P v Secretary of State [2005] EWCST 562(PVA) (26 May 2006)

Mrs P
v
THE SECRETARY OF STATE FOR EDUCATION AND SKILLS 

Appeal No [2005] 562.PVA / [2005] 563.PC

On 2, 3 and 4 May 2006 sitting in Oxford.

BEFORE

Mr I Robertson 	Chairman
Mr B Cairns
Mrs C Wiggin

REPRESENTATION

Mrs P in person

Ms Busch of counsel instructed by the Treasury Solicitor for the Secretary of State

BACKGROUND

1.	This is an Appeal brought by Mrs P on 23 September 2005 against the decision of the Secretary of State to place her upon both the Protection of Vulnerable (POVA) Adults and Protection of Children Lists (POCA). Although following the hearing of all the evidence the Secretary of state withdrew their opposition to this (the POCA) appeal. Mrs P worked as a carer for the elderly. The Secretary of State alleges broadly that she is guilty of financially exploiting her position with one  (older person) in particular (Miss R) and is accordingly unsuitable to work with Vulnerable Adults. By the same token the Secretary of State originally alleged that she was equally unsafe to work with Children. 

2.	Mrs P was employed by agency A as a cleaner for  Miss R in her home. It is accepted by all parties that she formed a good relationship with Miss R and at some point her role metamorphosed into that of a carer. In or around 2002 agency A was taken over by agency B and Mrs P continued in her role. On 2 September 2004 Miss R told the reviewing officer that she had been exploited by Mrs P and her husband and that she felt intimidated by them, Specifically she alleged that she had been made to pay for Mrs P and her family to go on holiday twice, had had a carpet and armchairs bought for her at excess price, had handed money over to a Christmas club that was unaccounted for, had done unnecessary gardening which she had to pay for and had to pay out for other matters. 

3.	When interviewed Mrs P admitted;

1)	Going on holiday twice with Miss R but Miss R only paid for herself
2)	Bought with Miss R’s money a new carpet made up of carpet tiles and laid by her husband 
3)	Bought for her two new armchairs
4)	Bought for her a new bed
5)	Arranged for Mr P to do occasional gardening work at a rate of £10 a session
6)	Arranged via the social worker for Mr P to redecorate at a cost of £400
7)	Arranged for Mr P to clean her carpets monthly at a cost of £20
8)	Took up to £35 a week to put in a Christmas club (all of which was accounted for)

It was against this background that this matter came before the Tribunal.

PRELIMINARY ISSUES.

4.	There have been a number of directions in this case and by telephone directions on 30 March 2006 various Orders were made for third party disclosure from social services, the police and a bank, together with witness summonses for a number of reluctant witnesses. On 23 April Mrs P applied for a direction that Miss R be called as a witness and a direction was made that this be dealt with as a preliminary matter by the Tribunal sitting on 2 May. It was accepted by all parties that Miss R is a Vulnerable Adult. Accordingly the tribunal has discretion as to how to deal with the issue of her evidence. By Regulation 17 (3)(b) The Tribunal shall…..

“Having regard to all the available evidence, including any written representations made by the parties consider whether it would prejudice the vulnerable adults welfare to give oral evidence to the Tribunal – 

(i)	in any circumstances

(ii)	otherwise than in accordance with paragraph (5)”

Paragraph 5 states as follows;

“If he directs that this paragraph shall apply in relation to the vulnerable adult, the President or Chairman shall – 

(a)	secure that any arrangements he considers appropriate (such as the use of video link) are made to safeguard the welfare of the vulnerable adult; and
 
(b)	appoint for the purpose of the hearing a person with appropriate skills or experience in facilitating the giving of evidence by vulnerable adults”

5.	Having had the options explained Mrs P felt that she wanted an intermediary under 5(b) appointed as she accepted that Miss R would be unable to give evidence. She wanted her evidence tested as she felt that Miss R  had told lies about her. Ms Busch opposed her giving evidence on the basis that;

a)	The Secretary of State’s primary case was based upon Mrs P’s own admissions;
b)	The Secretary of State accepted that Miss R was in any event an unreliable witness and;
c)	It would adversely effect Miss R’s welfare for her to give evidence even through an intermediary

6.	Having considered the representations and the papers generally we felt that we would not be assisted in considering the case by hearing evidence from Miss R. She had made allegations to a number of people and given a statement to the police. We are clear what is being alleged. Having considered the papers it is clear that Miss R suffers from a number of disabilities. She has a low intellect, is housebound, partially sighted and suffers from insulin dependant diabetes. We cannot conceive that it would be in her interests to give evidence in this matter no matter how we tried to apply our discretion to ease the burden. We accept the Secretary of State’s submission that her primary case is based upon admissions in any event and further accept that in considering the allegations we have to apply less weight to them where there is no corroboration as the evidence of Miss R has not been tested. Accordingly we applied our discretion and directed that Miss R should not give evidence

THE LAW

7.	The Secretary of State has a duty under S81 Care Standards Act 2000 to;

“…keep a list of individuals who are considered unsuitable to work with vulnerable Adults”

8.	The effect of inclusion on the list is spelled out by S89 which, to paraphrase, effectively prohibits employment in a care position and makes it a criminal offence to apply for a job, or do any work in a care position.

