Mason v Secretary Of State For Education And Skills [2004] EWCST 0335(PC) (14 December 2004)

SHELLEY KAREN MASON
 -v –
SECRETARY OF STATE FOR EDUCATION AND SKILLS

[2004] 0335 PC  

Before
Rosemary, Lady Hughes (Chairman)
Ms Caroline Joffe
Mr Brian Cairns

Hearing at 18 Pocock Street London on 29 November 2004

Shelley Karen Mason (the Appellant) appeals under Section 4 (1) (a) of the Protection of Children Act 1999 (the Act) against the decision of the Secretary of State for Education and Skills (the Respondent) to include her in the list kept under section 1 of the Act.

Preliminary

On 21 September 2004, the President of the Tribunal made a restricted reporting order under Regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations. He also made a direction under Regulation 19(1) excluding members of the press and members of the public from all of the hearing so as to safeguard the welfare of any child.

The Appellant was not present at the hearing; she was not represented and had no witnesses. Graham Walker of the Tribunal Secretariat gave evidence to the effect that he had spoken to her on the telephone on 26 November 2004 and had understood that she would be attending. Mr J. Auburn of Counsel, representing the Respondent and instructed by Ms C. Ricketts of the Treasury Solicitor’s Office, argued that the appeal should be dismissed without a hearing in the absence of the Appellant. We were unable to contact the Appellant by telephone and having waited until 11. 00 a.m., we decided to continue with the hearing.

Facts

1.	The Appellant was employed as a residential social worker by Cornerways Children’s Services and worked at their Lynwood Unit that houses five young women between the ages of 12 and 16. She started work on 3 September 2001 and was dismissed on 30 July 2003 following a disciplinary hearing on 23 July 2003. An internal appeal was held on 9 October 2003 at which the Appellant’s appeal was dismissed. She then appealed to the Employment Tribunal and the case was settled out of court in February 2004 with a payment of £2,000 being made to her by Cornerways Children’s Services.

2.	The Appellant’s name was provisionally included in the Protection of Children Act List on 4 September 2003 and this was confirmed on 4 May 2004. The Appellant lodged her appeal with the Care Standards Tribunal on 28 June 2004, claiming that the allegations of misconduct were unproved and malicious.

3.	Ms Amy Kelly gave evidence on behalf of the Respondent. At the time of these incidents, she was a Senior Residential Worker at Lynwood and sometimes worked with the Appellant. When Ms Kelly was interviewed by the Unit Manager, Ms Liz Seales on 1 July 2003, she was asked if there were any practice issues she had noticed regarding the Appellant. She reported three minor issues where she had cause to reprimand the Appellant; these concerned smoking in the Unit staff car, lending a cigarette lighter to one of the residents and not reporting in to the Unit when taking one of the residents off site.

4.	Ms Kelly also reported allegations of a major issue. On Saturday 28 June 2003, she said that she had called at Lynwood and then went on to lunch at the home of Ms Pauline Cosgrove, a Residential Social Worker who had worked at Lynwood for about six months. Ms Barbara Welsh, another Residential Social Worker who had also worked at Lynwood for six months, was also there and after lunch they all drove to Ms Welsh’s house. Ms Kelly drove her car with Ms Cosgrove as a passenger. During the 40-minute drive, Ms Cosgrove, who had drunk two glasses of wine at lunch, disclosed a number of incidents relating to petty cash at the Unit that involved the Appellant. Ms Kelly said that Ms Cosgrove was emotional and tearful though not incoherent; she was upset because she herself was implicated in the incidents and she felt that she had let Ms Viv Spence, the owner of Cornerways and Ms Seales down. Ms Cosgrove also mentioned that the Appellant had brought ‘speed’ into work and they had both taken it.

5.	Ms Kelly told us that she did not want to discuss these matters in front of Ms Welsh but when they were alone in Ms Welsh’s house, Ms Welsh made additional allegations about misuse of Unit cash by the Appellant. She also said that the Appellant had obtained some cannabis for Ms Welsh’s husband by a mobile telephone call made in the Unit although the drug was delivered off site. Ms Kelly was becoming increasingly concerned at these allegations and reported them to Ms Spence later that day. She told us that she had not had much social contact with Ms Cosgrove or Ms Welsh before this incident but tried to encourage the staff as a team.

6.	Ms Kelly said that Ms Cosgrove contacted her on 29 June 2003 and told her of another incident when they had taken ‘speed’ and that the Appellant had also smoked cannabis in the office.

7.	Ms Seales gave evidence on behalf of the Respondent. Ms Cosgrove had given Ms Seales a statement on 30 June 2003 in which she said that whilst on duty with the Appellant, she had twice joined her in taking speed that the Appellant had brought into the Unit. The Appellant had also gone out to the shops to buy two cans of beer that they both drank. This had happened late at night when the residents were asleep. The Appellant had also twice smoked a ‘joint’ in the office and on another occasion when they had been on shift together, they had gone to Ms Cosgrove’s home where the Appellant had consumed a brandy and coke and smoked a ‘joint’ before returning to work. M Seales said she was not able to go through the statement with Ms Cosgrove as she was very upset, and advised her to go home.

