Evan Philip Morkel-Clemens

-v-

The General Social Care Council

Application No.  [2009] 1605.SW-SUS

Before:
Mr John Reddish (Tribunal Judge)
Ms Jennifer Cross
Mrs Susan Howell

Hearing date:  3 December 2009

Appeal
On 26 August 2009 the Applicant appealed, under section 68 of the Care Standards Act 2000, against the decision of the General Social Care Council, made on 3 August 2009, to suspend him from the register of social workers for six months.

Representation
The parties did not attend the hearing and were not represented because, the Applicant having indicated that he would prefer a “paper hearing” and the Respondent having raised no objection, on 17 November 2009 the Principal Judge, Care Standards directed that the appeal should be determined on the basis of the bundle of documents submitted.

Evidence
The Tribunal read the Applicant’s Appeal Application Form and the addendum thereto dated 26 August 2009; the Respondent’s Response to Appeal dated 13 November 2009; the Notice of Decision of the Preliminary Proceedings Committee made on 3 August 2009; a transcript of the hearing before the Preliminary Proceedings Committee dated 11 August 2009; the Application for an Interim Suspension Order dated 7 July 2009; the GSCC Complaint Form submitted by West Berkshire Council dated 26 November 2008 and the enclosures thereto; the letter from the Applicant to the GSCC dated 4 November 2008 and the enclosures thereto and the bundle of additional documentation prepared for the Interim Suspension Order Hearing on 3 August 2009, including the contents of the file opened and maintained by the Respondent following the Applicant’s application for inclusion on the register.

Facts
The material facts found by the Tribunal were as follows:

1.	The Applicant was born in South Africa in February 1944 and is 65 years old.  He now lives in Switzerland.

2.	The Applicant holds a degree in social work awarded by the University of Cape Town in 1971.  He was registered as a professional social worker with the South African Welfare Board, later the South African Council for the Social Work Profession.

3.	From April 1971 until August 1971 the Applicant was employed as a probation officer in the Juvenile Court in Cape Town.

4.	From January 1972 until December 1973 the Applicant trained as a teacher at the University of Cape Town and thereafter worked as a teacher in two schools in Cape Town.

5.	From May 1974 until April 1976 the Applicant led the South African National Antarctic Expedition.

6.	The Applicant then worked as a counsellor and teacher in South Africa until 1986, when undertook two years further study at the University of Cape Town and was awarded a Master’s degree in Environmental and Geographical Science.

7.	In 1990 the Applicant moved to Germany (the country of his mother’s birth) and was employed there, as a teacher in Koblenz and as a “social education worker” in Montabaur, until June 1994.

8.	From November 1995 until October 1996 the Applicant was employed as a social education worker by the Christliches Jugenddorfwerk Deutschlands (Christian Youth Villages Organisation of Germany).

9.	After several periods of unemployment and several short-term teaching jobs, the Applicant was employed for three months, from November 1999 until February 2000, as a social worker and was engaged in the reintegration of premature school leavers.

10.	From October 2001 until May 2002 the Applicant worked as a social worker for the Internationaler Bund in Koblenz, supporting young people in their attempts to obtain work.

11.	From July 2002 until December 2005 the Applicant worked as a teacher in a special school in Nordhausen, Germany.  He was then unemployed for more than a year until he came to England.

12.	In January 2007 the Applicant submitted his application to the GSCC for inclusion on the register of social workers.

13.	In early 2007	 the Applicant applied for a job with West Berkshire Council.  He sought a post “in the adolescent and aftercare team” or the “leaving care team” but was offered a position in “the under 12’s team”.  The Applicant had no experience in child protection work but expressed a willingness to learn.

14.	On 26 February 2007 the Applicant commenced work with West Berkshire Council as a family support worker.  The job to which he was appointed was a “social worker post” but the Applicant could not be employed as a social worker because the Respondent Council had not made a decision about his application for registration.

15.	At the Applicant’s probation review on 17 May 2007, his then line manager, Ms Priya Mitchell described him as “friendly and energetic” and as “a ‘team player’ always prepared to help out” but expressed concerns about his “communication style”, his inappropriate or unprofessional comments and his failure to keep to the time-scales for statutory visits.  As a result, the Applicant’s probationary period was extended for a further three months until November 2007.  His employment as a social worker was then confirmed.

16.	On 4 December 2007 the Applicant’s name was finally placed on the register of social workers by the Respondent Council.

