Forbes v General Social Care Council [2008] EWCST 1267(SW) (03 October 2008)

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Cite as: [2008] EWCST 1267(SW)

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Forbes v General Social Care Council [2008] EWCST 1267(SW) (03 October 2008)

Tricia Forbes

v

General Social Care Council

[2008] 1267.SW

Before

Miss Maureen Roberts, Chairman

Mr Jim Lim, Specialist Member

Mr Paul Thompson, Specialist Member

DECISION

Heard on 24^th and 25^th September 2008 at the Care Standards Tribunal, Pocock Street, London.

Representation: The Applicant was represented by Mr. Martin Weinbren of the British Association of Social Workers (BASW).

The Respondent was represented by Mr. David Christie of Counsel

APPEAL

The Appellant appeals against a decision made by the Respondent on 14 February 2008 to remove her name from the Register of Social Workers. The Appeal is made under S68 of the Care Standards Act 2002. It is for the Care Standards Tribunal ("the CST") to endorse that decision or to direct that it shall not have effect: see section 68(2) of the Care Standards Act 2000.

THE LAW

The decision of the GSCC's Conduct Committee was made under S59 of the Care Standards Act 2000 (CSA) coupled with the General Social Care Council (Conduct) Rules 2003.

Section 59, Removal etc from register of the CSA provides:

(1) Each Council shall by rules determine circumstances in which, and the means by which –

(a) a person may be removed from a part of the register, whether or not for a specified period;

(b) a person who has been removed from a part of the register may be restored to that part;

(c) a person's registration in a part of the register may be suspended for a specified period;

(d) the suspension of a person's registration in a part of the register may be terminated;

(e) an entry in a part of the register may be removed, altered or restored.

(2) The rules shall make provision as to the procedure to be followed, and the rules of evidence to be observed, in proceedings brought for the purposes of the rules, whether before the Council or any committee of the Council.

(3) The rules shall provide for such proceedings to be in public except in such cases (if any) as the rules may specify.

(4) Where a person's registration in a part of the register is suspended under subsection |(1)(c), he shall be treated as not being registered in that part notwithstanding that his name still appears in it.

PROCEDURE OF THE CONDUCT COMMITTEE OF THE GSCC

The Conduct Committee operates under the GSCC (Conduct) Rules 2003. This provides that formal allegations are put to the Appellant and after hearing evidence the Appellant is asked if she admits those allegations.

The formal allegations were as follows:

While employed by the London Borough of Waltham Forest in respect of Service User A;

1) On 5 May 2005 in relation to Child A's disclosure of physical abuse by her father on 4 May 2005 you:

a) Did not treat the matter as a child protection referral in that you did not:

i) Initiate a child protection inquiry,

ii) Inform the police, child protection response unit or partner agencies of the disclosure,

iii) Arrange for Child A to be accommodated overnight in a place of safety,

iv) Arrange for Child A's siblings, Child B and Child C, to be accommodated overnight in a place of safety;

b) Dropped Child A off at the road side on C Road without undertaking a proper risk assessment;

c) In relation to accompanying Theresa Joseph, to see Child A's parents:

i) Were directed by your manager, Cheryl Sandiford, to accompany Theresa Joseph to see Child A's parents;

ii) Did not accompany Theresa Joseph to see Child A's parents;

d) Did not report back to Cheryl Sandiford;

i) Adequately, or

ii) At all.

2) On 10 May 2005 at a Strategy meeting which you attended in your role as Deputy Team Manager you:

a) Chaired the said Strategy meeting,

b) Did not inform the Interim Team Manager or other attendees of your involvement with Child A on 5 May 2005.

3) Between 5 May and 10 May 2005 you did not record your actions on 5 May 2005 in Child A's file:

b) At all.

And in the circumstances you are guilty of misconduct.

All these allegations except 1(d) (i) and (ii) were admitted by the Appellant.

Once the facts have been admitted or established the Committee, guided by the Indicative Sanctions Guidance (ISG), consider mitigation and the appropriate sanctions if any.

PRELIMINARY LEGAL POINT

The Appellant submitted that as the Head of Conduct for the Respondent was the co-author of the Indicative Sanctions Guide (ISG) for the GSCC that this had undermined the Appellant's right to a fair trial. His department made the preliminary screening of the case. He then signed a recommendation for the following Preliminary Committee (PPC2) as to the actions of that Committee in the Appellant's case. His department had responsibility for the prosecution of the Respondent's case. Finally, and of most concern in the Appellant's submission, he was the co-author of the Indicative Sanctions Guide which was followed by the Conduct Committee.

The Appellant argued that because the Head of Conduct for the Respondent had been involved with the Indicative Sanctions Guidance which was used by the Conduct Committee once they had established the fact of misconduct in order to determine the sanction, the decision was biased and that the GSCC was unduly influenced in its decision making process.

We were directed to the test in R v Gough which states "The Court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."

In reply the Respondent noted that ISG documents are commonplace within professional regulatory schemes. The Tribunal had the advantage of seeing such schemes for the Nursing and Midwifery Council and the General Medical Council.