8.	Ms Welsh had supervision with Ms Seales on 30 June 2003, was interviewed on 1 July 2003 when Ms Seales took a statement, and again on 8 July to clarify points. She reported instances of the Appellant’s poor time keeping and inappropriate behaviour towards the mother of one of the residents. Ms Welsh said that the Appellant had obtained some cannabis for her on 14 June 2003. In her written statement, Ms Welsh said that the Appellant ‘constantly spoke about drugs’. Ms Welsh was concerned about the Appellant’s dealings with petty cash and shopping for the Unit. She also referred to one of the residents, SM, whose link worker was the Appellant. SM was not allowed contact with a relative, Sharon, and Ms Welsh said she had witnessed the Appellant condoning a telephone conversation between the two without making it clear that SM should not be speaking to Sharon.

9.	Following the receipt of these various allegations from Ms Cosgrove and Ms Welsh, the Appellant was suspended from duty and Ms Seales undertook to investigate the situation. In her evidence to us, Ms Seales said that she had only returned from two weeks leave on 30 June 2003 but she then proceeded to interview all the members of staff with the Personnel Officer. The records of very brief interviews were included in the witness statements. Heather Clay, Senior Residential Social Worker, Ursula Dempsey, Residential Social Worker, Alan Delaford, Relief Senior Residential Social Worker and Maxine Knight, Deputy Unit Manager, were all asked one question: did they have any issues, practice or otherwise about the Appellant. Ms Clay made no comment. Ms Dempsey said that sometimes the Appellant’s language seemed inappropriate when talking to the residents but she also acknowledged that they might find it easier to relate to someone like that. Mr Delaford concurred in occasionally finding the Appellant’s remarks inappropriate but he stated that she was hard working and he had a good working relationship with her. Ms Knight commented on minor issues about petty cash and not telephoning in when off site with one of the residents.

10.	Ms Seales also interviewed Ms Kelly and attempted to attach dates and times to the allegations made by Ms Cosgrove and Ms Welsh in their statements. Ms Seales told us that the Appellant was a hard worker and she had not thought her unsuitable to work with children. The Appellant was technically the senior when working with Ms Cosgrove or Ms Welsh. Ms Seales had been surprised to receive the complaints but commented that she had been aware of uncomfortable relationships within the Lynwood team just prior to her holiday. Ms Seales confirmed that nothing had been said about the Appellant’s behaviour before these allegations at the end of June. Ms Seales also confirmed that in her view the Appellant was ‘doing very well’. Early in her employment there had been some minor inappropriate actions by the Appellant that had been noted and confronted immediately so that she knew the expectations concerning the boundaries that were so important to the residents.

11.	Ms Seales told us that she knew Ms Cosgrove had had her own problems with alcohol abuse in the past. When she had visited her with Ms Spence on 29 June, they found her in a very emotional state and suggested that she should see her doctor; previously she had seemed emotionally stable. Ms Seales confirmed that Ms Cosgrove had been dismissed from her post following her admissions of dug and alcohol abuse while on duty. With regard to the investigation of the Appellant’s behaviour, Ms Seales said that although she had been Unit Manager for four years, she had never previously conducted an investigation. No one had interviewed the Appellant prior to the disciplinary hearing and there had been no further investigation following her responses to the allegations. Ms Seales had looked at the Occurrence Book to try to identify dates of the alleged offences but the book was not always wholly accurate or complete. Similarly, the staff rotas list had not been helpful .

12.	Ms Seales told us that she saw no reason for Ms Cosgrove to have made up her allegations about the Appellant using drugs and alcohol while on duty at the Unit. She also saw no reason for Ms Welsh to make up her allegations. Ms Seales knew that Ms Welsh had received threats following her ‘whistle blowing’ in her previous employment and she also knew of Ms Cosgrove’s alcohol problems. The current disclosures had not reflected well on either of them personally to the extent that Ms Cosgrove lost her job at Cornerways.

13.	Ms Seales did not know whether or not the allegations were true but she was certainly concerned and not prepared to take risks in her employees’ behaviour. Mr S. Goodburn, the Operations Manager, had been responsible for taking the decision to dismiss the Appellant for gross misconduct following the disciplinary hearing and placing her name on the PoCA list followed from that. Ms Seales said that she did not know if any child had been harmed or put at risk of harm as a result of that gross misconduct. When Mr Goodburn wrote to the Department for Education and Skills on 5 April 2004, he confirmed that there were no witnesses other than Ms Cosgrove to the alleged drug and alcohol abuse. Ms Seales told us that the inappropriate behaviour complained of by Ms Welsh would not have been sufficient to warrant instant dismissal. It was entirely due to the gross misconduct.

14.	The only evidence from the Appellant was in her written appeal form where she wrote that the claims were unsubstantiated, malicious and with no basis of truth. The Employment Tribunal hearing had not taken place so that she had been unable to confront her accusers. She had consistently refuted what she claimed to be malicious allegations from spiteful colleagues. 