17.	In February 2008 the Applicant’s new line manager, Ms Megan Chester expressed her “mounting concerns” about the Applicant’s capability.

18.	On 5 March 2008 a meeting was held with the Applicant at which concerns about his work practices were identified and listed.  The list compiled at this meeting was subsequently repeated, with some minor modifications, as the basis for the Applicant’s dismissal from his post; as the reason for the making of a complaint to the Respondent Council by West Berkshire Council and as the statement made by the Respondent Council in support of an allegation of misconduct on the part of the Applicant.

19.	The “list of concerns” complied on 5 March 2008 referred to:
“- lack of knowledge or understanding of legislation, procedures relating to child care practice, despite additional training/help
- lack of skills in assessing risk and responding in a timely and safe manner
- not seeking line management decisions appropriately
- not following management directions or responding in a defensive manner when directed/challenged
- poor time management skills – particularly in relation to recording
- lack of ownership of cases”.

20.	 At the meeting on 5 March 2008 it was agreed that the Applicant would be closely supervised and monitored by a senior manager and mentored and assessed for a period of six weeks by an experienced social worker.  The Applicant was warned that, if he did not “make sufficient improvement” and remained “ineffective in his role”, the formal “capability process” would be applied.

21.	The period of assessment of the Applicant began on 9 April 2008.  On 1 May 2008, the supervising social worker, Ms Anne Styles reported that the Applicant had a positive relationship with some of his clients but appeared to have “difficulties prioritizing (sic) issues and concerns”.  There had also been a “lack of analysis”.  Ms Styles also expressed concern about the Applicant’s “understanding of risk” and his ability to raise this issue with his supervisor.  She noted that the Applicant did “not seem to anticipate or be aware of the reactions of some of his clients”; that he had “demonstrated a lack of understanding regarding his role as social worker” and that he had “not always followed Children’s Services procedures”.  Ms Styles concluded that the Applicant appeared to need a level of direction which would be greater than that given to other social workers and that he was “not always confident/assertive with families”.

22.	On 4 June 2008 Ms Styles produced her final report on the Applicant.  She said that he had continued to be enthusiastic but had been “unable to present an overview of the families” with whom he had been working.  He did not “demonstrate the ability to collect and analyse information, make plans and undertake work to address concerns and issues”.  He had difficulties in assessing risk and “presented as being unclear about his role”.

23.	On 5 September 2008 West Berkshire Council convened a disciplinary hearing.  Ms Chester gave evidence that the Applicant “seemed to have no sense of risk” and that she had misgivings about his documentation and report writing skills.  She complained that the Applicant’s style of writing was “very formal and academic” and was “not easily understood, especially by some of our families”.  Ms Chester gave no specific examples of alleged misconduct save that she mentioned that, in one case, the Applicant had failed to challenge an acrimonious father’s actions.  Ms Chester also said that other professionals shared her concerns about the Applicant.

24.	Ms Styles gave evidence at the hearing about the Applicant’s alleged failures in relation to a number of different families and said that he posed a “high level of risk … in terms of casework and supervision”.  She spoke of “a lack of ability to focus on the process”.  She also complained that the Applicant had, under pressure from a family, altered his assessment of their parenting from “sufficient” to “good”.  Ms Styles concluded that the Applicant “managed his case load only with a high level of intensive support”.

25.	During the disciplinary hearing the Applicant agreed that his performance had been “below an acceptable level” because he had “no statutory knowledge of legislation” and because there was “a lack of stability” in the social work teams.

26.	Following the disciplinary hearing the Applicant was dismissed from his employment with two months notice “on the grounds of capability”.  The dismissal was confirmed in a letter from the Council to the Applicant dated 9 October 2008 specifying his last date of employment as 5 November 2008.

27.	On 17 September 2008 the Applicant lodged a notice of appeal against the decision to dismiss him.  He complained that the process to which he had been subjected was “negative” in that there was “fault/deficit finding” which was then “generalised”.  The Applicant addressed each of the “areas of concern” set out in the list drawn up on 5 March 2008.  He said that his “lack of knowledge or understanding of legislation and procedures relating to child care practice” was attributable to the fact that he had only had a three-day introductory training course and “meagre or incidental mentoring”.  The suggestion that he lacked skills in assessing risk and responding in a timely and safe manner was, he said, based upon a single case and taken out of context.  The Applicant denied any failure to seek line management decisions appropriately and any failure to follow management directions.  He also pointed out that even Ms Styles, as his most severe critic, had stopped short of criticising his time management skills.  Finally, he said that the allegation of “lack of ownership of cases” confounded him.  He had had no trouble in accepting responsibility for the work that he did.  The Applicant submitted that the reasons given for his dismissal were “flimsy” and “based mainly on conjecture”.

