Ajao v General Social Care Council [2007] EWCST 1155(SW) (20 October 2008)

Babajaide Ajao
-v-
General Social Care Council
[2007] 1155.SW

Before:
Ms L Goldthorpe (Nominated Chair)
Mr Andrew Wilson
Mrs Jenny Cross

DECISION

Appeal 

1.	Mr Ajao (the Appellant) appeals under Section 68 of the Care Standards Act 2000 (CSA 2000) against the refusal of the General Social Care Council (the Respondent) to register him as a social worker on the Register maintained under Section 56 (1) of the Act. 

2.	The appeal is dismissed for the reasons set out below.

Representation

3.	Mr Ajao appeared in person.   Mr Andrew Swan of Ward Hadaway, Solicitors, represented the Respondent

Preliminary Matters

4.	The appeal was originally set down for hearing on 24 April 2008 but was adjourned part heard to clarify precisely what evidence the Appellant wished to challenge and to give the parties the opportunity to pursue direct evidence sought by the Appellant.  The hearing was resumed on 19th September 2008.

5.	In response to the directions given on 24 April 2008, the Appellant confirmed he had only ever had in his possession two photocopies of two Child Protection Review Conference reports dated 12 and 23 January 2004 respectively belonging to the London Borough of Hackney (‘Hackney’), the originals of which remained in Hackney’s possession.  He had sent copies of these photocopies to the Respondent and had destroyed the first set of photocopies at an unspecified date.   

6.	The Appellant contended he had been denied the opportunity to challenge directly the evidence of witnesses relevant to his case.  At an earlier stage in the appeal process he had been served with a witness statement from Mr McGill.    Mr Swan made it clear to the Appellant that the contents of that statement could not be challenged if Mr McGill did not attend to give oral evidence.   The Respondent contacted two other former GSCC employees who had had contact with the Appellant during the registration process, Mr Field and Ms Bennett, the latter by forwarding a letter from the Appellant.   Mr Swan confirmed that Mr Field was willing to attend the resumed hearing subject to receipt of a witness summons.   The letter from Ms Bennett indicated she had no recollection of the events and could not offer any helpful assistance.

7.	Following the adjournment, the Appellant chose not to seek legal advice or to be represented.   It was also made clear to him that he could apply for witness summonses and he confirmed he had been told both Mr Field and Mr McGill were available to give evidence.   However, he said he did not need these witnesses as they had not been his in the first place and their evidence could not now be relied upon.   

8.	We accepted Mr McGill’s signed statement dated 11 March 2008 on the basis that its contents could not be challenged, as he did not appear to give oral evidence.

Witnesses

9.	The Respondent witnesses were Ms Krysia Hayes, GSCC Casework Manager and Ms Sue Morris, a social work Group Manager for the London Borough of Hackney.  

10.	The Appellant had no witnesses.

Restricted Reporting Order and Exclusion Order 

11.	The Tribunal made orders under Regulation 18 (1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, prohibiting the publication (including by electronic means) in a written publication available to the public, or inclusion in any programme for reception in England and Wales, of any matter likely to lead members of the public to identify any child in these proceedings.  

The Law

12.	The General Social Care Council (‘the GSCC’) was formed by virtue of Section 54 of the Care Standards Act 2000 ("the Act") with the responsibility for promoting in England high standards of conduct and practice and training among social workers.   By Section 56(1) of the Act it is required to maintain a register of social workers. Section 57 (1) of the Act provides that an application for registration as a social worker must be made to the Council of the GSCC in accordance with the relevant rules.   These are set out in the GSCC Registration Rules 2005 and the GSCC (Conduct) Rules 2003.   On the 4 March 2008 the GSCC (Registration) Rules 2008 and the GSCC (Conduct) Rules 2008 came into force but under the transitional arrangements the old rules continue to apply in respect of any application referred to a Regulation Committee prior to that date.