15.	During the disciplinary hearing, the Appellant said that she had been about to tell Ms Seales about Ms Cosgrove’s alcohol problem and had told Ms Cosgrove she would do so; reference was made to Ms Cosgrove being drunk in the road and on another occasion the police were called when she was drunk and lying asleep on a roundabout. The Appellant denied the allegations about misuse of petty cash and also confirmed that she had told SM she should not be speaking to Sharon. She did not know that Ms Welsh was listening to that conversation. The Appellant denied purchasing cannabis for Ms Welsh and said she had never been to her house. She knew that Ms Welsh was cross with her because, as the more senior worker, she had drawn up a schedule for cleaning that Ms Welsh did not like. The Appellant agreed that she had been to Ms Cosgrove’s house for a cup of tea and a couple of cigarettes when she was on a shift with Ms Dempsey, but she totally refuted all the allegations of misconduct, gross or otherwise.

Conclusions with reasons

A.	We were conscious that in this case the burden of proof was on the Respondent to prove on a balance of probabilities that the Appellant had been guilty of misconduct, (whether or not in the course of her duties), that had harmed a child or put a child at risk of harm. In addition, it was also necessary for the Respondent to prove to the same standard that the Appellant was unsuitable to work with children. (Section 4 of the Protection of Children Act 1999). We explained at the beginning of the hearing that we would be concentrating on the alleged ‘gross misconduct’ involving drugs and alcohol rather than the misconduct involving time keeping and petty cash which would have been dealt with by Cornerways by way of internal disciplinary action.

B.	We did not draw any adverse inference from the non-appearance of the Appellant and Mr Auburn did not invite us so to do. Under the Tribunal Regulations, it is permissible to have a hearing without either party being present. There had been no suggestion that the Appellant wanted to withdraw the appeal or was unwilling to be questioned and indeed she seemed anxious to face the Respondents’ witnesses and clear her name. We were aware of the decision by the Court of Appeal in Secretary of State for Health v C (Court of Appeal [2003] EWCA Civ10), where the Tribunal was criticized for not drawing an inference, particularly an adverse inference, where an Appellant had failed to attend a Tribunal hearing. In that case, however, the allegations had been of rape and sexual assault and the Respondent had also been unable to call the complainant to give evidence following a recommendation in a psychiatric report.

C.	We understood from the bundle of evidence that the Respondent had been unable to trace Ms Cosgrove’s whereabouts and was therefore unable to bring her as a witness. Ms Welsh was still working at Cornerways and was apparently available to be called but Mr Auburn said that he did not intend to call any witnesses other than Ms Kelly and Ms Seales. We regarded this failure to call Ms Welsh as critical. Mr Justice Scott Baker’s comment in the High Court was quoted with approval by the Court of Appeal in the case of C above:

‘Whether misconduct be established … on written evidence alone is something that will depend on all the circumstances of the individual case. Where, as here, the allegations are very serious and are challenged root and branch the tribunal may be placed in serious difficulty in finding this conduct established without hearing oral evidence from the complainants’.

D.	We were concerned that there was no evidence to corroborate the allegations made by Ms Cosgrove and Ms Welsh. None of the other staff at the Unit appeared to have noticed anything in the Appellant’s behaviour that would confirm the taking of drugs or drinking alcohol either on duty or before coming on duty. There was no physical evidence and it meant that it was the Appellant’s word against Ms Cosgrove’s as to whether or not drugs and alcohol had been consumed when on duty. We found that the evidence as presented was simply not persuasive in establishing proof on a balance of probabilities. 

E.	The investigation undertaken by Ms Seales was woefully inadequate; there were no details of times and dates for the alleged drug and alcohol incidents within the Unit, so it was not possible to ascertain whether or not other staff were also on duty. The small number of employees with a limited rota scheme should have facilitated these enquiries. The staff interviewed were only asked one question and that did not allow a full exploration of the allegations. No one went through the statements from Ms Cosgrove in an attempt to verify her allegations. We were unable to question either Ms Cosgrove or Ms Welsh. There was no independent evidence concerning the petty cash allegations 

F.	We were aware of Ms Cosgrove’s own problems and her apparent fear that the Appellant would tell Ms Seales about her drunkenness. The Appellant and Ms Welsh both described incidents of disagreement between them. We found it strange that they both chose the occasion of lunch at Ms Cosgrove’s house and the car drive afterwards to disclose these damaging allegations to Ms Kelly. Without being able to test their evidence, we could not be persuaded either of their credibility or reliability.

G.	To have one’s name on the Protection of Children Act list is a draconian penalty. In this case we were not satisfied on a balance of probabilities that the gross misconduct complained of actually took place. We were also not satisfied that the Appellant was unsuitable to work with children. We therefore determined that the Appellant’s name should be removed from the list forthwith.

The appeal is allowed. Our decision is unanimous.

Order

That the Secretary of State for Education and Skills remove the name of the Appellant from the list kept under Section 1 of the Protection of Children Act 1999.

Dated: 14 December 2004

Signed: Rosemary, Lady Hughes (Chairman)
	Ms C. Joffe
	Mr B. Cairns