28.	On 30 October 2008 the Applicant’s appeal against his dismissal was rejected by the Corporate Director of Children and Young People’s Services of West Berkshire Council.

29.	In a letter to the Applicant dated 3 November 2008 the Corporate Director said that “managers and professionals” were clear that the Applicant’s practice “could have very damaging consequences for some of the most vulnerable families”.  She added that she had to ensure that such families were “protected against such a high level of risk”.

30.	On 1 December 2008 the Respondent Council received information from West Berkshire Council in a Complaint Form completed by Ms Karen Reeve, the Head of Children and Youth Services.  Ms Reeve gave, as the “reason for making this complaint”, that the Applicant had been dismissed following a capability hearing and subsequent appeal.  She recited the reasons for dismissal in exactly the same terms as the “list of concerns” drawn up at the meeting on 5 March 2008.  As “supporting evidence” Ms Reeve enclosed the Investigating Officer’s report to the original capability hearing; the minutes of the capability hearing and of the appeal hearing and the letters confirming the outcome of the original and appeal hearings.

31.	In or about July 2009 the Respondent Council prepared a “statement regarding the allegation upon which the application [for an Interim Supervision Order] is based”.  This statement said that:
“While employed by the West Berkshire Council between 1 May 2007 and 5 November 2008 Mr Morkel-Clemens:
1.	demonstrated a lack of knowledge and understanding of legislation and procedures relating to child care practice, despite additional training and help;
2.	demonstrated a lack of skills in assessing risk and responding in a timely and safe manner;
3.	did not seek line management decisions appropriately;
4.	did not follow management directions or responded in a defensive manner when directed/challenged;
5.	had poor time management skills, particularly in relation to recording;
6.	demonstrated a lack of ownership of cases.”

32.	In the “GSCC statement regarding the reasons for suspension” the Respondent referred to the information provided by the West Berkshire Council, which was considered to be “a credible source of evidence” and said that the Applicant faced “serious allegations, the most serious of which relates to a lack of skills in assessing risk and responding in a timely and safe manner”.  The statement then referred to the “detail set out in the documents supplied by West Berkshire Council and, in particular, in the summary of concerns set out on pages four and five of the Performance Capability Report and the evidence of MC and AS given at the Performance Capability Hearing (see pages four and five and pages five to eight of the notes of that hearing, respectively)”.

33.	On 3 August 2009 the Preliminary Proceedings Committee held a hearing in closed session.  The Presenting Officer, Mr Neil Grant drew attention to two bundles, the first consisting of 41 pages including the “current allegation”, a brief chronology and “some reasons given in support of the allegations” and the second consisting of over 500 pages and containing “some duplicate papers”.  Mr Grant also noted that the larger bundle was “not in chronological order”.  Shortly after commencing his submissions to the Committee, Mr Grant asked for “a degree of patience on the part of the Committee” because he had prepared his submissions “based on the wrong papers”.

34.	Mr Grant referred the Committee to the list of “concerns” about the Applicant drawn up at the meeting on 5 March 2008 and the interim report of the supervising social worker and commented that there were “pretty significant issues … in terms of competence”.

35.	Mr Grant next drew attention to the examples presented by Ms Styles of the Applicant’s alleged failures, including a failure to challenge a family when an event took place which was in breach of a written agreement; an intervention with a child which “undermined the mother” and a comment which provoked a young man to think that it was being suggested that he was gay.  Mr Grant then referred the Committee to observations about “poor assessments” by the Applicant.

36.	Mr Grant also referred the Committee to the final report of Ms Styles dated 4 June 2008 and to the examples there set out, upon which he said that he did “not intend to dwell”.  He suggested that the report contained “substantial concerns around his [the Applicant’s] competencies in dealing with Children’s Services work”.

37.	Mr Grant then took the Committee through the processes which resulted in the Applicant being subjected to a disciplinary hearing and referred to the evidence given by Ms Chester and Ms Styles at that hearing and the admissions made by the Applicant.  Mr Grant submitted that the Applicant was “motivated by the right intentions” and was “enthusiastic” but did not have an appropriate “level of competence and capability”.  He further submitted that the Applicant had demonstrated “serious departures from acceptable practice” which gave rise to “serious public protection concerns”.  The alleged failings were, he said, “wide ranging” and “basic” and covered “many months”.

