) giving reasons for the decision, and

(b) stating whether the case has been referred to the Conduct Committee under the Conduct Procedure or the Health Procedure, and the reasons why.

(12) The Council shall include each allegation referred to the Conduct Committee in a Formal Allegation which the Council shall prepare and serve upon the Registrant and the Clerk to the Conduct Committee.”

 

The appellant’s primary submission: the precedence issue

 

15. Mr Norman, on behalf of the appellant, first pointed to the overlap between the two sets of the GSCC’s Rules.  For example, questions of “good character and conduct” were relevant to the Registration Rules (see rule 4(4)(b)(i) and (10)), whilst “misconduct” was defined by the Conduct Rules (rule 2(1)) as “conduct which calls into question the suitability of a Registrant to remain on the Register”.  He pointed to a number of significant differences between the two sets of Rules in terms of the burden of proof, the extent to which details had to be particularised, the sanctions available to the GSCC in the event of breach and the procedural protections available to the registrant.  I did not understand Ms Bevan to dissent from this part of Mr Norman’s analysis.

 

16. Mr Norman’s primary submission was simple, namely that the Conduct Rules take precedence over the Registration Rules.  It was here that he and Ms Bevan first parted company.  Mr Norman’s argument was that rule 12 provides a universal procedure for filtering or processing information received by the GSCC about a registrant.  He relied in particular on the wording of rule 12(1), namely that “On receipt of information about a Registrant, the Council shall first consider whether such information is a Complaint” (emphasis added).  The italicised expression meant, he argued, that the GSCC must first decide whether the information received constitutes a complaint before taking any other action (e.g. under the Registration Rules).  Mr Normal also noted that there was no equivalent provision within the Registration Rules to counter the effect of rule 12(1), namely that the Conduct Rules are to be applied first.  This approach was also consistent with one of the statutory purposes, namely that a regulatory body such as the GSCC should have a robust quality assurance system in place for identifying, process and considering complaints against social workers (and so promoting standards).

 

17. In the course of argument at the oral hearing, I put to Mr Norman the situation where an HEI wrote to GSCC to inform it, with regret, of the death of one of its students.  The logic of his submission, I suggested, was that the Council had first to consider whether this was a complaint.  Mr Norman agreed that this consequence did follow, but he stressed that this was not an onerous burden on the GSCC and would not distract its staff for more than a fraction of a second.  In effect, the “not a complaint” box would be immediately ticked and the information processed in the appropriate way thereafter.  Ms Bevan, however, pointed to the requirements of rule 12(3) which, on Mr Norman’s construction of rule 12(1), she argued, would require the GSCC to notify the relevant HEI that no further action would be taken and the matter closed.  The same would be true, she contended, for all the masses of much more mundane data – e.g. a change of address for a registrant or a reference in support of a renewal application or information about post-qualification training undertaken by an individual – which the GSCC received on a daily basis.  If such communications could properly be described as “information about a Registrant”, then Mr Norman’s analysis required the complaint tick-box to be considered and, moreover, a letter sent to the informant which met the mandatory terms of rule 12(3).  Ms Bevan submitted that this could not be the intention of the Rules.

 

18. I agree with Ms Bevan’s analysis.  It seems to me that Mr Norman seeks to place too much weight on the words “the Council shall first consider” and in particular the word “first”.  As explained above, the Conduct Rules, although made under the authority of primary legislation, and approved by the Secretary of State, are not subject to the same degree of scrutiny as conventional delegated legislation.  Ms Bevan rightly conceded that the drafting of rule 12 generally, and rule 12(1) in particular, leaves something to be desired.  However, given their status and provenance, I do not think the Rules can be read in a way that expects the same degree of linguistic precision as other forms of statutory instrument.  There is also nothing in the primary legislation (Part IV of the 2000 Act) to indicate that conduct matters are to have precedence over registration matters.  I acknowledge that the GSCC must make conduct rules (s.59) and may make rules relating to registration matters (s.60), but I do not read that as suggesting that the former should have priority over the latter if both types of rules are actually made.  Such an approach would also be inconsistent with the discretion vested in the Council under rule 8(1) of the Registration Rules.

