JS v The General Social Care Council [2005] EWCST 553(SW) (15 May 2006)

JS

-v-

The General Social Care Council
[2005] 0553.SW

Before:
Mr John Reddish (Chairman)
Ms Margaret Halstead
Ms Caroline Joffe

Hearing date:  6 April 2006

Appeal
On 12 September 2005 the Applicant appealed, under section 68 of the Care Standards Act 2000, against the decision of the General Social Care Council, made on 11 August 2005, to refuse her application for inclusion on the register of social workers.

Representation
At the hearing Miss Nicola Greaney of Counsel, instructed by Thompsons, represented the Applicant and Miss Eleanor Grey of Counsel, instructed by Field Fisher Waterhouse, represented the Respondent.

Evidence
The Tribunal read two witness statements (dated 29 November 2005 and 10 March 2006) and heard oral evidence from Mr Andrew Skidmore, the Head of Standards and Registrar of the General Social Care Council.  The Tribunal also read the evidence of the Applicant contained in her witness statement dated 20 February 2006, which was unchallenged.

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

1.	The Applicant has a degree in law conferred in 1969 by the University of Bristol.  From 1969 until 1972 she worked as an Intelligence Officer.

2.	In 1972 the Applicant investigated the possibility of obtaining a post-graduate qualification in social work with a view to becoming a Probation Officer.  She was informed that she might be granted direct entry to the Probation Service on the basis that she would receive “in service” training leading to confirmation as a qualified Probation Officer after two years.

3.	In March 1972 the Applicant accepted an offer of direct entry to the Probation Service and commenced employment with the Bedfordshire Service.  She undertook an induction training programme and a programme of learning at Luton College of Further Education.  Between September 1972 and September 1973 the Applicant attended two separate, month-long residential courses at the University of Birmingham.  Throughout the first two years of her employment she attended monthly training meetings; was placed in various hospitals and other establishments to gain experience and was placed as a member of the staff of a Borstal institution to gain information for a dissertation on institutionalisation, which she subsequently presented.

4.	In March 1974 a Home Office Inspector confirmed the Applicant as a qualified Probation Officer after two days of assessment and examination of her work records.

5.	The Applicant remained with the Bedfordshire Probation Service until November 1974, when she left to become a full time mother.  In March 1975 she returned to part-time employment as a Court Welfare Officer and, in August 1977 she again left employment to devote herself full time to the needs of her children.

6.	In September 1978 the Applicant commenced part time employment as a Youth Leader.  From 1979 to 1980 she attended training and obtained qualifications in youth work.  From 1981 to 1982 she undertook training at a College of Further Education and was granted a Further Education Teaching Certificate.  Thereafter, the Applicant worked part time as a Lecturer and Youth Worker until she returned to work as a Probation Officer with Lincolnshire Probation Service in September 1983.

7.	In April 1988 the Applicant moved back to the Bedfordshire Probation Service where she worked as a Magistrates’ Court Liaison Officer.  In 1990 she became a Family Court Welfare Officer with the Hertfordshire Probation Service.  She remained in that post until 2001.

8.	In April 2001 the Applicant was appointed as a Family Court Advisor with the Children and Family Court Advisory and Support Service.  She now works for CAFCASS in London and she is studying for a Masters’ degree in Social Work at Royal Holloway College, University of London.

9.	On 21 November 2004 the Applicant submitted her application for inclusion on the register of social workers declaring that she held a Probation Certificate of satisfactory completion of courses recognised by the Advisory Council for Probation and Aftercare, awarded by the Home Office on 21 March 1974.

10.	The Applicant’s application was referred to the Council’s Registration Committee because, although it was accepted that the Applicant had completed in-service training and had been assessed by the Home Office in 1974, her qualification was not listed in Schedule 1 to the General Social Care Council (Registration) Rules 2003.

11.	The qualification relied upon by the Applicant is not, and has not in the past, been recognised by the Council or by its predecessor, the Central Council for Education and Training in Social Work, as a “qualifying social work award”.

12.	The Registration Committee met on 30 June 2005 to consider the Applicant’s application.  On that occasion the Committee adjourned consideration of the Applicant’s application to enable her to provide a written reply to the Council’s response and to make an application to give oral testimony.

13.	On 21 July 2005 Mr Anthony Douglas, the Chief Executive of CAFCASS, wrote to the Clerk to the Registration Committee.  He said that, as far as he was concerned, the Applicant was “a qualified social worker with over 30 years post-qualification experience”.  He also said that, while he understood the technicalities of the Applicant’s rejection by the GSCC, it defied common sense and logic.  He pointed out that the Applicant’s qualifications, post-qualification training and work experience “added up to the standard definition of a committed and long serving professional social worker”.