38.	Mr Grant then referred the Committee to nine provisions of the Code of Practice and suggested that the Applicant had been in breach of each of them.

39.	Finally, Mr Grant submitted that, “looking at it in the round”, if the Applicant returned to work, there would be “a real chance that he would repeat such deficient conduct”.

40.	The Committee then invited the Applicant to tell them why the Respondent Council’s application for an Interim Suspension Order should not be granted. The Applicant gave the Committee “some foreground” about the process he had been through with the West Berkshire County Council and pointed out that he had applied for a job “in the adolescent and aftercare team” but was offered a post in “the under 12s team”, about which he had doubts, because he had not worked in that field before.  He said that he had never claimed to be proficient in child protection and had been recruited as a family support worker and given insufficient training.  The Applicant described, at some length, his work with West Berkshire County Council and his relations with his managers.  He suggested that the Council was seeking to save money by getting rid of the social workers who were “least wanted or least capable”.  He insisted that he had made “no false pretences” when he took the job but had been rejected by managers who were biased and unjustifiably unsympathetic to him.  He commented, in passing, on some of the examples of his lack of competence that had been given and suggested that they had been taken out of context or exaggerated.  They were, he said, “largely isolated incidents”.  The Applicant confessed to being “dumfounded” by the suggestion that he lacked understanding of the role of social worker since he had many years of experience, albeit in a different country, with different “philosophical traditions”.

41.	The Applicant also pointed out to the Committee that the charge that he had not always followed Children’s Services procedures was “generalised”.  He said that he did not know what procedures it was alleged that he had failed to follow because they had not been specified.  After the Chairman of the Committee intervened to warn the Applicant that he was repeating himself, the Applicant repeated that he had not been given sufficient training to address his admitted lack of legal knowledge.  He concluded by suggesting that the allegations against him were “false or misconstrued” and that the evidence in support of them was “very thin”.

42.	Following the hearing the Preliminary Proceedings Committee took time for consideration and then announced their decision to impose an Interim Suspension Order for a period of six months.  In giving the Committee’s reasons the Chairman referred to “the allegations concerning … lack of knowledge and understanding of procedures, lack of skills in assessing risk, poor time management and lack of ownership of cases”.  He also referred to “reservations about [the Applicant’s] abilities” and the lack of “evidence of change”.  He made no reference to any specific allegation of misconduct on the part of the Applicant but referred generally to the “gravity of the allegations, their nature and seriousness and the period of time over which they occurred”.  Finally, the Chairman recited the advice received from the Legal Adviser that it was “important for the Committee to consider the seriousness of the allegations and any evidence relating to the likelihood of any further incidents of harm, particularly to service users, occurring in the period before the final disposal of the complaint”.

43.	In their written reasons for the decision the Preliminary Proceedings Committee said that they were “of the view that due to the gravity of the allegations, their nature and seriousness and the period of time over which they occurred it is necessary and proportionate to impose an ISO both to protect the public and also to uphold public confidence in the social care profession”.

The law

44.	Section 59(1)(c) of the Care Standards Act 2000 provides that the Council shall by rules determine the circumstances in which, and the means by which, a person’s registration in the register of social workers may be suspended for a specified period.

45.	The relevant Rules are the General Social Care Council (Conduct) Rules 2008.

46.	Rule 5(1) of the 2008 Rules provides that it shall be the duty of the Preliminary Proceedings Committee of the Council to consider an application by the Council for an Interim Suspension Order and decide whether the making of such an Order is (a) necessary for the protection of members of the public; (b) otherwise in the public interest; or (c) in the interests of the registrant concerned.
47.	Rule 5(4) of the 2008 Rules provides that it shall be the duty of the Conduct Committee to consider any Formal Allegation against a Registrant and decide (a) whether the facts are proven; (b) whether the Registrant has committed Misconduct; and (c) where it is decided that the Registrant has committed Misconduct, what sanction (if any) should be imposed upon the Registrant.
48.	Rule 2 of the 2008 Rules provides that “Misconduct” means conduct which calls into question the suitability of a Registrant to remain on the Register.

49.	Rule 6(1) of the 2008 Rules provides that the Preliminary Proceedings Committee shall follow the procedure set out in Schedule 1 to the Rules.

50.	Paragraph 3(1) of Schedule 1 to the 2008 Rules provides that, where the Council wishes to apply for an Interim Suspension Order, it shall apply to the Clerk to the Preliminary Proceedings Committee providing details of the allegations upon which the application is based and a statement setting out why the registration of the Registrant should be suspended.