 

19. The FTT reached the following conclusion on this point:

 

“[31] At the outset we note that we do not accept Mr Norman’s contention that the use of the word ‘first’ in rule 12(1) means that the Conduct Rules automatically take precedence and hence should have been considered by the Council before taking any other action.  The effect of such a construction would be to oblige the Council to screen each and every piece of information of whatever kind that it received about a Registrant, to see whether it might constitute a Complaint, something which would, in most cases, involve them in an artificial and pointless exercise.”

 

20. For the reasons above, I agree with the FTT’s analysis on the inter-relationship between the Conduct Rules and the Registration Rules.  One set of rules does not take precedence over the other.  They have to be read in such a way that they have equal status and work together.

 

21. Mr Norman will doubtless ask this question: if so, then what does rule 12(1) actually mean by saying that “the Council shall first consider”?  Ms Bevan acknowledged that the intention behind the provision was opaque and the drafting of rule 12 was deficient.  All the standard works on statutory interpretation give examples of what Bennion refers to as “judicial interstitial articulation” (Statutory Interpretation, 5^th edition (2008), §179, pp. 505-509), i.e. where judges read words into a legislative provision to make it workable.  The Conduct Rules, of course, are a soft form of secondary legislation and allowances need to be made for their fuzzy edges.  However, the twin goals of ensuring a robust quality assurance system for complaints while avoiding the administrative burden on the GSCC of screening and responding to all information in an unduly bureaucratic way could be met if rule 12(1) were to be read as follows: “On receipt of information about a Registrant which looks like it might be a complaint, the Council shall first consider whether such information is a Complaint.”  This takes us to Mr Norman’s further submissions on the construction of rule 12.

 

The appellant’s secondary submissions on rule 12

 

22. Mr Norman made a number of further submissions on the construction of rule 12.

 

 

Rule 12(2): was there a complaint?

 

23. Rule 12(2) provides as follows:

 

“(2) Information shall only be considered to be a Complaint if such information:

(a) relates to an identifiable Registrant; and

(b) makes a specific allegation or allegations of Misconduct against the Registrant.”

 

24. Mr Norman’s submission was that rule 12(2) provided a comprehensive and exclusive definition of what constituted a complaint.  In the present case, he argued, the information provided by the HEI plainly related to “an identifiable Registrant” and also made “a specific allegation or allegations of Misconduct against him”. He pointed out that rule 2 defines a “complaint” as meaning “any information which is considered to be a complaint by virtue of the provisions of Rule 12(2)”. It followed, he submitted, that the GSCC had no discretion to exercise at this stage – any filtering out (e.g. of unmeritorious complaints) should take place at a later stage (see rule 12(8)-(10)).  The intention of the person providing the information was, Mr Norman contended, irrelevant – looked at objectively, the information in question either fell within, or fell outside, the terms of that definition, irrespective of what the provider of the information meant to do.  He further submitted that the GSCC could not simply adopt a third party’s findings (such as those of an HEI or employer’s disciplinary hearing) without further enquiry – where a complaint was made, such findings had to be treated as unproven allegations to be tested independently through the GSCC complaints regime. 

 

25. Ms Bevan conceded that the drafting of rule 12(2) was ambiguous.  It might be read, as Mr Norman argued, as providing a comprehensive definition of what amounted to a “complaint”.  However, if that was the case, then what was meant by the inclusion of the words “shall only be considered” in the preamble to rule 12(2)?  If the provision carried the meaning advocated by Mr Norman, then it would have been sufficient for the preamble to read simply “Information shall be a complaint if such information” [meets the requirements of conditions (a) and (b)].  On that basis, she suggested, rule 12(2) was a threshold test rather than a comprehensive definition.  In other words, rule 12(2)(a) and (b) were necessary but not necessarily sufficient pre-conditions for finding that there had been a complaint.  The use of the term “considered” implied that the GSCC had a discretion to exercise at this stage.  She acknowledged that Mr Darville’s letter had referred to the contents of the second panel’s report, and had expressed the view that “if these allegations were proven for the purposes of a conduct hearing I am of the view they would amount to misconduct as defined in Part 1 of the 2008 Conduct Rules”.  However, he had also added that the GSCC had “at no stage received a formal complainant [sic] from the University of Brighton.  It simply informed the Council of the outcome of the Fitness to Practise Panel.”