14.	The Applicant provided a lengthy written submission to the Registration Committee, including Mr Douglas’ letter and several others attesting to her qualifications and experience, which the Committee considered when it reconvened on 11 August 2005.

15.	On 17 August 2005 the Respondent sent a Notice of Decision of the Registration Committee to the Applicant, informing her that the Committee had decided to refuse her application for registration in the part of the Social Care Register relating to social workers on the basis that she did not have a qualification listed in Schedule 1 to the General Social Care Council (Registration) Rules 2005 and the Committee had no power to revise that Schedule and no discretion to allow her application on the basis of the quality and duration of her experience.

16.	On 12 September 2005 the Applicant lodged an Appeal Application in Form B.

17.	On 11 October 2005 the Respondent’s solicitors applied for an order that the appeal be struck out as being outside the jurisdiction of the Tribunal or otherwise misconceived, following the decision of the Tribunal in Blanchard v. General Social Care Council.

18.	On 21 October 2005 the President directed the Applicant to respond to the application to strike out her appeal by 12 November 2005.  The Applicant’s representative, Mr Martin Weinbren of the British Association of Social Workers, did so on 9 November 2005, alleging that the relevant Rules had been changed to allow registration of a social worker who had similar qualifications to those listed in Schedule 1.

19.	On 9 January 2006 the President rejected the Respondent’s application for an order that the appeal be struck out, holding that the points raised by Mr Weinbren were arguable; that it would not be appropriate to use the strike out provisions in this context and that a decision on the interpretation of the relevant paragraphs of the Rules should be made by a full Tribunal after hearing the evidence.

The law

20.	Section 58(1) of the Care Standards Act 2000 provides that, if the Council is satisfied that the applicant is (a) of good character; (b) is physically and mentally fit to perform the whole or part of the work of persons registered in that part of the register to which his or her application relates; and (c) satisfies certain conditions, it shall grant the application for registration, either unconditionally or subject to such conditions as it thinks fit.  In any other case, the Council shall refuse the application.

21.	The relevant conditions are set out in section 58(2) of the 2000 Act.  In the case of an application for registration as a social worker, the applicant must either (i) have successfully completed a course for persons wishing to become social workers approved by the Council under section 63 of the 2000 Act; or (ii) satisfy the requirements of section 64 of the Act (relating to overseas qualifications); or (iii) satisfy any requirements as to training which the Council may by rules impose in relation to social workers.  The applicant must also satisfy any requirements as to conduct and competence which the Council may by rules impose.

22.	Section 60 of the 2000 Act gives the Council the power to make rules about the registration of applicants.

23.	Rule 4(7) of the General Social Care Council (Registration) Rules 2003 provided that the Council could not grant an application for registration unless it was satisfied that the Applicant had successfully completed a course or requirement for training as approved by the Council and set out in Schedule 1 to the Rules.

24.	In Blanchard v. General Social Care Council [2005] 436.GSCC the Tribunal held that an Applicant who admittedly could not show that he had successfully completed a course or requirement for training as approved by the Council and set out in Schedule 1 to 2003 Rules was bound to fail and should therefore have his appeal struck out as being misconceived.

25.	The General Social Care Council (Registration) Rules 2005 (which came into force on 18 July 2005) replaced the General Social Care Council (Registration) Rules 2003.

26.	Rule 4(10)(c)(ii)(bb) of the 2005 Rules provides that the Council shall grant an application for registration if the applicant has “successfully completed a course or possesses a certificate or similar documentation, as set out in Schedule 1” to the Rules.

27.	Schedule 1 to the General Social Care Council (Registration) Rules 2005 is headed “Courses and Training” and has several parts.  The first part contains a list of the social work degree courses approved by the Council for the purposes of section 63 of the 2000 Act.  The second part contains a list of university qualifications obtained prior to 1971 which are regarded by the Council as satisfactory evidence of training.  The third part contains a list of the courses which were approved for the purposes of membership of the constituent organisations of the Standing Conference of Organisations of Social Workers in March 1970, which are also regarded by the Council as satisfactory evidence of training.  The final part of the Schedule is headed: “Holders of the following certificates, letters or other evidence of training shall also be regarded by the Council as having completed training for the purposes of section 58(2)(a)(iii) of the Act”.  Under this heading there is a list of certificates, letters of recognition and other evidence of completion of a recognised course.