51.	Paragraph 4 of Schedule 1 provides that the Notice of Decision shall (a) record an advice given by the Legal Adviser or the Medical Adviser; (b) set out the decision of the Committee; (c) specify the reasons for the Committee’s decision; (d) where an Interim Suspension Order has been imposed, set out the period of suspension, beginning with the date on which the Order is made; and (e) inform the Registrant of the right of appeal to the Care Standards Tribunal.

52.	Section 68 of the Care Standards Act 2000 provides that an appeal against a decision of the Council shall lie to the Tribunal and that, on an appeal, the Tribunal may confirm the decision or direct that it shall not have effect.

Issues

53.	It was argued by the Applicant that:
(a)	his performance may not have been acceptable to his employer but he was not guilty of any misconduct;
(b)	he was assured by the West Berkshire Council, when they invoked their performance capability procedure, that only his ability to do the job as required was under consideration and it was not being suggested that he was guilty of misconduct;
(c)	he has been “misled and unfairly treated” because a case “initially considered as inability” had been “converted into a case of misconduct”;
(d)	the charge of misconduct was “malicious, unwarranted and false”; and
(e)	he did not, and does not, pose a risk of harm to the public.

54.	It was argued on behalf of the Respondent Council that:
(a)	the Applicant is charged with misconduct in that he (i) demonstrated a lack of knowledge and understanding of legislation and procedures; (ii) demonstrated a lack of skills; (iii) failed to seek line management decisions appropriately; (iv) failed to follow management directions or responded in a defensive manner; (v) had poor time management skills and (vi) demonstrated a lack of ownership of cases;
(b)	the Conduct Committee will, in due course, consider the allegations of misconduct and it is not for the Tribunal to usurp their function by making findings of fact now;
(c)	the allegations of misconduct are serious and wide-ranging and include (i) failure to demonstrate competence in the required range of skills; (ii) displaying a lack of ability to manage a significant case load of complex cases; (iii) demonstrating no sense or appreciation of risk; (iv) departing from acceptable practice; and (v) showing a lack of insight into the role of a qualified social worker;
(d)	the Applicant’s misconduct would, if proved, constitute breaches of nine paragraphs of the Code of Practice for Social Workers; 
(e)	the Applicant’s failings were persistent and not “one-off”;
(f)	given the nature of the allegations and the very basic failures of the Applicant, the public would not have confidence in the profession or the regulator if the Applicant were allowed to practise as a social worker pending the outcome of the investigation; and
(g)	the Applicant’s lack of experience and inability to learn gives rise to the chance that, if the Applicant were permitted to return to work, he would repeat his deficient conduct.

Conclusions with reasons

55.	Having carefully considered the papers and the written arguments submitted, the Tribunal reached the conclusion that the procedure adopted by the Respondent Council and by the Preliminary Proceedings Committee of the Council in this case was wholly unfair to the Applicant and that decision of the Preliminary Proceedings Committee was unreasonable and not supported by any compelling evidence that it is necessary for the protection of members of the public or otherwise in the public interest for the Applicant’s registration to be suspended pending a decision by the Conduct Committee in relation to a formal allegation that the Applicant was guilty of misconduct.

56.	The 2008 Rules contain a clear procedure to be followed by the Respondent upon receipt of information about a registrant.

57.	On receipt of such information the Council must first consider whether such information amounts to a complaint (Rule 12(1)).  Information can only be considered to be a complaint if it makes “a specific allegation or allegations of misconduct” against the registrant (Rule 12(2)(b)).  The Council must next decide, in respect of each complaint, whether, in their opinion, there is a real prospect of a finding of misconduct in relation to each allegation which forms the basis of the complaint, taking into consideration any documents and information provided to them by the registrant (Rule 12(8)).

58.	Before making any decision as to the prospect of a finding of misconduct in relation to each allegation, the Council must send a copy of the complaint and a copy of the Rules to the registrant and invite him or her to submit written representations and any additional documents (Rule 12(9)).  If the Council considers that there is a real prospect of a finding of misconduct in relation to any allegation which forms the basis of the complaint, it must refer that allegation to the Conduct Committee (Rule 12(11)).

59.	The Council may at any time make an application to the Preliminary Proceedings Committee for the imposition of an interim suspension order on the grounds that such an order is necessary for the protection of members of the public or is otherwise in the public interest; or is in the interests of the registrant concerned (Rule 12(16)).