13.	The GSCC must refuse to register an applicant if it is not satisfied that he is of good character (Section 58 (1) of the Act).  Section 57(1) of the Act also provides that an application for registration must be made in accordance with any rules made by the GSCC, which must refuse registration where the applicant does not satisfy any requirements as to conduct and competence imposed by these rules (Section 58(3) of the Act).  Rule 4(3)(a) of the GSCC (Registration) Rules 2005 provides that in connection with his application an appellant must provide evidence as to:
 
(i)	his good character (as it relates to his fitness to practise the work expected of a social care worker), including endorsements from an employer or where the Appellant is self employed or not in employment, from a social care employer or other person acceptable to the GSCC as being fit to provide such an endorsement; 
(ii)	good conduct; and 

(iii)	competence.

14.	In making a decision about registration, the GSCC must take into account the Code of Practice.  This sets out the conduct expected of social care workers by reference to a number of principles, including the fact that social care workers must protect the rights and interests of service users and strive to maintain their trust and confidence and uphold public trust and confidence in social care services. This includes: -

"2.1	Being honest and trustworthy;
2.2	Communicating in an appropriate, open, accurate and straightforward way.
2.3	Respecting confidential information and clearly explaining agency policies on confidentiality to service users.”

15.	Rule 14 allows the GSCC to refer an application for consideration by its Registration Committee, which is made up of independent panel members who sit with an independent legal adviser.  

16.	Section 68 of the Act provides the right of appeal against a decision to refuse an application for registration to the Care Standards Tribunal.   Section 68 (2) of the Act states that the Tribunal may confirm the decision of the GSCC or direct that it shall not have effect.   An appeal before the Tribunal is by way of a rehearing and, generally, a tribunal has the same powers as the Committee against whose decision the appeal is brought.   

Burden of proof

17.	The onus is on the Appellant (or the Applicant before the Registration Committee) to demonstrate that he is a person who meets the requirements of s.58(1), namely to prove that he is competent and of good character (Jones –v- Commission for Social Care Inspection [2004] EWCA Civ 1713; [2005] 1 WLR 2461) and CR -v- General Social Care Council [2006] 0626. SW 23.  An understanding of the importance of openness and integrity is material to a judgment as to whether an Appellant (or Applicant) is of good character.

Facts

18.	The following matters are intended to identify the key facts in this case but to preserve the anonymity of the families who were clients of Hackney Social Services department at the relevant time.

19.	The Appellant, who is in his late twenties, holds a Diploma in Social Work for Development awarded to him in April 2000 in Nigeria.   From 2003 to 2005 he worked at various times in social work and social care settings in the UK, including posts as a residential support worker and an agency social worker.   During this period he also worked as a social worker for the London Borough of Hackney (‘Hackney’) for a few months or weeks until early 2004.  

20.	The Appellant applied for registration as a social worker on 30 March 2005.   His application form was submitted with a personal statement emphasising 3 core attributes he regarded as necessary to be a successful social worker:  integrity, professionalism and competence.   His documentary evidence included a number of references from employers stating he was reliable, diligent and professional, honest and trustworthy and had excellent communication and reasoning skills.   There was no reference from Hackney.

21.	As part of the registration process an applicant must provide information in Part 2 of the application form to show he or she meets the training requirements of the Diploma in Social Work (‘DipSW’).  For any application received from social workers trained and qualified outside the UK, the International Recognition Service (IRS) carries out an equivalency assessment.   In this case, the IRS experienced some delays in obtaining and verifying the necessary information from the Appellant’s university in Nigeria.   However, in May 2005 the Appellant was sent a Letter of Verification confirming that his Diploma was recognised as a social work qualification. 

22.	Having undertaken an initial assessment, on 19th October 2005 Mr Corbishley, an International Recognition Officer sent the Appellant a letter stating that the assessor wanted further clarification and requesting information to address areas of concern in the application.   He advised him that this included evidence of legislation, values and working with theories and models at a DipSW level and evidence he had managed to adapt to the legal system and work practice in the UK as the Appellant had stated in his application he had had difficulty in so adapting.  He suggested this could be provided through references from previous employers, “especially from Hackney” and “any supplementary documentary evidence such as copies of reports and assessments”.   His letter encouraged the Appellant to contact the IRS in the event of any difficulty in providing the information.