The Respondent noted that ISG documents have been approved by the courts in dealing with appeals from Regulators. Collins J stated in R (on the application of Bevan) v General Medical Council ([2005] EWHC 174 Admin, para 40) that, in relation to the GMC's ISG:

"they are indeed most helpful and I note that the legal assessor in this case specifically referred to them and relied upon them in the assistance that he gave to the Committee. It does not seem to me to matter who drafted them, provided their contents are sensible and helpful, and quite clearly their contents are indeed, in my judgement, sensible and helpful."

The Tribunal decided that the Appellant was not prejudiced. We had a copy of the ISG for the Respondents. The ISG does not seek to fetter the Conduct Committee. The Tribunal noted that the Head of Conduct was the co-owner and possibly co-author of the ISG. Certainly he had approved the document. It was helpful to see the ISG for the other professions and to note the similarities in approach. There was no evidence that the Head of Conduct for the Respondent was personally involved with the case.

Further we accepted the guidelines suggested in the case of Bevan above and agreed that the contents of the ISG in this case was sensible and helpful. The GSCC's Conduct Committee is an independent body, made up of three (or sometimes five) members. The committee has a majority of lay members and one person with relevant experience of the applicant's area of practice; the GSCC (Conduct) Rules 2003 see Rule 7. The ISG guidance is only referred to once the facts have been established.

The Tribunal therefore concluded that there was no real possibility or danger that the independence and impartiality of the GSCC Conduct Committee was compromised by the Head of Conduct's involvement in the ISG or the process generally. We found against the Appellant on this point.

THE EVIDENCE HEARD AND READ

We heard from the Appellant. In addition we had five bundles of some 1100 pages. The documents included amongst other documents:

(1) Conduct and Disciplinary Investigation by the London Borough of Waltham Forest (the Council) including interviews with all the staff involved.

(2) Minutes of Disciplinary hearing by the Council 20, 23, 25 and 30 January 2006 for the Appellant.

(3) Minutes of the Appeal hearing by the Council 8 May 2006 and the decision of the appeal in a letter dated 13^th June 2006.

(4) Full transcript of the proceedings before the GSCC Conduct Committee 11, 12, 13 and 14 February 2008 including the decision and reasons of the Committee.

(5) Statements by the Appellant for internal disciplinary appeal, for the Respondent's hearing and for this hearing.

(6) Statements by witnesses to GSCC committee.

(7) Contemporaneous notes by witnesses regarding the incident complained of.

(8) Minutes of the meeting on 10 May 2005.

EVENTS LEADING TO THE COMPLAINT

The Appellant qualified as a Social Worker in 1999 and was employed by the London Borough of Waltham Forest. She worked in the Children Assessment Team. In June 2005 she was promoted to be a Deputy Team Manager (DTM) in the Family Support Team Number 1.

The incident complained of related to Child A, aged 14 (date of birth 22 July 1991), in May 2005. By way of background the family were known to Social Services. The first referral came in on 2 June 2003, so at the time of the incident on 4 May 2005 Child A and the family had been known to Social Services for about two years. The initial referral comprised an allegation that Child A was constantly being beaten by her father. Child A and her siblings were subsequently placed on the Child Protection Register under the category domestic violence. Subsequently, they were categorised under the heading emotional abuse. In the early part of 2005 their names were removed from the Child Protection Register. Until March 2005 the social worker allocated to Child A was Jeff Poe. In March the team leader, Pat St Louis re-allocated the case to a social work assistant Theresa Joseph. The Appellant had signed the allocation form.

The Appellant had had some contact with the case in that in her manager's absence, in March 2005, she had written a holding letter to the grandmother of the child after the grandmother had complained that "social services were washing their hands of Child A when 'her behaviour demonstrated that she is gravely disturbed'".

On Thursday 5^th May 2005 Child A presented at the Family Services Unit office at around 12.30pm that day asking to see a family support worker. Various telephone conversations took place, the Family Services Unit spoke to Social Services, and as a result Child A agreed to go over to the Social Services offices and she arrived at around 3.35 pm that afternoon and spoke to Theresa Joseph her allocated worker. Child A said that on the previous day she had arrived home at 4.30 after spending time with her friends from school and that her father had hit her with the hi-fi system because she was late coming home. He had threatened to kill her and thrown a plastic pole at her head. Child A had a scar and lump on the right side of her forehead after being hit. She did not want to go home.

On Thursday 5^th May 2005 when the incident occurred, the team manager for team one Pat St Louis was suspended, there was a vacancy for the Senior practitioner. There were five social workers in the team and one social work assistant and these were all in post.

On 5^th May 2005 the Appellant was on the first of a two day training course. At the end of the course she checked her phone and noticed a missed call. It was not evident who it was from but in case it was from the office she phoned and spoke to Cheryl Sandiford who was providing manager cover to check whether she had called the Appellant. Cheryl Sandiford said she had not called her but that there were two cases in crisis and she asked the Appellant to come back into the office, which she did, arriving back at about 4.40 pm.