60.	For the purposes of (a) establishing whether information received is a complaint; (b) establishing whether there is a real prospect of a finding of misconduct in relation to each allegation which forms the basis of the complaint; (c) preparing a formal allegation for the Conduct Committee or (d) determining whether an application should be made for an interim suspension order, the Council may make such inquiries and seek such advice as it considers necessary (Rule 12(17)).

61.	When the Council decides to make an application to the Preliminary Proceedings Committee for the imposition of an interim suspension order it must provide, to the Clerk to the Committee, details of the allegations upon which the application is based and a statement setting out why the registration of the Registrant should be suspended (Schedule 1 paragraph 3(1)).

62.	The Tribunal was not satisfied that, in this case, the Council properly followed the procedure set out in the Rules.

63.	Much of the material placed before the Respondent Council by West Berkshire Council did not amount to a complaint within the meaning of the Rules.  There was much material designed to establish that the Applicant was a poor performer and worthy of dismissal but little to establish that he was guilty of misconduct.  It does not appear that any attempt was made to isolate “a specific allegation or allegations of misconduct”.  The mass of material was simply amalgamated with the Applicant’s registration file and handed on.

64.	Little or no analysis of the case against the Applicant appears to have been undertaken prior to the hearing before the Preliminary Proceedings Committee.  The material presented by West Berkshire Council was apparently accepted without further investigation or clarification.

65.	The document purporting to provide details of the allegations upon which the application to the Preliminary Proceedings Committee was based was hopelessly defective.  It was merely a slightly modified transcription of the document prepared by West Berkshire Council as a “list of concerns” about the Applicant’s abilities and repeatedly used by that Council when considering the Applicant’s performance.  This was never intended to be a detailed list of allegations of misconduct. In its modified form the document was a list of very general allegations of misconduct.  Nothing in it could properly be regarded as “specific”.

66.	The document purporting to be a “statement setting out why the registration of the registrant should be suspended” was similarly deficient.  It contained no details and relied upon potentially confusing cross-references to other documents.  The seriousness of the allegations was referred to but, since those allegations had not been specifically identified, that reference lacked meaning. The “most serious” allegation was said to relate “to lack of skills in assessing risk and responding in a timely manner”.  However, the documents incorporated by reference contained no specific allegation of failure by the Applicant to assess a risk and/or to respond to it.  Recipients of the document would have had to guess to which of the various matters referred to in the papers this allegation related.  No evidence relating to the likelihood of any further incidents of harm to service users or others, occurring in the period before the final disposal of the complaint, was specifically identified in the document.  There was a submission to the effect that “the allegation in question, if proved, would demonstrate misconduct of a serious nature such that public protection would be compromised”.  Since “the allegation in question” was not identified, this submission was meaningless.  It was further submitted that “the registrant’s actions have led to a breakdown of trust”.  This was neither evidence nor a legitimate submission since the relevant actions of the Applicant and the identity of those who might have lost trust in him remained unspecified.  It amounted to little more than a vague assertion that the Applicant had been properly and fairly dismissed by his employer.

67.	Later in the document purporting to be a statement setting out why the registration of the registrant should be suspended it was noted that the Applicant might be currently living in Switzerland.  No attempt was made to confront the proposition that no conceivable need for the protection of members of the public could arise if the Applicant, who has attained normal retirement age, was out of the jurisdiction and was not working or attempting to work as a social worker.  It was simply submitted that there was “a real likelihood of repetition” (of unspecified bad and/or dangerous behaviour) because the Applicant would be “free to return to practise in this country” if not suspended.  It was also said that the West Berkshire Council would no longer be able “to act as a safeguard” since they had dismissed the Applicant.  The absurdity of the latter proposition was apparently not recognised by the author of the document.  The Applicant only had dealings, as a social worker, with members of the public in England between February 2007 and November 2008 because West Berkshire Council appointed him, probably improperly and illegally, to a social work post and confirmed that appointment, notwithstanding that the Applicant was not, as they knew, registered as a social worker at the material time.

68.	No Formal Allegation as to the conduct of the Applicant appears to have been formulated for reference to the Conduct Committee under Rule 12(11) notwithstanding that the relevant information was received from West Berkshire Council as long ago as 1 December 2008.  While it is not necessary, under the Rules, for the Council to formulate such a formal allegation before making an application to the Preliminary Proceedings Committee for the imposition of an Interim Suspension Order, it makes little sense for such an application to be made in the absence of a formal allegation or, at least, a proposed or draft formal allegation.  The Rules clearly envisage that an interim supervision order will be imposed only for a limited period until a determination by the Conduct Committee.  The Tribunal saw nothing in the papers to allay their suspicion that an adjudication by the Conduct Committee upon a formal allegation against the Applicant might be many months away.