23.	On 12 November 2005 the Appellant wrote to the IRS to say he was struggling to obtain the information from Hackney as Ms Morris, his former line manager, was on annual leave.   He confirmed he would supply a reference and a complete list of all his duties and responsibilities during his time at Hackney.  The letter enclosed two anonymised Child Protection Conference Review Reports dated 10 January 2004 and 3 February 2004 containing signatures purporting to be those of himself and Ms Morris as his supervisor.   

24.	On 7 December 2005 Mr McGill, an IRS officer, contacted Ms Morris and faxed her the two reports.   On 3 January 2006 Ms Morris confirmed that the Appellant had worked on 3 cases during his short period of employment but she did not recall signing any anonymous reports for him and “so it might be that he forged my signature.” 
19.	During 2006 there was further contact between the Appellant and officers of the GSCC.   On 27th September 2006 Ms Morris stated that having looked again at the signatures they might or might not be hers but she could not say for certain.   Mr Field spoke to the Appellant that day and the Appellant, on being told the signatures were possibly forged, said they were originals.   On 10th October 2006 Mr Field wrote to the Appellant to confirm this and to notify him that a referral to the Committee was being considered.   He requested comments on reports and gave detailed explanations.

25.	On 11th October the Appellant telephoned to say he had submitted the reports after anonymising them and had copies of the originals at home.  He confirmed he had copied Ms Morris’ signature.   On 17 October the Appellant sent copies of the reports to the Respondent and confirmed they were actual copies of the originals.   On 19 October 2006, having been sent faxed copies of the reports Ms Morris confirmed they were not originals and on 25th October she stated the signatures were not hers.

26.	On 23rd January 2007 the Appellant explained he had anonymised the original reports by changing the names on the computer.  He denied any intention to deceive but said he had been unable to contact Ms Morris.   He failed to respond to the query about why he had taken the trouble to disguise his own handwriting.

27.	The Appellant was notified on 8th March 2007 that the GSCC was minded to refuse his application for registration, so it would be referred to the Registration Committee.  On 2nd August 2007 the Appellant was notified that the Registration Committee had refused registration on the grounds that it was not satisfied as to the Applicant’s good character and conduct as required under Section 58(1)(a) and (3) of the Act.   The decision letter informed the Appellant that the Committee was very concerned about breaches of paragraphs 1.4, 2.1, 2.2 and 2.3 of the Code of Practice in that the Appellant had kept confidential documents belonging to Hackney some 3 years after he finished working at there and in his statement he had stated he saw nothing wrong in making and keeping copies, that he had submitted documents with forged signature, had maintained a pretence they were genuine and it was when confronted with Ms Morris’ response that he had disclosed the forgery.

28.	On 17th September 2007 the Appellant appealed to the Care Standards Tribunal.  

29.	The Respondent pointed to the fact that the confidential documents retained by the Appellant after the end of his period of employment with Hackney contained sensitive material including allegations of domestic abuse in family X, and interviews with children in that family.   In seeking to use them in support of his application, he had recognised the need for confidentiality in his initial efforts to anonymise them, but had then submitted versions to the GSCC containing the real names of the clients apparently on the basis that it would respect confidentiality.   In so doing as a qualified social worker he had failed to respect the confidentiality of clients, regardless of whether he had originally had permission to take them home or not and regardless of the purpose of keeping them when he was no longer employed by Hackney.   This constituted a breach of confidentiality contrary to paragraph 2.3 of the Code of Practice.  It also demonstrated a lack of insight.

30.	The Respondent conceded Mr Corbishley could have been clearer about precisely what information he was seeking.   However, the Appellant had never sought clarification of what was required, nor had he taken any step himself to contact anyone about the reports.   On 12 November 2005 he told Mr Corbishley he had changed the personal information in the reports to protect the families but he made no mention of Ms Morris’ signature and had not sought to suggest that they were anything other than real reports.