Issues

28.	It was argued by Miss Greaney on behalf of the Applicant that

(a)	the Registration Committee misconstrued the 2005 Rules and, on a proper interpretation of them, the Applicant should be registered to practise as a social worker;

(b)	while it is accepted that the Applicant does not qualify for registration under the 2003 Rules, she is entitled to be registered as a social worker pursuant to the 2005 Rules on the basis that the requirements for registration were changed;

(c)	the registration requirements in the 2005 Rules are more flexible than those in the 2003 Rules because a person who has equivalent or similar training to the training listed in Schedule 1 is entitled to be registered;

(d)	the key words in the 2005 Rules are “similar documentation” and “other evidence of training”;

(e)	it is no longer necessary to show that an applicant has completed a particular course or obtained a particular qualification listed in Schedule 1: it is now open to an applicant to produce evidence of completion of similar training or qualifications to those listed in Schedule 1;

(f)	this is the plain and ordinary meaning of the 2005 Rules;

(g)	the point that there was no intention to widen the Registration Rules takes the Respondent nowhere in circumstances where a plain and ordinary reading of the 2005 Rules shows that the rules have been widened.

29.	  It was argued by Miss Grey on behalf of the Respondent Council that

(a)	The Respondent has no discretion to vary the requirements of the Act or the Rules made under it in any particular case;

(b)	rule 4(10)(c)(ii)(bb) of the 2005 Rules requires that the Council be satisfied that the applicant “has successfully completed a course or possesses a certificate or similar documentation, as set out in Schedule 1” to the 2005 Rules;

(c)	it is therefore necessary to see what courses etc. are listed in Schedule 1;

(d)	Schedule 1 to the 2003 Rules listed 11 types of course or training that were approved but did not list particular, approved courses at specified institutions;

(e)	Schedule 1 to the 2005 Rules altered this position by setting out a more detailed list of the qualifications issued by specified institutions that were approved but it did not alter or broaden the list of qualifications or courses approved by the Council in any way;

(f)	in addition, the 2005 Rules broadened the categories of evidence that could be used to establish the possession of relevant qualifications;

(g)	in 1971, the Recruitment and Training Committee of the Advisory Council for Probation and After Care was replaced by the Central Council for Education and Training in Social Work and courses were subsequently recognised by CCETSW but no “in-service probation course” running after 1971 was recognised by CCETSW;

(h)	Schedule 1 of the 2005 Regulations is consistent with this and there is, therefore, no category into which the Applicant’s qualifications fall;

(i)	it is evident both from Mr Skidmore’s evidence and also from the plain and ordinary meaning of the words of the rules that the 2005 Rules widened the type of evidence of qualification that the GSCC was prepared to accept but left the substance of the list of approved qualifications or courses unaltered;

(j)	the limited nature of the change is plain from the language of the Rules and of Schedule 1, in particular the use of the words “the following”, as well as from the way in which a specified list follows the introductory words;

(k)	the task for the Tribunal is limited to considering the merits of the decision of the Registration Committee and thus ascertaining, and applying, the proper meaning of the Rules which the Committee was required to apply;

(l)	the Tribunal does not have any jurisdiction to alter the Rules should it dislike their effect;

(m)	as the Tribunal observed in Blanchard v GSCC, if “the Applicant’s dispute is with the list as set out in the Schedule” then “this is not a matter in which the Tribunal has a role to play.”

(n)	in particular, the Tribunal cannot “read” any flexibility into the Rules if, on a proper construction of them, it does not exist;

(o)	the heading of the final part of Schedule 1 to the Rules cannot properly be read as providing that “Holders of the following certificates, letters or other evidence of similar training shall also be regarded by the Council as having completed training for the purposes of section 58(2)(a)(iii) of the Act”;

(p)	if the word “similar” were to be imported into the heading of the final part of Schedule 1 to the Rules, it would appear before the word “evidence” and not before the word “training”.  

Conclusions with reasons

30.	The parties agreed that the Tribunal should decide upon the proper interpretation of the relevant Rules and, in the event that it decided in favour of the arguments advanced on behalf of the Applicant, it should order that the decision of the Council should not have effect.  The Council would then, subject to any further appeal to the High Court, re-consider the Applicant’s application for registration in the light of the reasons given by the Tribunal for its decision.

31.	Thus, the Tribunal was not invited to decide the issue as to whether the Applicant’s qualifications and training are in fact similar or equivalent to one or more of those listed in Schedule 1 to the General Social Care Council (Registration) Rules 2005.  The parties agreed that the evidence before the Tribunal as to that matter was incomplete.

32.	The training upon which the Applicant relied took place between 1972 and 1974 and it is not listed in Schedule 1 to the General Social Care Council (Registration) Rules 2005.  The Applicant accepted that she does not possess any of the qualifications, certificates or letters of recognition listed in that Schedule.

