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

Sonia West

V

General Social Care Council

[2009]  1614.SW-SUS

 

Before

 

Miss Maureen Roberts, Tribunal Judge

Mrs Sally Derrick, Specialist Member

Mr Paul Thompson, Specialist Member

 

DECISION

Heard on 19 November 2009 at the Care Standards Tribunal Pocock Street London

 

Representation:  The Applicant was represented by Ms N Miszczanyn of UNISON.

 

The Respondent was represented by Ms R Sharma Solicitor of the General Social Care Council

 

APPEAL

 

     1. The Applicant appeals against a decision made by the Preliminary Proceedings Committee of the Respondent on 17 August 2009 to impose an Interim Suspension Order (ISO) for six months on the Appellant.

 

THE LAW

 

          2. The Respondent's power to impose an ISO is provided by Rule 5, (Function of committees) of the General Social Care Council (Conduct) Rules 2008.

         

          3.  These provide that before any order is made, the committee must be satisfied 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 herself.

         

          4. The committee should bear in mind the effects of any sanction on the registrant and whether it would be proportionate. The need for the protection of the public, particularly service users, and the maintenance of the public's confidence in social care provision must be balanced against the consequences of an ISO for the registrant.

         

          5. The committee should 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. An ISO is an interim measure and lasts in the first instance for six months.

         

          6. The appeal against the ISO is brought to the tribunal under section 68 of the Care Standards Act 2000. The powers of the tribunal at an appeal against an ISO are the same as the Preliminary Proceedings Committee in that it considers the gravity of the allegations and the nature of the evidence, the risk of harm to members of the public, the wider public interest and the prejudice to the Applicant if the order was continued. It can consider any additional information received by either party after the Preliminary Proceedings Committee. It does not make any findings of fact.

 

THE BACKGROUND

 

            7. The Applicant has been qualified as a social worker since 1995, i.e. for 14 years. She worked for the first six years after qualifying for the London Borough of Merton until 2001 and then worked for the London Borough of Richmond for two years. Since 2003 she has worked for the London Borough of Bromley, as a Team Manager. During that time, until May 2006, there were no concerns about her work.

 

          8. Through out her working life as a social worker she has specialised in the field of mental health. In her most recent employment which started in 2003 she was employed by the London Borough of Bromley and seconded to the Oxleas Mental Health NHS Trust. She was the senior social worker and team manager in the Duty and Assessment Team in Penge. As noted above in the first three years of this employment there were no concerns about her work.

 

          9. In 2007 there was a reorganisation of work which led to a considerable increase in the referrals to the Applicant's team. There were staff shortages at the time and these were covered by locum social workers. On 12 December 2007 and 29 January 2008 the Applicant attended return to work interviews with her then manager. On both occasions there was a note that the Applicant was subject to increasing work pressure and stress. A note from the 28 January 2008 interview states that, “Dorothy (the manager) to refer the Applicant to occupational health particularly in view of increasing work pressure and stress”.

 

          10. In February 2008 a new locality manager was appointed to manage the Applicant's team. He raised concerns with the Applicant about her failure to close cases. In April 2008 a case review was undertaken that highlighted concerns about the Applicant’s practice and failure to close cases. A case review was conducted and concluded that there were concerns about the management and monitoring of the case work in the duty system.

 

          11.  In July 2008 there were complaints from two doctors; it is not clear in what capacity either of these doctors was working within the Trust or what exactly their complaints were. The investigation into the conduct regarding the complaints, concluded that the Applicant had failed to assign the case to a suitably experienced social worker and had failed to appreciate or understand how the Mental Health Act could have been used to support the service user.

 

          12. On 27 July 2008 the Applicant went on sick leave. Occupational health later concluded that she was suffering from mild stress and anxiety triggered by stress at work. She was fit to return to work by February 2009 however her employer decided she should take garden leave for the time being. This continued until the disciplinary hearing in July 2009.

 

          13. On 7 July 2009 there was a disciplinary hearing by the London Borough of Bromley which concluded that the four allegations made against the Applicant had been proved namely,

                    “1. Your standard of work as a senior social worker in the duty and assessment team in Penge is (in consequence) seriously below that required by your manager and the standards of the GSCC.

                    2. You failed to record whether a number of cases you had managerial responsibility for were concluded and closed.

                    3. You failed to follow instructions from your line manager to complete initial and core assessments, despite being given reasonable timescales;

                        4. You failed to use the systems and processes in place to record    casework and in doing so failed to safeguard vulnerable adults that were in your         responsibility.”