When the Appellant arrived in the office Theresa Joseph assisted by Cecile David was dealing with the case. The Appellant spoke to Child A. She saw the injuries and was told by the child that she did not want to go home. The instruction from Cheryl Sandiford to Theresa Joseph was to get the child medically examined and to obtain parental consent for this. As the Appellant was the only driver in the party returning the child, with Theresa Joseph and Cecile David, she drove her two colleagues and Child A to Child A's home. When they were near to the flat Child A said that she wanted to return a jacket to a friend who lived nearby. It was agreed that she could do this and that she was to return to the same place to meet with the social workers (Theresa Joseph and Cecile David) after they had spoken to her parents. The Appellant had decided that two social workers would be enough to call at the parental home.

The social workers were then taken to the family home by the Appellant. After an hour they returned to meet Child A who was not at the prearranged place. It appears that the child had returned and waited for a while before going away again.

The Appellant said that she had returned to the office to tell Cheryl Sandiford what had been arranged. This was denied by Cheryl Sandiford. From a file record by Theresa Joseph it appears she, Theresa Joseph, informed Cheryl Sandiford that the child was missing and was told to inform the parents who in turn were to report the matter to the Police.

On Friday 6^th May Child A contacted the FSU and said she was staying with a friend. There was a referral to the child abuse Investigation team at Woodford Police station who received a form 87a at 14.30 that day with a report 'dealing with an allegation of assault that child A had made against her father'. The police officer spoke to Jeff Poe who stated that' the subject was very well known to Russell Road Office and that there were no concerns about the potential violence at the hands of the subject's father. Instead the subject posed more of a risk to herself because of her inability to keep to family rules and boundaries..… J explained that the child had run away from home and that she had bee reported missing to police. J was to report back with any result of the medical examination' The police officer decided that 'given the information that I had received I was happy that this was an appropriate course of action that would serve the best interests of this child'.

Subsequently, very late on Monday 9^th May 2005, Child A was admitted to Whipps Cross Hospital intoxicated with alcohol and in a poorly state. On the Tuesday 10^th May 2005 the Social Services Department was informed of the child's whereabouts and Farida Patel was allocated as the social worker for Child A. She visited her in hospital.

On Tuesday 10^th May there was a meeting about Child A. The Appellant expected it to be a professional meeting but she said it became a strategy meeting with the police and FSU in attendance. She was asked to chair the meeting. The Tribunal saw the minutes from that meeting.

A complaint against the Appellant was that she did not tell the meeting of her involvement with Child A on 5^th May. Because of what had happened to Child A there were concerns about the actions and responsibilities of the individuals involved.

In respect of the Appellant these were in three main areas. The first one was a failure to safeguard Child A and her siblings when confronted with an obvious child protection issue relating to Child A on 5 May 2005; the second issue was a failure to inform colleagues, working partners, of her prior involvement in the case at a strategy meeting; and also, thirdly, a failure to make any notes of her involvement in the case.

The Appellant's departmental manager Julie Penny conducted an internal disciplinary investigation which resulted in the suspension and dismissal of Cheryl Sandiford and a disciplinary hearing with the Appellant in January 2006. The Appellant had not been suspended but was on restricted duties. At the end of the internal hearing she was dismissed for gross misconduct.

However, after an internal appeal from that decision (in May 2006) she was reinstated but demoted and no longer permitted to work within the Children's Services. The letter notifying her of the outcome dated the 13^th June 2006 stated that the chairman had allowed her appeal on the grounds that "the action taken (i.e. dismissal) was too severe in the circumstances of the case."

The Appellant was found suitable alternative employment from August 2006 until August 2007 as a visiting officer within the Adult and Community Services Financial assessment Unit. The Appellant told the Tribunal in her evidence that in August 2007 that job ceased and that since then she has been on garden leave.

In March 2006 a complaint or notification of the situation had been sent to the Respondents. Their process of sifting and assessing the complaint then proceeded. This resulted in the hearing before the Conduct Committee in February 2008 with the decision that the Appellant should be removed from the Social Work Register. The Appellant appeals against this decision.

THE MANAGEMENT STRUCTURE OF CHILDREN'S SERVICES AT THE COUNCIL

The management situation at Waltham Forest Children's Services , in Social services in May 2005 needs to be outlined. Waltham Forest had been subject to special measures from 2002 to 2004; by May 2005 they had come out of special measures. Julie Penny was the head of the family support service, (Group manager) which was where the Appellant was working and this comprised five teams: Julie Penny is and was the Group Manager for that service and she was the officer that undertook the investigation into the incident. She had been in post since February 2004. In Waltham Forest Council the structure of each family support team, if at full capacity, should have a team manager, a deputy team manager, six social workers and two social work assistants. In team 1 Pat St Louis was the Team Manager, although she was suspended form duties on 6 April 2005 following an investigation into another case. Tricia Forbes was the Deputy Team Manager there. Then there were the various social workers within the team; Cecile David was within the team, as well as Farida Patel. Underneath those there was Theresa Joseph, a social work assistant, again within Tricia Forbes' team. As noted above there was a senior practitioner vacancy. An Interim Team Manager, Lenna Coker Thompson, started on 9 May 2005, so that was just after the incident in question, and in the intervening five weeks between the Team Manager being suspended and Lenna Coker Thompson starting, Julie Penny provided management support to the Appellant. Also, another Team Manager, Cheryl Sandiford, mentioned above provided managerial support to the team over that period.