 

26. The FTT did not make any express finding on the construction of rule 12(2).  However, it seems clear from its decision, read as a whole, that it accepted that in principle the information provided amounted to a “complaint”, not least as the tribunal’s conclusion was that “the process to be followed if the Conduct Rules are applied stops, in this case, at Rule 12(5)” (the further issue about whether or not there was an active complainant, addressed directly below). 

 

27. This is by no means a straightforward issue.  There is some force in Ms Bevan’s argument that the phrase “shall only be considered” in rule 12(2) would be mere surplusage if the fulfilment of conditions (a) and (b) were meant to provide a comprehensive definition of what constituted a complaint.  I bear in mind, as indicated above, that it may be wrong to infer too much from the precise terms of the language used.  However, her point has added force when rule 12(3) and (4) are also considered. These deal with the immediate procedural requirements that follow the consideration under rule 12(2).  The sub-paragraphs start respectively “If the information is not considered to be a complaint…” (rule 12(3)) and “If the information is considered to be a complaint…” (rule 12(4)).  If Mr Norman’s submissions were well-founded, it would be sufficient for them to read “If the information is not a complaint…” and “If the information is a complaint…” respectively. Moreover, if, as Mr Norman submits, the information provided necessarily amounted to a complaint under rule 12(2), then it followed by virtue of rule 12(4) that the GSCC was required to send the HEI “a copy of the Council’s guidance about making a complaint and may also inform the Complainant of alternative methods of resolving disputes, including mediation or remedies available through a Registrant’s employer.”  I have to say that I think that the HEI informant in this case would have been rather puzzled to receive such a communication.  As Ms Bevan argued in her written submissions, any such communication would have been otiose in the circumstances.  That again suggests that the Council has a discretion to exercise under rule 12(2) in deciding whether or not the communication actually amounted to a complaint. 

 

28. It is important here to return to the facts of the case.  The regulatory context in which the HEI provided the information was set out at paragraph 10 above.  The email to the GSCC from the Principal Lecturer in social work at the HEI, dated 18 July 2008, read as follows:

 

“A new Fitness to Practise Panel was held on July 10^th.  The purpose of this email is to advise GSCC formally of the outcome of the Panel, as required.  The panel concluded that [the appellant] was unsuitable for social work training.  The Vice-Chancellor has advised [the appellant] by a letter of 17^th July that he is now excluded from the course.  I attach the report of the Panel.  I trust you will contact me for any further information which GSCC may require.”

 

29. My initial view was that it was difficult to see how this communication could amount to a “complaint” as a matter of plain English.  On the face of it, the email appeared to be no more than the HEI notifying the GSCC of the outcome of its disciplinary hearing. The email was couched in terms of the HEI seeking to fulfil its obligations to the GSCC (not least the stated purpose being “to advise GSCC formally of the outcome of the Panel, as required”) rather than seeking to instigate a complaints process.

 

30. On balance, however, I have reached the conclusion that the email did have the potential to constitute a complaint.  The question has to be answered not by reference to the ordinary dictionary meaning or commonplace understanding, but the terms of rule 12(2).  The email clearly related to an identifiable registrant (rule 12(2)(a)) and had to be read with the attached report of the second panel, which included allegations of misconduct (rule 12(2)(b)).  The GSCC rightly take no point as to whether the report is incapable of being a complaint because it contains findings which have been adjudicated upon and found proven, rather than simple allegations.  Ms Bevan rightly concedes the force of Mr Norman’s submission that such a sharp distinction would prevent the GSCC’s Conduct team from pursuing and investigating the vast majority of referrals which they receive (e.g. from employers who have conducted disciplinary hearings in respect of their employees).