 

            14. The Applicant attended that hearing unrepresented. The letter notifying her of the outcome, dated 8 July 2009, recorded the evidence to the disciplinary hearing and its findings. It went on to conclude that whilst their findings would normally warrant a penalty of dismissal the officer had taken into consideration the mitigation put forward by the Applicant, the recommendation from management and the request from the Applicant for a demotion away from her current role as team manager and that this course of action would be acceptable.  The investigating officer stated “I also noted that management did not raise any issues about your practice as a social worker”.

 

            15. The Applicant was offered an alternative position as a social worker at a level below senior practitioner. She was requested to accept or decline this offer within 10 days. She did not do so and was therefore dismissed. She is appealing this decision by her employer and the next stage of that appeal is due to be heard on Wednesday, 25 November 2009 by a panel of councillors from the Borough. The Applicant has also lodged a protective appeal with the Employment Tribunal.

 

SUBMISSIONS TO THE TRIBUNAL

 

            16. The Respondent went through the allegations to the tribunal. The evidence to the Preliminary Proceedings Committee on behalf of the GSCC was copies of the letter of the 8 July 2009 (six pages) and a follow up letter dated 29 July 2009 (three pages) confirming the dismissal from the employer to the Applicant.

 

            17.  In its submission the allegations had been admitted by the Applicant at a disciplinary hearing. The Respondent’s Preliminary Proceedings Committee had relied on the admissions made by the Applicant at that hearing. The Respondent submitted that the letter from the officer who conducted that disciplinary hearing was enough to raise the presumption that the allegations were made out; the tribunal had a copy of the letters dated 8 and 29 July 2009. The Respondent accepted that no determinations as to fact had been made.

 

            18. The Applicant gave six reasons in her appeal form. Namely

 

                        “(a) the decision to suspend me was disproportionate.

                        (b) the GSCC did not demonstrate grounds for making a suspension             order.

                        (c ) I was denied a fair hearing.

                        (d) the interim order hearing did not follow the rules.

                        (e) the committee's justification of their decision was unreasonable.

                        (f) the committee did not follow the legal assessor's advice.”

 

            19. The GSCC rules for the suspension order hearings provide that, inter alia,

 

                        (a) the Presenter shall outline the facts of the case and set out the   reasons why the Registrant’s registration should be made subject to an         interim suspension order together with any evidence in support;

                        (b) the Registrant (if present) shall set out the reasons why such      application should not be granted by the committee, together with any    evidence in support.

 

            20. Miss Miszchzanyn was the advocate for the Applicant at the Respondent’s hearing and represented the Applicant before the tribunal. She explained that because of the short period of time between the notification of the hearing and the hearing taking place she attended on the day with her submission and supporting documents to hand in to the committee. These amounted to 32 pages. She handed in the copies when she arrived. She was told before the hearing that the committee would not accept the submission of these documents. She said that in all her experience of appearing at Interim Suspension hearings this was the first time that her submissions and documents had not been accepted by the committee.

 

            21. The parties had assembled at one o'clock. When Miss Miszchzanyn was told that her submissions would not be accepted she then endeavoured to try re-order and re-write what she was going to say to the committee. She said that at approximately two o'clock the clerk to the committee indicated the council’s impatience. Miss Miszchzanyn said she had a sense of being very rushed out of the waiting room and into the hearing. She felt that the panel made it quite clear that the conduct hearing should proceed without any further delay. The Applicant had previously requested an adjournment which had been refused so she did not consider that it was worthwhile to make a further application for an adjournment.

 

            22. At the beginning of the hearing the committee stated through its chairman that “ the committee has considered this late submission (ie the documents from the Applicant) and does not feel that it would actually assist us in our function today, which is to decide whether or not an ISO is necessary for the protection of the members of the public or otherwise in the public interest or indeed in the registrant's interest. …. I would remind you that this is not a conduct hearing. We are not looking to make any findings of fact. We are merely here to balance the risk of the allegations and the nature of the allegations against protection of the public other public interest and the registrant is interest. We need to restrict our arguments to that endeavour.”

 

             23. The Applicant considered that the Respondent’s committee were  pre- judging the Applicant in that they only looked at the employer's opinion based on the evidence of two letters. In her view the committee did not have any independent factual evidence from the employer to corroborate its findings. She had brought evidence surrounding the issues and was not allowed to submit it. She drew our attention to the fact that she had referred to the submissions and additional evidence on three occasions to the Committee. On this ground it was Miss Miszchzanyn’s submission that the Applicant had not had a fair hearing.

 

            24. The burden of proof in such a hearing is on the Respondent to show why the Applicant should be subject to an interim suspension order. The Applicant submitted that some of the questions by the Respondents committee implied that they were asking her for her reasons why she should not be suspended and therefore placing the burden of proof on her.