THE DECISION OF THE GSCC CONDUCT COMMITTEE

The Committee noted in its decision letter dated 20 February 2008:

The Committee was reminded of the following:

1) In accordance with Rule 25(2) or Schedule 2 of the Rules, "In deciding what sanction is to be imposed, the Committee shall take into account:

1. the seriousness of the Registrant's Misconduct;

2. the protection of the public;

3. the public interest in maintaining confidence in social care services;

And;

4. the issue of proportionality."

2) The issue of proportionality requires the Committee to take into account and balance a number of different considerations, in particular, the objectives of the Council (protection of the public and the upholding of the proper standards of, and public confidence in, the Social Work profession) and the right of the Registrant to practice without interference.

3) The Committee must ensure that any restriction it determines to place on the Registrant's right to practice was appropriate and connected to the objectives to be achieved so it was not arbitrary, unfair or based on irrational considerations.

4) Any restrictions imposed by the Committee must also be necessary to accomplish the objectives intended – the Committee must adopt the least drastic means available to it of achieving the objective or objectives in mind.

5) Any restrictions imposed must not be disproportionate. It must not impose a burden or cause harm which was excessive when compared to the importance of the objectives to be achieved.

The Committee then recorded its decision as follows:

The Committee decided to make an order for the removal of the Registrant's registration from the register.

The reasons for the Committee's decision were as follows:

1) The Committee carefully considered all of the evidence before it and the submissions made on behalf of both parties. It accepted the advice of the Legal Adviser and in reaching its decision took account of the factors identified in Rule 25 (2) OF Schedule 2 of the Rules.

2) In failing to treat Child A's disclosure, as drawn to the Registrant's attention by Child A and her colleagues, as a child protection matter and acting accordingly, she failed to recognise and fulfil her fundamental responsibilities as a Social Worker to protect the interests of a vulnerable service user. Her actions put the service user at serious risk.

3) This serious failing was exacerbated by the Registrant's subsequent decision to drop Child A off at the road side without undertaking a proper risk assessment. Child A, already vulnerable, was left exposed to further risk. Even a basic risk assessment would have identified this risk. When making this decision the Registrant was acting as a Social Worker and, therefore, was professionally responsible for her own actions. There were a number of other more appropriate actions that the Registrant could easily have taken, such as remaining with Child A herself or ensuring that another Social Care worker remained with her or arranging for Child A to be returned to the social work base. In any event, this situation need not have arisen if the Registrant had listened appropriately to Child A. Child A was clearly indicating that she had experienced physical abuse at the hands of her father the previous day and showed the Registrant the injury caused. Child A was adamant, as she had been throughout her contact with social care staff, that she did not want to return home. It should have been obvious to the Registrant that returning Child A to her parents' home was a wholly inappropriate action. There must have been a real risk that Child A would have been faced with father. Although instructed to act in this way the Registrant's professional responsibility was to question this instruction in the best interest of the child.

4) The Registrant's failures in relation to Child A were further compounded by her actions in failing to disclose her involvement in Child A's case on the 5^th May at the Strategy meeting on 10^th May 2005. The purpose of such a meeting is to share and evaluate information and plan future action in order to safeguard the child. By deliberately failing to do so for reasons concerned with the Registrant's own position she inappropriately put her own interests above those of Child A. This was inexcusable even taking into consideration the Registrant's difficult working environment at that time. By the time of the meeting the Registrant should have understood the significance of her involvement on the 5^th May and reported fully on it. The need for her to report on her involvement was crucial as others involved on the 5^th May were not present at the meeting.

5) By not recording her actions of the 5^th May between that date and 10^th May, the Registrant breached a fundamental tenet of social work practice. The importance of record keeping cannot be underestimated. Recording is essential to facilitate information sharing – a key aspect of social work practice.

6) By her actions the Registrant breached a number of the provisions of the Code of Practice for Social Care Workers, more particularly the following: 1.2, 2.2, 3, 4.2, 4.3, 5.1 (in that the Registrant neglected service users), 5.7, 6.1, 6.2 and 6.5.

7) In reaching its decision on sanction the Committee took into consideration the following mitigating factors:

That the Registrant had worked as a Social Worker for over 5 years and had not been subject to any previous disciplinary action by her employer.

The Registrant has no previous disciplinary record with the General Social Care Council.

The staffing resources and the working environment in which the Registrant was operating – in particular in the absence of a team manager.

That the Registrant was an inexperienced manager and she had not previously chaired a Strategy meeting.

The matters before the Committee occurred over a short period of time and were interrelated. To this extent it was an isolated incident.

The Registrant's indication in her evidence that she would act differently were she to be faced with a similar set of circumstances in the future.

The admissions made by the Registrant at various stages during her employer's investigation, although these were not made at the first available opportunity.

The admissions made by the Registrant to the GSCC.