31.	Mr Field’s note of the telephone call on 27 September 2006 recorded that the Appellant remained adamant the signature was that of Ms Morris and had continued to assert this some 10 months later.  Nor had he made any reference to any other interpretation in correspondence.   His admission in October 2006 that he had signed the reports in Ms Morris’ name was to his credit, but this was in response to a direct invitation to comment on the possibility that the signatures were forgeries 

32.	In his grounds of appeal, the Appellant admitted keeping confidential documents belonging to Hackney, which consisted of 2 copies of 2 reports he had done when working there.   He said he was unaware he should not have had the documents but had never divulged them to anyone other than the GSCC.  His stated reason for keeping them was to improve on his report writing skills.   He admitted falsifying the signatures but that he had been frank in explaining the first set of reports were not ‘authentic’ because they were not originals.   He said he had no need to contact Ms Morris about signing the documents because he already had her signature on the copies of the originals.   He had only submitted these copies when his integrity was being questioned.   He asserted he had not been treated fairly and the process had taken far too long.   He also claimed the way in which the application had been processed was unsatisfactory in that it placed an over reliance on one employer and called for information that was confidential.

33.	In his witness statement he confirmed the reports bore the “authentic” signatures of himself and his team manager, Ms Morris. He continued to maintain he had “signed as my manager and myself” not in order to deceive or be fraudulent but because he could not get in touch with Ms Morris.   His aim was “to show what a sample Child Protection Review Conference report looked like” by creating and submitting new ‘unauthentic’ reports based on the originals but changing dates and details and signing his and Ms Morris’ signature.   He stated he knew he should not have done this and had destroyed the copies, but his explanations and his subsequent apology when confronted had been to no avail.  

34.	In oral evidence the Appellant alleged the Respondent had been dishonest because there were failures to record all telephone conversations or contact with him and the notes of telephone calls were either incomplete or made up.

35.	The Appellant insisted the two photocopies of the original reports dated 12 and 23 January 2004 were the only documents that had ever been in his possession.   He had been allowed to take reports home in the first place, but subsequently had realised his error in keeping them after he had left.   He said he did not believe his registration should be refused on the basis of a mistake he had openly admitted and apologised for when the issue about the signatures had been brought to his attention.   When asked for the reports by the Respondent he had been given assurances there would be no repercussions and trusted them to deal with confidential material appropriately.  He had taken the correct step in destroying the reports having accepted he should not have had them in the first place or have retained them.  Throughout his contact with the Respondent no-one had mentioned the reports in correspondence until 10 October 2006.   Whilst he greatly regretted his actions, he asserted he had been consistently clear, open and truthful throughout the process and had admitted to the forgery when confronted with it.  

36.	He said he had not sent the copies back to Hackney as he thought this might further abuse the rights and privacy of the service users should they fall into the wrong hands.   Furthermore, he had not been instructed to do so.   He told us that given a similar situation now he would not keep reports.   

37.	But he still maintained the signatures were those of Ms Morris since she had signed the reports:  he had forged Ms Morris’ signature on the first set of reports but had made more than one copy of the second set of reports.   Therefore, that second set, dated 12 and 23 January respectively, was a copy of the originals and the signatures were those of Ms Morris.   

38.	Finally, if the Tribunal upheld the refusal of registration based on his admissions about the retention and forgery, he could accept that.   His aim in appealing had been to set the record straight because he denied hiding anything at any stage and could not accept the view that he had maintained a pretence throughout.   He understood his actions appeared fraudulent and deceitful, but he insisted it had never been his intention to deceive.  Having made it clear to the Respondent that the reports had been anonymised, he had thought they would not regard them as authentic and therefore would not investigate their validity.   

Findings 

39.	There were clear breaches of the Code of Practice admitted by the Appellant in his retention of confidential material and his submission of two versions of reports containing sensitive personal information about service users in support of his application, at least one of which contained falsified signatures.   The Appellant never sought to deny he had retained this material.   Nevertheless, whilst he might well have had (or believed he had) expressed or implied permission to take reports home as part of his responsibilities, it was wholly unacceptable and wrong to retain such material, whether in the form of originals or copies.  It is to his credit that he finally recognised that.   However, it remains a fact that he sought to use this material to support his application and did so on more than one occasion.   These actions alone justified the Respondent’ concerns.   