9.	A referral was received from Mrs P’s employers in September 2004 under S82 Care Standards Act 2000. This places a duty on employers to refer if; 

“(2)(a) that the provider has dismissed the worker on the grounds of misconduct …………which harmed or placed at risk of harm a vulnerable adult.”

10.	Mrs P was put on the list on 28 July 2005 and she appealed on 23 September 2005. On appeal the tribunal has to consider the matter as follows;

“S86(3) If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely-

(a)	that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult; and
 
(b)	that the individual is unsuitable to work with vulnerable adults,

the Tribunal shall allow the appeal or determine the issue in the individuals favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual’s inclusion in the list”

THE EVIDENCE

11.	We heard evidence from 5 witnesses called by the Secretary of State. Mrs K was the general manager of the agency , Mrs B their training manager, Ms T was a co care worker from the agency, Mr S the local authority reviewing officer who attended upon Miss R on 2 September 2004 and Ms B her subsequent social worker. Mrs P called Mrs G, Miss R’s social worker from the time Mrs P was appointed until March 2004, Mrs E the District nurse manager who visited the house frequently throughout the appropriate time, Mrs G, Miss R’s carer in 2000, Mrs J, a previous carer, Mrs S her original manager with agency A, Mr P her husband and also gave extensive evidence herself. 

12.	Having considered the oral evidence, the statements of witnesses not called and all the documents contained in 3 lever arch files including the notes of Miss R’s allegations we find as follows.

13.	 When agency A was taken over by agency B it was clear there were few procedures in place and that there had been little training of staff. Mrs K and Mrs B her training manager wrote new procedures and began to put training in place. They both felt that Mrs P should have known these procedures as they were posted to her. No evidence was produced however that she ever received these. It quickly became clear that prior to September 2004 Mrs P had received a woeful lack of training and guidance. 

14.	She was originally appointed as a cleaner and Mrs S accepted that as a cleaner she received no induction training and in particular no training as to how to handle money. We were shown an induction questionnaire signed by Mrs P on appointment which suggests that she received a thorough induction training in all policies and procedures. Mrs P denied having had any such training and Mrs S accepted that the form was simply a cynical box ticking exercise. 

15.	We find that at the time of appointment Mrs P had absolutely no training or induction. 

16.	 It is clear from the evidence of Mrs G and Mrs S that Miss R was a difficult client. She caused problems, complained about staff and made the agencies job difficult. Mrs G felt that there was something wrong with Miss R, she felt vulnerable and was particularly concerned about the malicious involvement of a neighbour who Miss R had complained had stolen from her. Mrs G was Miss R’s carer at the time Mrs P started as her cleaner. Mrs G said that Miss R treated Mrs P as a daughter, she could do no wrong and when Mrs G asked to be moved, Mrs P took over her role. The agency accepted this, and the consequence was that all complaints from Miss R  to the agency stopped and they had a much easier time. 

17.	We find that Mrs P’s role metamorphosed into that of a carer without her receiving any training, guidance, support or supervision of that new role.

18.	 It is clear from the evidence that from early on Mrs P was expected under the care plan to handle Miss R’s money. Mrs K and Mrs B said that there were clear procedures in place involving a triplicate cash book and that Mrs P should have used this cash book every time she handled money. 

19.	We find that Mrs P was never told this, never given a cash book and never received guidance on handling money.

20.	 Mrs K and Mrs B accepted that personnel procedures were rudimentary when they took over agency A. They have gradually introduced supervision and appraisal systems. It is clear and we find that prior to September 2004 Mrs P never received any supervision in her job, she was never appraised and never seen in situ. She received only rudimentary training in POVA matters consisting of a video in a Residential Home setting and a very superficial questionnaire arising from it. She never attended any team meetings but attendance at these was voluntary. 

21.	We find that prior to September 2004 she had been unmanaged and allowed to get on with matters on her own in a totally unacceptable fashion.

22.	 What is clear from all the papers that we have seen and from all the evidence we have heard is that Mrs P had a very close relationship with Miss R. The word trusting was used by more than one witness. There was no real suggestions from staff and others who saw them together frequently that there was anything untoward in their relationship. Mrs P impressed us as a straight forward and uncomplicated person. We found her to be compassionate and she spoke of Miss R with genuine fondness even now. 