The limited insight demonstrated by the Registrant.

8) The Committee also took into consideration the following serious aggravating factors:

The completely unnecessary and serious risk of harm at which the Registrant put a young and vulnerable service user by her actions.

The Registrant's failure to recognise and act on the clear child protection issues. These were identified by other less experienced colleagues and have been in the forefront or reports and guidance to Social Workers in recent years.

The length of the Registrant's social work experience including a substantial time in children's assessment teams. This would routinely have involved crisis intervention and child protection matters.

The Registrant's failure to take into account her prior knowledge of the child and her family. She had previously attended two child protection case conferences in relation to Child A and her family.

The Registrant has, over time, provided a number of different and, in parts, contradictory accounts of her involvement between 5^th and 10^th May 2005. Indeed the Registrant was, at times, self contradictory in her oral and written evidence before the Committee.

The Committee was not satisfied that the Registrant had demonstrated a consistent insight into her failings. She had failed to consistently and fully acknowledge her professional responsibility for her actions. The Committee considered that, at times, she demonstrated a defensive attitude and was seeking to shift responsibility for her professional failings onto others when giving oral evidence to the Committee.

That whilst the various matters concerned in the allegation are interrelated and occurred over a short period, they were different in nature and were not necessarily consequent on each other.

9) The Committee initially considered whether it was appropriate for no sanction to be imposed and decided this was inappropriate in light of the seriousness of the Registrant's misconduct and the need to protect the public from risk of harm and uphold public trust and confidence in social care services.

10) Consideration was then given to the administration of an admonishment. The Committee decided that this would be insufficient to mark the seriousness of the misconduct and to uphold the reputation of, and maintain public confidence in, the social work profession.

11) The imposition of a suspension order was then given due consideration by the Committee. It noted that there would be no review of the Registrant's ability to practice as a Social Worker at the end of any period of suspension imposed. This raised concerns in the Committee's mind as to the appropriateness of suspension in this case where serious fundamental failings in professional practice have taken place. This, together with the Registrant's failure to demonstrate full insight, made the imposition of a suspension order insufficient in this case. Such an order would neither protect the public nor maintain public confidence in, and standards of, the profession.

12) Taking into account all of the above matters, including the mitigating and aggravating factors, removal of the Registrant's registration was the only appropriate sanction in this case to ensure that the objectives of the Council, including the protection of the public, were met. The Committee considered that this was a proportionate response in all of the circumstances of the case.

THE APPELLANT'S EVIDENCE

The facts of what had happened between the 5^th and 10^th May 2005 were not in dispute. However there were issues of responsibility and decision making which were disputed. The Appellant explained the structure of her team, in that, as deputy team manager, she supervised 2 of the 6 social workers. At the time of the incident Pat St Louis her manager had been suspended and had been away form the office for 5 weeks in relation to a different matter. As a result the Appellant was attending many more meetings as the team manager.

In the manager's absence, Cheryl Sandiford was providing management cover. The Tribunal noted that there was a dispute by Cheryl Sandiford about the formality of this arrangement. However on Thursday 5 May 2005 when the Appellant was on the first day of her course, Cheryl Sandiford was giving management cover and took the initial action regarding Child A. The Appellant said that she had spoken to Cheryl Sandiford to ask her if she wanted her to withdraw from the course in the circumstances of staff cover but had been told to carry on with the course.

The Appellant said that Theresa Joseph as a social work assistant only dealt with S20 children in need cases as opposed to S47 child protection cases. Child A had been taken off the Children at Risk Register (at the end of January 2005) and had recently been allocated to Theresa Joseph from another social worker. The Appellant came in at the end of a day's training to help out. As noted above she had rung the office in respect to a missed unidentified call listed on her mobile as 'private number' then went back into the office. She viewed herself as assisting and that Cheryl Sandiford as the manager was in charge of the case.

The matter was being dealt with as a child in need case (S20 Children Act 1989) with instructions given for the Child A to be medically examined with her parents' consent. The Appellant had spoken to Child A and seen her injuries and knew she did not want to go back home. When she, together with Theresa Joseph and Cecile David got near Child A's home, Child A said she wanted to return a jacket to her friend nearby. This was agreed by the Appellant with the other two social workers present on the understanding Child A would return to speak to them about the outcome of the conversation with her parents. The Appellant decided that only two social workers needed to speak to the parents and three workers could be perceived as oppressive.

The Appellant said that Child A who was 14 at the time was 'street wise' and was going to a friend's house very near her own home to return the coat. The Appellant felt she had made a risk assessment of the situation and that it had been agreed that Child A would return to where she had been dropped off to meet the social workers after they had spoken to her parents. They expected to be about fifteen minutes and in fact were an hour on the visit. Child A, who had returned to meet them, then went off again. It was in the context of the lateness of the team members returning to the agreed meeting place that child A, who it appears had returned to it as agreed, had then removed herself prior to their return.