 

DECISION OF THE TRIBUNAL

 

            25. Having heard the preliminary submissions by the parties the tribunal decided that there were procedural grounds for allowing the appeal. We concluded that the Preliminary Proceedings Committee had erred in not allowing the Applicant's representative to submit her submissions and supporting documentation to the hearing. The documents, as will be noted below, addressed the environmental factors and the issues of public protection and public interest.  It also appeared that the committee may have misapplied the burden of proof. On these grounds the hearing was not a fair hearing. We therefore decided to allow the appeal.

 

            26. We appreciate that the matter could be left at this point however the tribunal consider that it is only fair to the Applicant to consider all the evidence before it including the submissions and documents prepared by her representative for the Preliminary Proceedings Committee together with the evidence to the tribunal and to come to a decision concerning substantive grounds for the Interim Suspension Order.

 

EVIDENCE OF THE APPLICANT

 

            27. The Applicant confirmed her work experience. She said the issues raised were purely managerial issues and that she had gone to her managers on issues which she felt that she could not resolve on her own; for example with respect to staffing. She explained the restructuring and changes that had taken place in 2006 and 2007. Two social workers left and all the referrals were coming to her team. She had no extra staff, despite the workload referrals increasing. In effect she was coping with an increased workload with reduced staff. Locum staff were appointed but they in turn needed a certain amount of training and did not always stay for any length of time.

 

            28. The Applicant acknowledged that the head of social care and her line manager had tried to help but that the stress of the situation was building up and that she became unwell because of stress in 2008. She said she was referred to occupational health the day she went off sick in July 2008, but the referral took 6 months to take place. She said that she was trying to oversee everything and that while she tried to delegate she was under considerable stress and aware that other staff had a heavy load work on them. When her manager left in February 2008 she did not feel that she was ‘heard’ after that date.

 

            29. By February 2009 the Applicant felt ready to come back to work but by then there was an investigation into her conduct as a manager and she was placed on garden leave until the disciplinary hearing in July 2009. She attended that hearing with out representation and did not consider that she had admitted any of the allegations.

 

            30. The Applicant explained to the tribunal the impact of the interim suspension decision on her in that she has been affected emotionally; feeling quite useless and as if she has been placed into the same category as a violent criminal. Financially she has suffered and said that she was “facing financial ruin”.

 

 

 

 

THE INTERIM SUSPENSION ORDER

 

            31. As noted above we are allowing the appeal on the grounds that the hearing by the Preliminary Proceedings Committee was not fair. However having read the papers and submissions and listened to the oral submissions by both sides and evidence from the Applicant we are recording our decision concerning the substantive grounds for the Interim Suspension Order.

 

            32. The Applicant has worked as a social worker for 14 years; she has a blameless employment record and no previous disciplinary proceedings. We have seen the reference from a consultant psychiatrist from the time that she worked with the London Borough of Richmond which stated that she did not “ have any concerns regarding her professional abilities as a social worker”,  and that she got on well with other colleagues in the team and that there were no complaints about her.

           

            33. During the first three years of her present employment there were no backlog of cases and the team functioned well. In addition the Applicant completed a BME leadership program and was the Equality and Diversity trainer for the Trust.

 

            34. The submissions prepared by her representative for the Preliminary Proceedings Committee hearing outlined the following matters succinctly.

            Namely, that there were management and institutional failures which need to be taken into account in relation to the management difficulties and work stress experienced by the Applicant; that her team had a greatly increased workload with fewer staff; and that the Applicant found senior management were less supportive to her.

 

            35. The Applicant further submitted that she was suffering from ill health due to her work situation from the end of 2007. This appeared to have been acknowledged by the management.

 

            36. Finally the Applicant denies that she has admitted the allegations and that they remain contested. The Applicant told the tribunal that she had been unrepresented at the disciplinary hearing and that she had never seen any minutes for that meeting.

 

            37. The fact that the employing authority offered the Applicant a job as a social worker indicates that they did not regard her as a risk to the public and felt that it was in order for her to continue in practice as a social worker. In fact the letter confirmed that they had “no concerns about her practice as a social worker.”

 

            38. We make no findings as to the facts of the allegations; that task will be for a future hearing. However on the written and oral evidence that we have read and heard we do not find that an Interim Suspension Order is necessary for the protection of the public, or is otherwise in the public interest or in the interests of the Registrant.

 

            The appeal is allowed.

 

 

            Miss Maureen Roberts

            Mrs Sally Derrick

            Mr Paul Thompson

 

            24 November 2009