 

31. My conclusion is that the email and the attached report had the potential to constitute a complaint under rule 12(2) but, for the reasons set out at paragraph 27 above, even if both limbs of that provision are satisfied, the GSCC still has a discretion to exercise in deciding whether the communication amounts to a complaint as such.  In reaching that decision the GSCC is entitled to have regard to a range of factors, including the intention of the person or body providing the information.  If the GSCC’s view is that the communication amounts to a “formal” complaint (a term which, of course, I accept has no basis in the Rules, although it was used by the GSCC), then the procedural consequences so far as notification then follow (see rule 12(3) and (4)).  If I am wrong on that point, it is necessary to consider Mr Norman’s next submission.

 

Rule 12(5) and (6): was there a complainant?

 

32. Assuming that on a proper construction of the Conduct Rules the GSCC had no discretion in the matter, and the HEI’s notification of the outcome of the second fitness panel amounted to a complaint within rule 12(2), then, putting rule 12(4) to one side for the moment, what should have happened next?  This question turns on the construction of rule 12(5) and (6), which state that:

 

“(5) If the Complainant does not wish to proceed with a Complaint, the Council may in the interest of public protection act as the Complainant.

(6) Where anonymous allegations are received by the Council, the Council shall investigate the matter and if satisfied that the allegations amount to a Complaint, the Council shall act as the Complainant.”

 

33. The FTT devoted considerable attention to its analysis of this issue.  It read rule 12(5) and (6) as integral parts of the complaints process, concluding as a matter of construction that, if a complainant did not wish to proceed with a complaint, then the GSCC could only proceed with the matter under the Conduct Rules in two types of case, namely where public protection issues were raised (rule 12(5)) or where the complaint was anonymous (rule 12(6)) (see paragraph [33] of the FTT’s reasons).  The tribunal found that in this case the HEI did not wish to proceed with a complaint as it had notified the GSCC because of its reporting requirements, rather than to make a complaint as such (paragraph [34]).  The tribunal, noting that the anonymity provision was plainly irrelevant, also found that there were no public protection issues disclosed in this case (paragraphs [35]-[36]).  It therefore reached the following conclusion:

 

“[37] In the absence of a Complainant who wished to proceed with a Complaint, and since, as we have found, it would not have been appropriate for the respondent [the GSCC] to take on the role of Complainant in this case, the Conduct Rules did not allow for the matter to proceed to a further investigation to determine whether or not it should be referred to the Conduct Committee.”

 

34. This reference to “a further investigation” was to the filtering stage at rule 12(8).  This provision states that “in respect of each complaint, the Council shall consider whether, in their opinion, there is a real prospect of a finding of misconduct”. As noted above, the tribunal concluded that the matter stopped at rule 12(5) (paragraph [38]).

 

35. Mr Norman’s submission was that the FTT had misconstrued rule 12(5) and (6), treating them as a procedure for eliminating a complaint, rather than simply allocating a complainant in certain circumstances.  He argued that under the 2008 Conduct Rules there was no need for an active complainant.  Rule 12(8) was clear, imposing a duty to filter complaints to identify whether or not there was a “real prospect” of a misconduct finding.  Furthermore, he argued, the differences between the 2003 and the 2008 Conduct Rules were telling.  In particular, the 2003 Rules were drafted in such a way that an active complainant was required (see rule 12(6) of those Rules), while the new Rules dispensed with that requirement.