69.	The Respondent Council placed before the Preliminary Proceedings Committee a voluminous, unedited bundle of documents, many of which were duplicates and others of which had no relevance to the matter in hand.  This placed a burden upon the Committee which they might reasonably have regarded as intolerable.  More importantly, it placed the Applicant in an intolerable position.  He had no reasonable prospect of being able to determine, in advance, the documents to which attention would be given and those which would be set aside as irrelevant.  He was thus unfairly hampered in the preparation of his case.  The relevant documents should have been extracted from the material supplied by West Berkshire and properly presented both to the Committee and to the Applicant in a coherent form.

70.	In any proceedings, preliminary or otherwise, involving allegations of misconduct, it is essential that the specific allegations are set down in writing with due particularity before any adjudication is attempted.  This should be done both to enable the accused person to understand the charges that he or she faces and to focus the attention of the adjudicators on to the relevant matters.  The need for specificity is just as acute in preliminary proceedings as it is when final determinations are made.  The complete failure of the officers of the Respondent Council to formulate specific allegations of misconduct against the Applicant in this case and their casual presentation of wide-ranging allegations of general misfeasance led to a hearing which was both unfocussed and unfair.  The Applicant was not given a proper opportunity to comment upon the misconduct alleged or to make relevant submissions as to the gravity or otherwise of the allegations because the allegations were not specified, properly or at all.

71.	Some instances of alleged misconduct were highlighted by the Presenting Officer during his oral submissions to the Committee but this was not good enough.  All of the allegations relied upon should have been properly particularised for the benefit of the Applicant and the Committee before the hearing.

72.	Any accused person faced with general allegations can only respond with general denials, which will inevitably appear unconvincing.  This is obviously unfair.

73.	The absence of a clear statement of the specific allegations relied upon or to be relied upon was particularly unfortunate in this case because the Applicant was, and is, aggrieved by the apparent shift of the case against him from one involving lack of capability to one involving allegations of misconduct.

74.	Lack of capability and misconduct are clearly distinct matters.  The former may well lead to the latter but they are quite different.  The Respondent’s officers gave some, limited recognition to the distinction between incompetence and misconduct when they amended the “list of concerns” so that it contained allegations that the Applicant had (i) “demonstrated” a lack of knowledge and understanding; (ii) “demonstrated” a lack of skills in assessing risk and (iii) “demonstrated” a lack of ownership of his cases.  They thus impliedly acknowledged that an allegation that a person lacks relevant knowledge or lacks relevant skills is not an allegation of misconduct.  Unfortunately, the attempt to translate the list of concerns into a list of allegations of misconduct was not followed by any attempt to specify how, when or where the Applicant had allegedly demonstrated his ignorance or incompetence.  Furthermore, there was a complete failure to specify when and in what circumstances it was alleged that the Applicant failed to seek line management decisions appropriately and a similar failure to specify when and in what circumstances it was alleged that the Applicant failed to follow management directions.  The transcribed allegations relating to poor time management skills and failure to demonstrate “ownership of cases” were almost completely meaningless in their generality and use of jargon.

75.	During his oral presentation to the Committee, the Presenting Officer several times referred to the Applicant’s competence and capability but did not “dwell upon” the specific allegations of poor performance for fear of being thought tedious.  Mr Grant appears to have emphasised the wrong matters.  Extensive references to the opinions of managers and mentors as to the Applicant’s ability or lack of it were inappropriate.  Those opinions were significantly less relevant than the specific examples of poor performance and bad practice buried in the voluminous documents placed before the Committee.