33.	The Applicant also accepted that the decision of the Tribunal in the case of Blanchard was correct and that, under the 2003 Registration Rules, she would have had no proper basis for an appeal.

34.	The wording of the 2005 Registration Rules is different.  However, the Tribunal was unable to accept the ingenious argument presented on behalf of the Applicant to the effect that the new Rules give the Council a discretion to accept qualifications that are not listed in Schedule 1 to the Rules but are materially similar to one or more of the qualifications that are listed in that Schedule.

35.	The construction of the Rules contended for on behalf of the Applicant would involve importing the word “similar” from rule 4(10)(c)(ii)(bb) of the 2005 Rules into the heading of the final part of Schedule 1 to the Rules.  There is no proper basis for such an importation.

36.	Rule 4(10)(c)(ii)(bb) of the 2005 Rules provides that the Council shall grant an application for registration if the applicant has “successfully completed a course or possesses a certificate or similar documentation, as set out in Schedule 1” (emphasis added).  The word “similar”, as an adjunct to the word “documentation”, clearly relates to the certificates, not to the courses.  If the words “or similar documentation” were deleted from the sentence, it would still make good sense.  The words “successfully completed a course” and the words “possesses a certificate or similar documentation” have to be read disjunctively.

37.	The Tribunal therefore accepted the argument advanced by Miss Grey on behalf of the Respondent that, if the word “similar” were to be imported into the heading of the final part of Schedule 1 to the Rules, it would appear before the word “evidence” and not before the word “training”.  It would then read as follows: “Holders of the following certificates, letters or other similar evidence of training shall also be regarded by the Council as having completed training for the purposes of section 58(2)(a)(iii) of the Act.”  This would be consistent with the actual wording of rule 4(10)(c)(ii)(bb) and the Schedule.

38.	It is not possible to construe the heading of the final part of Schedule 1 to the Rules as providing that “Holders of the following certificates, letters or other evidence of similar training shall also be regarded by the Council as having completed training for the purposes of section 58(2)(a)(iii) of the Act”.  Such a construction would radically change the meaning of rule 4(10)(c)(ii)(bb) and the Schedule and would not be consistent with the words which actually appear in them.  This is not permissible by reference to the concept of “purposeful construction” or otherwise.

39.	Having decided upon the qualifications to be included in the lists set out in Schedule 1 to the Rules, the Respondent Council did not wish to have, or to give to its Registration Committee, any further discretion in relation to the list of acceptable qualifications.  The Council wanted the framework to be established and clear.  Although the drafting of the 2005 Rules leaves something to be desired, it is not possible to conclude that the draftsmen mistakenly achieved something which the Respondent Council, for policy reasons of its own, did not wish to achieve.

40.	The Applicant does not, at present, hold a recognised qualification which would enable her name to be included on the statutory register of social workers and neither the Respondent Council nor the Tribunal has any discretion to direct that her name be included notwithstanding that lack of qualification.

41.	The Tribunal has no role to play in the amendment of the list of acceptable training qualifications.  Parliament invested the Respondent Council with the power to establish the “required standard of proficiency in relevant social work”; to impose requirements as to training and to approve courses of training to enable persons completing them to attain the required standard.  Parliament did not give the Tribunal the power to order the Respondent Council to change its requirements, generally or in an individual case.

42.	The substantive position remains the same under the 2005 Rules as it was under the 2003 Rules.  An applicant must have successfully completed one of the courses or requirements for training listed in Schedule 1.  The only difference between the 2003 and the 2005 Rules is that the Respondent Council will now accept different and/or less specific forms of evidence of successful completion of such a course or requirement for training.

43.	The Tribunal found it surprising that a person with the qualifications and experience of the Applicant falls outside the definition of a “social worker”.  The Tribunal also felt some concern that that those with qualifications from overseas that are not listed in Schedule 1 are given the opportunity to persuade the Council that they have equivalent qualifications but those with domestic qualifications that are not listed in Schedule 1 are not given the same opportunity.  However, the Tribunal was satisfied that the relevant Rules exclude the Applicant and do not give her the opportunity to argue for discretionary inclusion. 

44.	The Tribunal therefore decided to dismiss the appeal.

45.	The decision of the Tribunal was unanimous.

Order

The appeal shall be dismissed.

John Reddish
Chairman

Margaret Halstead
Caroline Joffe
Date: 26 April 2006

Amended by the Chairman pursuant to Regulation 29

John Reddish
Date: 15th May 2006