 

36. Ms Bevan acknowledged that the 2003 Rules were clearer on the point, but questioned whether the requirement for an active complainant had been written out of the 2008 Rules in the way that Mr Norman suggested.  In her submission, rule 12(5) and (6) remained part of the apparatus of the complaints regime.  She accepted that rule 12(8) had a mandatory effect, but only once the matter had negotiated the hurdles of rule 12(5) and (6).  In particular, rule 12(5) was a necessary staging post – if there was an active complainant, the matter went to the triage stage at rule 12(8).  If there was no such complainant, then unless the GSCC in the exercise of its discretion considered it appropriate to pursue the complaint, the matter ended there, unless the complaint had been anonymous in the first instance in which case rule 12(6) applied.  For the reasons considered above, she argued that the HEI was not an active complainant and the conclusion that there were no public protection issues involved under rule 12(5) was one that was reasonably open to Mr Darville and, on appeal, to the FTT.

 

37. In my assessment the FTT was right to accept Ms Bevan’s submissions on the question of the construction of rules 12(5) and (6) in the scheme of the Conduct Rules as a whole.  The parties are agreed that the requirement under rule 12(8) is mandatory.  However, the dispute is whether rule 12(5) and (6) are necessary stopping points on the way to invoking rule 12(8).  Simply as a matter of the English language, I must confess to having some difficulty in contemplating a “complaint” without a “complainant”.  The complaint may be anonymous, and understandably so in some circumstances, but rule 12(6) deals with that eventuality.  However, where an identifiable person or body makes a complaint, then they are the complainant (see also rule 2(1)).  Such individuals may, for all sorts of reasons, good or bad, decide not to pursue their complaint.  If so, it is entirely understandable that a regulator such as the GSCC has a default power to proceed with the enquiry into the complaint if, but only if, there are public protection issues.  Absent such issues, the matter is closed.  The point was undoubtedly clearer in the 2003 Conduct Rules.  However, I regard the redrafting by the 2008 Rules as an (arguably unsuccessful) attempt to clarify and separate out the various stages of a conduct investigation, rather than reflecting any express intention to remove the requirement for an active complainant.

 

38. Indeed, I regard the changes to the Registration Rules as more telling in this regard.  The previous 2005 Registration Rules dealt with the position where a registrant had been expelled or suspended from a degree course “on disciplinary grounds” (rule 8(3)), requiring such cases to be referred to the then Preliminary Proceedings Committee, which conducted an initial consideration to determine whether the matter should be referred on to the Conduct Committee.  However, rule 8(3) was removed in the redrafting process and has no parallel in the 2008 Registration Rules.  As Ms Bevan submits, this provides the clearest indication that the intention behind the rule changes was to remove any suggestion that an HEI’s disciplinary findings had to be scrutinised as a matter of course under the Conduct Rules regime in all cases.  Whether that is either desirable as a matter of policy or fair on people in the appellant’s position is quite another matter.

 

 

 

The appellant’s submissions as to the proper consequences of the HEI’s report

 

39. The FTT summarised its decision at paragraph [30], at the start of the final section of its reasons, in the following stark terms: “It is the decision of the Tribunal that [the appellant] is not entitled to have his case heard by the Conduct Committee for the reasons set out below”.

 

40. Mr Norman made it very clear that his submission was not that the appellant was entitled to a conduct hearing.  Rather, his argument was that the appellant was entitled to the due process accorded by his construction of rule 12.  On his analysis the HEI’s report was a complaint within rule 12(2) and there was no need for an active complainant for the matter to be investigated.  Accordingly, the GSCC should have gone to the next stage, namely the filtration procedure required by rule 12(8).  This stipulated that the Council had to consider whether there was “a real prospect of a finding of Misconduct in relation to each allegation which forms a basis of the Complaint”, having asked the appellant for his representations (rule 12(9)).  The Council then had to come to a reasoned decision either way (rule 12(10) and (11)). 

 

41. Mr Norman stressed the value for social workers of the due process required by rule 12.  He mentioned that he had acted for clients who had been referred to the GSCC by their employers but where the Conduct Committee had found the allegations not proven.  A GSCC reasoned decision in the social worker’s favour, whether on the papers at the “real prospect” stage (rule 12(10)) or following a full hearing (rule 12(11) and Schedule 2), represented a “valuable currency”, in Mr Norman’s words.  It was a document that could be shown to e.g. prospective employers to undo the damage done to an individual’s reputation by adverse findings made in an HEI’s or employer’s internal disciplinary process.