76.	The potentially useful references, by the Presenting Officer, to the alleged breaches of the Code of Practice during the hearing highlighted the complete lack of specificity which ran throughout this case.  Mr Grant recited nine provisions of the Code which he suggested that the Applicant had breached.  However, he did not specify when and in what circumstances those breaches were alleged to have occurred.  For example, Mr Grant read out paragraph 6.1 of the Code of Practice, which requires social workers to “meet relevant standards of practice and working in a lawful, safe and effective way”.  He then commented that “genuine concerns” had been “raised about [the Applicant’s] ability to meet relevant standards”.  Mr Grant thus completely missed the opportunity to specify each occasion upon which it was, or was going to be, alleged that the Applicant failed to work in a “lawful, safe and effective way”.  Similarly, Mr Grant read out the provision of the Code of Practice (paragraph 6.2) relating to the maintenance of clear and accurate records.  He then commented that “there have been concerns raised about the quality of core assessments … and about reports generally” but failed to identify any specific core assessment or any other report prepared by the Applicant which was alleged to lack clarity or to be inaccurate.  In any event, it was too late for this task to be undertaken during the hearing.  The identification of specific faults should have been undertaken before the hearing and properly communicated in writing to the Committee and to the Applicant.

77.	The Tribunal was able to discern, in the papers placed before the Committee, records or accounts of several instances of behaviour by the Applicant which might have been specified as allegations of misconduct but were not.  First, it was reported by Ms Styles that, on 14 May 2008, the Applicant failed immediately to report to his manager a disclosure of sexual abuse made to him by a child.  Further, Ms Styles said that, when dealing with family “B”, the Applicant failed to formulate a plan or to make a decision as to which member of the extended family should be the main carer for a child who had been assaulted by his mother.  Next, it was alleged by Ms Styles that the Applicant, when working with another family, on a specific occasion, “undermined the mother and told a child to turn off the TV”.  Ms Styles further alleged that the Applicant made a comment which provoked a teenage boy to think that it was being suggested that he was homosexual.  Another allegation made by Ms Styles which might have been specified as an allegation of misconduct related to the “S” family.  Ms Styles alleged that the Applicant commented, wholly inappropriately, to the grandmother that she would be “saddled with” her grandchildren.  Ms Styles also complained about “too much use of long complicated words and language” but it is not clear whether she was suggesting that this might constitute misconduct.  However, none of these allegations of misconduct would, if they had been specified, have led to the conclusion that they were of such gravity that it was necessary for the protection of members of the public or otherwise in the public interest for the Applicant to be suspended from the register pending an investigation of them.

78.	The Committee’s reasons, given orally by the Chairman, reflected the unsatisfactory nature of the papers placed before the Committee and the unsatisfactory nature of the hearing, including the inability of the Applicant to address the relevant issues. The references to “the allegations concerning lack of knowledge and understanding of procedures, lack of skills in assessing risk, poor time management and lack of ownership of cases” and the further references to the lack of “evidence of change” suggest that the Committee followed the Presenting Officer’s invitation to pay attention to the opinions expressed by the Applicant’s managers as to the Applicant’s general incompetence.  They also suggest that the Committee did not identify or isolate the specific allegations of misconduct that they might have found in the papers.  Having failed to identify and/or isolate the allegations, the Committee could not determine the gravity or otherwise of each of them.  The Chairman made no reference to any specific allegation of misconduct on the part of the Applicant.  His reference to the “gravity of the allegations, their nature and seriousness and the period of time over which they occurred” had little or no meaning in the absence of any findings as to precisely what those allegations were.

79.	The Legal Adviser correctly advised that it was “important for the Committee to consider the seriousness of the allegations and any evidence relating to the likelihood of any further incidents of harm, particularly to service users, occurring in the period before the final disposal of the complaint”.  It was not apparent from the reasons given by the Chairman what, if any, evidence the Committee considered relating to the likelihood of further incidents of harm occurring in the next six months if the Applicant were not suspended.  Little that could properly regarded as evidence of this kind was placed before the Committee.  They were merely presented with ill-founded conjecture as to what the Applicant might do.

80.	The Committee’s written reasons for their decision were deficient in that they were merely a recitation of the test to be applied and of the matters to which the Committee is required to have regard.  The decision lacked specificity and did not enable the Applicant or the Tribunal to discern any valid reasons for the Applicant’s suspension.

81.	The decision should have contained a concise account of the findings of the Committee as to the specific allegations of misconduct made, or to be made, against the Applicant; a concise account of the findings made by the Committee as to the seriousness or otherwise of each of those allegations and a meaningful summary of the factors considered by the Committee when arriving at the conclusion that it was necessary for the protection of members of the public or otherwise in the public interest for the Applicant to be suspended pending investigation of those allegations.

Order

The Respondent’s decision dated 3 August 2009 to make an Interim Suspension Order in respect of Mr Evan Philip Morkel-Clemens for a period of six months shall not have effect.

Signed

John Reddish Tribunal Judge
Jennifer Cross
Susan Howell			4 January 2010