NKALA v Secretary of State for Health [2007] EWCST 1015(PVA) (31 January 2008)

ELLEN NKALA

v

THE SECRETARY OF STATE FOR HEALTH 

[2007] 1015.PVA

On 25 January 2008 sitting in Milton Keynes Magistrates Court

BEFORE

Mr I Robertson (Chairman)
Ms M Adolphe
Ms G MacGregor

REPRESENTATION

Ms Nkala in person

Mr D Pievsky (Counsel) instructed by the Treasury Solicitor for the Secretary of State

THE APPEAL

1.	This is an Appeal dated 15 May 2007 brought by Ellen Nkala against her listing on The Protection of Vulnerable Adults (POVA) List. She was placed on the list in September 2005 but she says only learnt of the listing when applying for a job and the POVA was noted on her CRB in 2007. The appeal is opposed by the Secretary of State.

BACKGROUND

2.	Ms Nkala was contracted by a private sector agency on 7th June 2005 as a live-in carer. The arrangement was that the agency provided clients with carers for a fee, the worker being paid by the direct payment scheme  by the client and therefore being self employed. On 19 July 2005 the agency were notified by a client, GC, that she had given Ms Nkala a blank cheque to enable her to buy some glasses. It transpired that Ms Nkala had written the cheque to herself for £2500. GC had confronted her and she had apologised, paid £2000 back and agreed to the balance being made up through her pay. GC did not want Mrs Nkala prosecuted. The agency immediately took steps to terminate the placement. The agency wrote to Ms Nkala on 21 July and received a reply received on 17 August 2005 admitting the offence and apologising. She offered no mitigation other than her apologies. On 28 July 2005 the agency reported Mrs Nkala to the Secretary of State. She was provisionally listed on 9 November 2005 and confirmed on the list on 26 March 2007.

THE LAW

3.	By S81(1) Care Standards Act 2000 the Secretary of State has a duty to keep a list of individuals who are considered unsuitable to work with vulnerable adults, By Section 82 any organisation may refer an individual if certain conditions are satisfied. The Secretary of State having considered matters may include the individual on the list.

4.	S86 of the Act gives a person so referred the right to appeal to this Tribunal. By S86(3), the Tribunal may only dismiss the Appellant’s appeal if:

(a)	it is satisfied that he was guilty of misconduct (whether or not in the course of his duties) which harmed a vulnerable adult or placed a vulnerable adult at risk of harm; and

(b)	it is satisfied that he is unsuitable to work with vulnerable adults.

THE EVIDENCE 

5.	We heard live evidence from 2 witnesses. 
 
6.	The first was Mr Povey the managing Director of “Help Unlimited”. He confirmed the facts as outlined above. His note of a telephone conversation with GC on 19 July states as follows;

“(Unbeknown to GC ) Ms Nkala had cashed the cheque for £2500. The bank had called GC to query this payment, possibly because they were aware, as I was, that CG was severely disabled. GC did not want to report the matter to the police and said that Ms Nkala had returned £2000 of the money and would have the balance deducted from her pay at the end of the contract”

7.	He went on to say that GC expressed that she felt sorry for Ms Nkala who she believed had received some bad news about her health. He described GC as being severely disabled by Multiple Sclerosis and although her intellect was intact he felt her to be extremely vulnerable. Somewhat surprisingly he confirmed that all contact with GC had happened via the telephone and no-one from the agency had been to see her personally. He also confirmed that the agency took the decision not to contact the police although he accepted practice may be different now.
 
8.	Ms Nkala told us “The ‘individual’ gave me a blank cheques as I had left my glasses on a seat on the train and needed them to help care for her” This was the second time she had stayed with GC. She obtained the cheque on her first day with her. She said when she got the cheque she gave into temptation and made it out for £2500 to pay her son’s school (later university) fees. After a few days GC received a letter from the bank saying that she had to pay bank charges as she was overdrawn. GC phoned the bank and they explained about the cheque, at this stage Ms Nkala admitted to GC what she had done. 