Looking back at what had occurred, the Appellant said that wrong decisions had been made. Child A should have been listened to more and one worker should have gone with her to return the jacket. The Appellant said that she considered she was acting to provide assistance and support to Theresa Joseph. With hindsight she should have challenged Cheryl Sandiford and her suggested way of dealing with Child A. She said she was caught up in what happened on the day and 'didn't stand back' and look at the situation. It was part of the culture in Waltham Forest that managers were not challenged in the team. This point was made by a number of social workers who gave evidence at the disciplinary and GSCC hearings.

During this time and particularly when Pat St Louis was suspended the Appellant was required to attend many meetings as "the manager" whilst also doing her own work from her allocated case load. With respect to the meeting on the 10^th May 2005, she said that it was the first time she had chaired such a meeting and she felt unprepared and lacking in confidence as it turned into a strategy meeting. She was conscious of her new manager Lenna Coker Thompson being present and members of outside agencies. Information was given from Theresa Joseph's note but the Appellant did not disclose her involvement on 5^th May 2005. She considered that other social workers involved in the case should have been present at the meeting, especially when its status was a strategy meeting under child protection. The Appellant said she initially assumed it to be a professional's meeting, albeit multi-agency and was therefore, unprepared.

The Appellant described the situation in her team by May 2005. She said the team members did not like change and had not adapted very well to her coming in as the Deputy Team Manager. They were 'hit hard' (i.e. adversely affected in team morale) by the suspension of the team manager Pat St Louis and that the Appellant was doing both jobs until Lenna Coker Thompson was appointed as interim manager and started work on 9^th May 2005.

ISSUES TO BE DETERMINED

The following heads of dispute were identified by the Appellant and were addressed by both parties. The Tribunal therefore records its findings on these issues. We have used the numbering on the original list.

1. Was the sanction imposed by the Conduct Committee disproportionate?

2. Did the evidence as to the alleged seriousness of her actions support the decision to remove the Registrant's name from the Register?

The Tribunal considered these points to be at the heart of the matter and have therefore addressed them at some length in the following sections "Findings" and "Conclusions".

3. Were sufficient reasons given for the decision by the Committee in relation to their decision on sanction?

The Tribunal accept that cogent reasons were given for the decision. The facts were admitted. We disagree with the severity of the sanction as outlined below.

4. Does the fact that the Indicative Sanction Guidance was co-written by the GSCC's head of Conduct mean that the hearing was unfair to the Appellant?

This matter has been covered as a preliminary issue.

5. Were the following factual decisions of the Committee supported by the evidence adduced during the course of the hearing?

a) The Finding that Child A was put at serious risk.

The Appellant acknowledged that letting the child go with the jacket was the wrong decision. There was potential for serious risk.

b) The finding that "The Registrant [had not] listened appropriately to Child A"

Again, the Appellant accepted this point.

c) The finding that "by deliberately failing to do so for reasons concerned with the Registrant's own position she inappropriately put her own interests above those of Child A"

This relates to the non-disclosure at the meeting on 10 May 2005 and the Appellant says that while the relevant information was available she should have spoken of her involvement.

d) The finding, as a seriously aggravating factor, that "the Registrant's failure to take into account her prior knowledge of the child and her family"

Her prior knowledge of the child and family was not from personal responsibility but she was aware of the status of the child protection procedure.

6. Did the Committee fail to give reasons for the assertion that the Registrant's account was inconsistent?

They gave reasons by comparing witness statements and evidence to various disciplinary hearings. The Tribunal found that the discrepancies were not great, bearing in mind the length of time involved and the Appellant's opportunity to reflect on what had happened.

7. Was the decision inconsistent with the prior Interim Suspension Order (ISO) hearing before the Preliminary Proceedings Committee?

We do not accept this. The ISO (which did not impose an interim suspension) is a separate body to the PPC and to the Conduct Committee – each body is entitled to make its own decision.

8. Whether the Committee should have been required to provide reasons as to which individual facts amounted to misconduct and required to state what level of sanction should be applied to each area on which misconduct was found.

We do not accept this suggestion. The allegations and events took place over a short period of time and amounted to one course of action which it was appropriate to judge as a whole and apply a sanction.

9. Whether the Committee's finding of the Registrant displaying a "defensive attitude" as a "serious aggravating factor" did not take account of the cultural background of the Appellant.

We accept the Respondent's submission that cultural issues were not raised at the Conduct Committee hearing and were not elaborated before the Tribunal. Equally we accept that the Appellant was defending herself and may on occasions have appeared defensive when this was not the impression she intended to convey.

10. Did the decision of the Committee to consider the formal allegations of misconduct as one single allegation of misconduct prevent the Registrant from being able to put the case that some components of the misconduct findings should not have been viewed as seriously as others, or not seen as misconduct?

See the finding on point 7 above. The Appellant could and did make this point. The series of events followed from the initial decision. To some extent each area was looked at separately.

11. Should the Registrant's actions have been seen as misconduct at all or should it have been adjudged lack of competence?