23.	Mrs G gave evidence that when it became clear that Miss R’s bungalow needed decorating she accepted Mrs P’s suggestion that her husband who is a decorator should do this. There seems to be no question that the work was done to a high standard at a commercial rate. For Miss R’s social worker to sanction this relationship is not only bad practice it clearly gave the green light to Mrs P to become more involved in Miss R’s life than was appropriate or advisable. Her husband began to regularly clean Miss R’s carpet (which was in a terrible state because of her own incontinence and that of her dog and cats) at a cost of £20 per month. He cleared her garden when it got into a poor state (we accept from the evidence of Mrs E amongst others that it was in such a state despite the contrary assertion of a council official who provided a statement) and did occasional other work at a rate of £10 per session.

24.	 In September 2003 Mrs P took Mrs R on holiday with them over a long weekend. They went to a holiday camp in the Cotswolds. Miss R appears to have had a good time there. We accept Mrs P’s evidence that Miss R merely paid for herself both on this occasion and subsequently when they all went for a week in April 2004. We do feel that the mere act of taking her on such a modest family holiday with them indicates a fondness for Miss R rather than a desire to swindle her. As Mrs P said herself in evidence there are easier ways of exploiting someone. We accept also that Mrs P bought carpet tiles, two armchairs and a bed for Mrs R using her money. We also find that Mrs P made a number of withdrawals from Mrs R’s account over the years. We find that such withdrawals were authorised by Miss R and it is clear from an analysis of her expenditure that the totality of such withdrawals can be accounted for in Miss R’s expenditure patterns. 

25.	We find that in all the financial transactions that took place there was no element of dishonesty or financial exploitation. Proper commercial rates were applied where tasks were undertaken and all purchases were accounted for. We are pleased that in closing submissions counsel for the Secretary of State acknowledged that they could not make a case for dishonesty.

26.	 We do find however that Mrs P clearly overstepped the bounds of good practice. We feel that she acted unwisely possibly even recklessly. She undoubtedly treated Miss R as a friend. She allowed herself to become too close and involved her family in her life in a totally inappropriate way. We feel however that the blame for this falls squarely on the shoulders of the agency because of their lack of training, supervision or even basic management.

27.	 Having made the findings that we do we are left with the accusations and allegations of Miss R made in September 2004 to a number of different sources. We have not heard from her for the reasons set out above but have to treat her accusations with all seriousness given her vulnerability. From considering the evidence it is clear that Miss R has a history of making such allegations previously in respect of her neighbour and has a history of suddenly falling out with persons for no apparent reason. A dog walker called Paul being one such person. Prior to Mrs P becoming her carer she was extremely difficult and on occasions when Mrs P was not available reverted to type. We note Mrs G’s evidence that Miss R made her so uneasy she asked to be moved from her. We also note her evidence that on two occasions Miss R struck her.  

28.	On the Tuesday prior to the allegations being made Mrs P says she had a confrontation with Miss R about her incontinence. We believe that this may well have triggered the allegations and we note with alarm that the neighbour who had that previously been banned from the house because of her malign influence was not only present when the allegations were made but was seen to prompt her by Mr S.

CONCLUSIONS

29.	We must now apply our findings to the test set out above.
 
30.	 We find that Mrs P is guilty of misconduct. She herself accepted that she was wrong to go on holiday with Miss R. She was wrong to introduce her husband into the relationship and to become so heavily involved in Miss R’s financial affairs. There is a clear dividing line between a Carer and a friend and Mrs P crossed this line. By doing this she placed Miss R at risk of harm. Miss R became reliant upon Mrs P and in that position was vulnerable to financial exploitation. The fact that we found that no actual financial exploitation actually occurred does not mean that no risk existed. That risk is clear and obvious. The lack of any financial accountability speaks to this.

31.	 Having been satisfied with regard to the first of the two limbs of the test we have to consider whether  Mrs P is unsuitable to work with vulnerable adults. Having conceded that there is no element of dishonesty involved in this case it appears to us that the secretary of state has a difficult task in showing unsuitability. It may be that an individual is so incompetent or negligent in circumstances such as this that it renders them unsuitable.  Equally if they are intransigent, refuse to accept their shortcomings and are not prepared to be supervised they may also be unsuitable. In this case however Mrs P was left to her own devices, received little training, no supervision and no management. She accepts her failings and is willing to be supervised. Above all she presents as a caring person and we have little doubt that provided she is properly trained, managed and supervised she will provide good quality care in future. 

32.	 Accordingly we allow the appeal.

33.	 We would like to add as an afterthought a few comments. This is a classic case which demonstrates the virtue of oral hearings. The papers produce a damning picture. It was only through seeing and hearing the witnesses that a different picture emerged. We made clear when announcing our decision at the end of the hearing that we made absolutely no criticism of the Secretary of State for placing Mrs P’s name on the List. Equally we would like to give credit to Mrs P for the way that she presented her case and for the way she selected her witnesses.

APPEAL ALLOWED UNANIMOUSLY

 Mr I Robertson 	Chairman
Mr B Cairns
Mrs C Wiggin
26 May 2006