 

42. I do not doubt the force of the points made by Mr Norman.  However, my conclusion is that the FTT did not misunderstand the case as put by the appellant in any material way.  The FTT summarised the parties’ rival contentions in some detail (see paragraphs [26]-[29]) and gave reasons as to why it rejected the primary contention that the Conduct Rules had precedence over the Registration Rules and why this case, had it been considered as a conduct complaint, would have stopped at rule 12(5) (paragraphs [30]-[43]) of the former Rules.  The summary at paragraph [30] was just that, a summary.  It might have been more accurate for the FTT to have stated its decision as being that the appellant had no right to have his case proceed down the conduct route, rather than “to have his case heard by the Conduct Committee”, but taking the decision as a whole there was no material error of law.

 

43. Ultimately Mr Norman’s challenge to the FTT’s decision was on the basis that these proceedings had taken a wrong turning at the outset: the GSCC had gone down the registration route when they should have gone down the conduct route.  He argued that if an HEI decides it does not wish to make a complaint about a student social worker, it can effectively engineer a situation in which its own findings as to alleged misconduct will stand without any independent scrutiny by an independent regulator.  Such an outcome was, Mr Norman submitted, both unfair on the individual and undesirable in terms of the regulatory framework.

 

44. The difficulty, however, is that student social workers are in what Ms Bevan described as a “precarious position”.  Mr Norman argued that student social workers should be treated no differently to qualified social workers.  The problem with that approach is that the Registration Rules plainly do distinguish between the two categories of social worker.  Part II of those Rules, which deals with registration procedures, certainly makes different and detailed provision for the two categories.  By virtue of being a student social worker, the appellant in the present case was necessarily subject to rule 8 (“Removal from the register for non participation in degree course”) in a way that a qualified social worker would not be.  Rule 8(1) vested the GSCC with a discretion to remove a student registrant from the register where s/he is “no longer participating in a degree course”.  In the present case, Mr Darville’s letter of 29 July 2009 demonstrated that the Council had exercised that discretion (even if the manner in which it had been done might have been better expressed in places).  For the reasons set out above, the FTT was entitled to reach the conclusion that the Conduct Rules did not apply in the circumstances of the present case and that that discretion under the Registration Rules had been properly exercised.  There are two further matters to note.

 

Further observations

 

45. First, I note that Part 7 of the Health and Social Care Bill currently before Parliament provides for the abolition of the GSCC and the transfer of some of its functions to the Health Professions Council, which will be renamed the Health and Care Professionals Council to reflect its wider remit across health and social care.  Social workers will be brought within the umbrella of the Health Professions Order 2001 (SI 2002/254).  Assuming these changes come into effect, this will doubtless provide an opportunity for a fundamental rethink as to both the form and content of the Conduct and Registration Rules.

 

46. Secondly, I accept, of course, that the Upper Tribunal’s jurisdiction is solely limited to considering whether the FTT erred in law in any way.  I simply record my surprise that the HEI’s second panel included a member who had sat on the first panel.  The Office of the Independent Adjudicator (OIA) apparently recorded some concern about this aspect of the HEI’s handling of the case, but concluded that it did not “compromise the impartiality of the panel to such an extent that the process was unfair or unreasonable” (FTT’s reasons, paragraph [11]).  I stress that I have not had sight of the report of the OIA enquiry or the rest of the relevant documentation, which may reveal some good reason why that course of action was undertaken, notwithstanding that the appellant’s credibility was clearly at stake.

 

Conclusion

 

47. I conclude that the decision of the First-tier Tribunal does not involve any material error of law and so dismiss the appellant’s appeal.

 

 

 

 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 4 July 2011 Judge of the Upper Tribunal