The Tribunal were referred to the case of LA v GSCC in respect to this point. However, that case involved a refusal to register as opposed to a decision to remove from the register. There are two separate sets of rules for such cases. The GSCC has its own distinct definition of misconduct: under the Conduct Rules, misconduct is defined as "conduct which calls into question the suitability of a Registrant to remain on the Register". A lack of competence can amount to misconduct and paragraph 6 of the Code of Practice emphasises the fact that a Social Worker is required to work at a competent level. Under Paragraph 23 (4) of the Rules the Committee shall have regard to the Code of Practice in deciding the issue of misconduct. We accept that under the Conduct committee rules a finding of misconduct as defined above can include issues of competence.

FINDINGS

Having read the papers, listened to the Appellant's evidence and read and heard submissions we made the following findings.

The Incident. There were two main components to what happened. Firstly the instructions to the Social Workers on the 5 May 2005 which the Appellant said had had originated with Cheryl Sandiford. She accepted that she had not challenged this decision. Secondly the decision in the car when Child A was allowed to go and take a jacket to her friend. The Appellant acknowledged that this had been a wrong decision. In terms of her previous knowledge of the child she said that she would have been aware that Child A had previously been on the child protection register and she remembered the child being de-registered.

At this point the Appellant saw herself as assisting the social workers with direct care involvement. The Appellant said she gave a verbal report back to Cheryl Sandiford, who disputed this. The Appellant went on the second day of her training course on Friday 6^th May 2005 and was not contacted by anyone from the office. On Monday 9^th May the new interim manager Lenna Coker Thompson started work and the Appellant was engaged during that day. The appellant said she knew about the child's situation on Monday 9^th May. She was told about Child A being in hospital on Tuesday morning 10^th May, and then went to an adoption meeting before attending the strategy meeting in the afternoon.

We saw a case note recording what happened on 05.05.05, made by Theresa Joseph and dated 10.05.05. This confirmed the account of what had happened on the 05.05.05 and added that "CS Team manager was made aware of the situation". The Tribunal noted a further case notes from Theresa Joseph, one dated 06.05.2005 which said that Child A had phoned in on the 6 May 2005 and was staying with a friend. Theresa Joseph told her the outcome of the conversation with her parents and that she should go home otherwise she would be reported to the police as missing.

After the decisions on the 5 May 2005 the Appellant was not involved or informed of developments in the case until she was told of the current situation on the 9^th May 2005.

The strategy meeting. We therefore turn to the circumstances of the Strategy meeting on 10.05.2005. We note the new interim manager had started the day before. On the morning of the 10 May 2005 it was reported that Child A was in hospital suffering from drinking a bottle of vodka. The Appellant was asked to chair the meeting and we accept that she did not disclose her role in proceedings on 05.05.2005. She admits this. As noted above she says she considered she was lacking in experience and training in chairing strategy meetings, and she felt unsure. In fact from the minutes of the meeting it is evident that all the factual information was available. It also emerged that the police had been asked to intervene on the 6^th May 2005 but had declined to do so. The Appellant accepts that she should have told the meeting of her involvement.

We conclude that the Appellant did not tell the strategy meeting of her role on 05.05.2005 because of her inexperience in such meetings, the fact the Council had recently come out of special measures and external agencies and her new manager were present. This was a grave error of judgement and her poor performance was partly accounted by, being caught suddenly in the situation.

Record keeping. The Appellant accepted that she had not kept records in this case. However there was no evidence that there were other lapses in her record keeping.

As a result of the events surrounding Child A and the meeting there was an internal disciplinary investigation led by Julie Penny, the head of the department. The subsequent disciplinary hearing in January 2006 was chaired by Jo Olsson, Deputy Director of Children's Services. We note that neither Theresa Joseph nor Cheryl Sandiford gave oral evidence to that disciplinary hearing, to the internal appeal or to the Respondent's hearing. Their written statements were available to the hearings but they could not be questioned on them. We note that the independent review conducted by another unrelated head of department reinstated the Appellant.

It appears to the Tribunal that there were management gaps (e.g. Pat St Louis suspended and other suspensions) in essential first line management and supervisory posts. The Appellant felt unsupported and had an increased work load in a post where she was relatively recently appointed.

The job description of the Deputy Team Manager DTM does not provide for that person to chair strategy meetings. The Appellant told the Tribunal that she had had no training in the role. That function together with the oversight of complex cases is listed in the job description of the Team Manager, TM. The Tribunal compared both job descriptions evidenced in the bundles.

We find that Theresa Joseph's contemporary file note records that Cheryl Sandiford was informed of what had happened to Child A on 05.05.2005. The department had a message from Child A about her whereabouts on the 6^th May and the Police Child Abuse investigation Team were notified on that date.

Child A had recently (end of January 2005) been de-registered from the Child Protection Register and allocated to a Social Work Assistant; this is a context of de-escalation in the situation.

Consistency and insight

The Appellant has not been completely consistent in her evidence over all the disciplinary hearings and reviews. In many respects she has moved to accept more responsibility for what happened as time has gone on. The Tribunal accepts that her insight is such that she appreciates what she should have done and often, reflection is very much an accepted integral tool in learning theory.

ISG – the guidance for competence amounting to misconduct is set out in this document. It appears to the Tribunal that the Appellant falls within the positive mitigation on each point listed in the guidance, which we have attached as a schedule to this decision.