9.	She said I apologised to the “individual”, she said GC was happy with this and her paying the money back. She was surprised therefore that GC contacted the agency. She thought somebody possibly a neighbour or social worker had influenced her. She told us that her background was as an accounts clerk for a “retail shop”. She said she began caring in 2004 or 2005 when she answered an advert in the “Lady”. She then worked for another agency and applied for this position when she lost transport, going to Devon for a 5 minute interview. In response to questions from the Tribunal she then said that she had begun caring in 2002 or 2003 caring for a gentleman for 9 months that she had found through the “Lady”. She told us that she had paid GC back the £2000 through her credit card. When asked if GC had been upset about what had happened she said yes “her main worry was getting charged for the overdraft”. She said that she was nasty to her, showed her little respect and had been unpleasant to her, hinting that GC had been racially abusive to her. When asked if she considered GC to be vulnerable she said no, as she had all her mental faculties. She felt a vulnerable adult was one who was not mentally competent.

ANALYSIS

10.	The purpose of the legislation is to prevent people working with vulnerable adults who may exploit, abuse, mistreat or take advantage of such persons. On Ms Nkala’s own admissions she clearly exploited her position and breached the trust of GC. She would have us believe that this was a one off instance of giving in to temptation, for which she is truly sorry and for which she has been punished enough, because her good name has been besmirched by being placed on the list.
 
11.	We however take a somewhat different view. We consider that Ms Nkala acted in a wholly calculating way and further that she is singularly unsuited to being a carer and should not be allowed to be one in the future. She was unable to give us a satisfactory history. It was full of inconsistencies. It was provided in a manner that would make it difficult to follow an audit trail to see if there were any misdemeanours in previous employment. 

12.	When talking of her role as a carer she displayed no warmth. She did not consider GC to be vulnerable and showed a complete lack of empathy as to how her fundamental breach of trust must have impacted upon her. Chillingly she tried to pass the blame onto GC and tried to make herself out to be the victim of GC’s nastiness and hinted at racism.

13.	With regard to the offence itself, for offence it is, we consider that this was wholly premeditated and calculating. We do not believe that she lost her glasses, it was a convenient excuse to get GC’s sympathy. She told us she had a credit card and therefore was well able to get her own glasses. We believe that she told GC a “sob story” to either get her sympathy at that point or when found out, hence the reference by Mr Povey of GC feeling sorry for her. The Offence itself was not a spur of the moment action it involved a number of stages. 1. The invention of the story, 2. The receipt of the blank cheque 3. The writing of the cheque, 4. The cashing of it and 5. The cover up. We believe that Ms Nkala made a miscalculation and believed GC had more money than she had. It was because the bank phoned to say that GC had become overdrawn that the fraud came to light. Even at this point Ms Nkala thought she had got away with it. She persuaded GC not to report it. In giving evidence to us she gave the impression that she was again the victim of a betrayal because her actions were reported. 

14.	Any person with an ounce of empathy should feel for GC. She was trapped in her house at the mercy of a live-in carer. She must have felt very frightened and angry. It is to prevent abuse to such people that the List exists. We are surprised and disappointed that the managers of the agency that had placed Ms Nkala in GC’s home, did not have the humility to visit her in person to apologise and reassure her about their procedures. Given the nature of these allegations and the potential impact upon GC, telephone and letter communication is not good enough. We wonder what checks were carried out and hope that the agency has significantly improved its recruiting and training procedures.

FINDINGS

15.	We find the Secretary of State’s case proved. We find Ms Nkala guilty of misconduct that harmed GC. We further find her unsuitable to work with Vulnerable Adults.

NOTE

16.	We would like to take this opportunity to re-emphasise the importance of oral hearings. It was only by hearing Ms Nkala and testing her evidence through cross examination and questions from the Tribunal that the true picture of her unsuitability arose.

DECISION

17.	We dismiss Ms Nkala’s appeal against her inclusion on the POVA list

This is the unanimous decision of the Tribunal

Mr I Robertson (Chairman)
Ms M Adolphe
Ms G MacGregor

31 January 2008