THE TRIBUNAL CONSIDERED A NUMBER OF INTER-RELATED ISSUES AND IN PARTICULAR, WOULD DRAW ATTENTION TO THE ORGANIZATIONAL CONTEXT WHICH THE APPELLANT FOUND HERSELF OPERATING UNDER AND HOW WELL SHE WAS EQUIPPED FOR THE ROLE EXPECTED OF HER.

The internal investigation conducted by Julie Penny, Group Manager, into circumstances surrounding serious misconduct of her own senior officer was not helpful. As it happens, Julie Penny has direct management responsibility for the entire service. An aggrieved party such as the Appellant could consider this as pre-planned action to distance senior management from blame especially with child protection red alerts being examined.

The apparent chaos within the team; a suspended manager, an interim manager and an apprentice deputy team manager should have triggered higher management action to ameliorate the inevitable pressures bearing upon the front-line staff. In addition, the "ad hoc" allocation of line management staff/case responsibility as shared between the 2 supervisory staff can be confusing in a crisis situation. In such a situation, weakened decision- making can occur.

The tribunal notes the prevalent culture as alleged within the team and the organisation; a lack of communication contributing to low team morale and disunity following the suspension of the permanent Team Manager. The delegated responsibility in meeting and inducting the new team manager (Lenna Coker-Thompson) by the Appellant during this period of unfinished crisis from weekend before, was a little unfair (as noted by Appellant). Furthermore, an absence of easy access to senior management support and guidance, left the Appellant unsupported in her role. Also, the organisation's unrealistic expectations of "junior" first-line managers such as Appellant, exarcebated the confusion and at worst, victimized Appellant.

The tribunal notes that other significant individuals were suspended as investigations were conducted about their respective roles in this alleged mishandling of the case but the Appellant was not prioritised for such similar suspension. The Appellant continued working for some time. This conveyed a false sense of security for the Appellant; if her actions did not warrant suspension, the ultimate outcome of dismissal appeared inconsistent and harsh. This was duly recognised by the appeals hearing.

The tribunal notes the lack of care the Council appeared to have exercised in this case to its staff member and views with concern that someone can be put on paid leave of absence for such a considerable time. It is difficult to fathom how, with the resources available to the Council, there were no opportunity where the Appellant could be found an alternative posting during the period of garden leave.

CONCLUSION AND DECISION

In all the circumstances of this case we conclude that the sanction applied was too severe. A relatively newly appointed DTM was left without effective management cover nor was there evidence of management support. She returned to the office after a day's training to help and did not view herself as the social worker in charge of the case of Child A. She acknowledges with hindsight that she should have acted differently and challenged the instructions of Cheryl Sandiford. It was one incident and she has no previous disciplinary matters or complaints since her qualification in 1999.

The Appellant on her own admission made serious failings in this case however in light of what she has said and the mitigating factors as set out in the GSCC's own ISG we do not consider the failings so serious as to warrant her removal from the register. We note in passing that no other person involved in this case appears to have been subject to an investigation by the GSCC.

In terms of public protection we accept that the Appellant has learnt her lesson and that there is very little risk of her acting in such a way again. With respect to public confidence in the services we find that in the context of what happened and the Appellant's role in it, that an alternative sanction would have been appropriate and proportionate.

The Tribunal notes that one of the reasons, given by the GSCC conduct committee for not giving a suspension in this case was that 'there would be no review of the Appellant's ability to practice as a social worker at the end of any period of suspension imposed'. In reality, the Appellant is likely to have to undertake further training before she is employed in Children's Services again.

We therefore allow the appeal. The Care Standards Act (S68) does not give the power to substitute an alternative sanction but as we indicated at the close of the hearing we would have considered suspension an appropriate sanction. The Appellant has not worked in children's services since January 2006 and has had no employment since August 2007 and may be viewed as having in effect been suspended as a social worker for one year.

APPEAL ALLOWED.

Our decision is unanimous

Maureen Roberts

Jim Lim

Paul Thompson

3^rd October 2008

SCHEDULE FROM ISG for GCSS

COMPETENCE

	Mitigating Factor	Aggravating Factor

Many complaints from service users	No	Yes
Insight	Apparent	Absent
Mitigating factors (for poor performance)	Yes	No
Level of supervision (if working)	Inadequate	Adequate
Risk of continuing poor performance	Low	High
Long history of poor performance	No	Yes
Many categories of cause for concern/unacceptable (in relation to the Performance Assessment)	No	Yes
Followed previous recommendations of Committee? (if relevant)	Yes	No
Likelihood of rectifying areas of concern (Stage in career, age, attitude)	Strong	Poor
Evidence of efforts to address areas of concern	Yes	No
Cause for concern relates directly to treatment of service users	No	Yes
Improvement since first assessment (if relevant)	Yes	No
Compliance with assessment	Good	Poor
Insight / remorse	Apparent	Absent

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You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Forbes v General Social Care Council [2008] EWCST 1267(SW) (03 October 2008) URL: http://www.bailii.org/ew/cases/EWCST/2008/1267(SW).html Cite as: [2008] EWCST 1267(SW)