40.	His assertions that he had taken appropriate steps to preserve the confidentiality of service users were not persuasive.   It matters very little what steps he took to anonymise the contents or to destroy the reports thereafter, he should not have had them in the first place.  He also gave no satisfactory explanation for his actions in relation to the second set of reports containing the real details of the families.   His explanations about the process of anonymisation did not inspire confidence nor were they credible:  as a matter of good practice a trained and qualified social worker should have known that consistent anonymity was necessary.   It must be clear to any such professional dealing with vulnerable children and families that any information about them must be treated with the utmost care and confidentiality.   This is not just straightforward common sense or a matter of training, but an important principle of professional practice clearly stated in the Code of Practice and supported by the law. 

41.	The issues therefore centred on whether the Appellant had been open in his communications, honest and trustworthy in his dealings with the Respondent and had demonstrated his ability in future to abide by the social work Code of Practice. 

42.	The Appellant’s use of this material and his dealings with the Respondent were not, on the face of it, particularly open.   He freely admitted he had submitted these documents in response to a request for further evidence but did not actively seek help on whether the material was appropriate or in what form it should be submitted.   Instead, he appeared to believe that the Respondent would not take steps to authenticate the documents.   

43.	We were also concerned about the Appellant’s approach to the matter of the signatures.   He was consistent in maintaining the copies he had were ‘authentic’ in the sense that they were direct copies of the originals and the signatures on them were photocopies of his and Ms Morris’ original signatures.   However, although he said he wished he had never forged Ms Morris’ signature in the first place, his denials of her evidence about the validity of the signatures were inherently implausible and we can find no reason to suggest that they were indeed her signatures.   The location and appearance of them on the documents suggested they were not.   We found her to be a credible witness who had no reason to lie.

44.	It is to the Appellant’s credit that he had the sense to acknowledge during the hearing that his actions might well appear fraudulent and deceitful, despite his insistence that was not his intention.   But effectively he dug himself into a hole in the first place by using reports that were 3 years old and patently ‘authentic’ in an attempt to meet what he interpreted as requests for more evidence of his abilities as a social worker.  Ms Hayes’ said her expectations were that an applicant would produce reports like that and it is possible he did not understand what was being asked of him.   What is of concern is that he appears to have believed the Respondent would initiate a dialogue with him having taken steps to authenticate the documents.  He made no attempt himself to clarify matters in any detail or to contact Hackney for permission to submit the copied reports.   This lack of insight demonstrates a level of misunderstanding and an inability to communicate openly.

45.	Whilst we understand the Appellant believed he had been unable to obtain evidence to show the Respondent’s evidence was incomplete; nevertheless he had the opportunity to call at least one of the people with whom he had had direct dealings, by witness summons if necessary.   In the light of the prolonged adjournment and his decision not to pursue the evidence of Mr Field, his continued attempts to challenge that potential witness’ credibility in his absence by suggesting certain recorded conversations had not taken place do little to bolster the Appellant’s own credibility.   Indeed, it is a matter of concern that he chose to present his case by decrying other professionals in this way.

46.	There is some doubt about whether the Appellant deliberately intended to continue the form of deception he had chosen from the outset, or indeed to maintain a pretence throughout the process in order to obtain registration.   He clearly believed he had not done this, but his actions suggest otherwise.    He accepted it had been wrong in the first place and it is possible there was an initial lack of consistency in his intentions and the deception itself.  He seemed to change his mind at various points about precisely what it was he was intending to achieve, but in his desire to make his supporting evidence appear ‘authentic’ he went well beyond what was necessary to the point that his actions turned into a direct deception. He does not appear ever to have accepted that the onus was on him to correct any impression or misunderstanding, with the result that, in reality, the deception was maintained throughout the process.

47.	We were concerned that the Appellant continued to maintain that in reality his actions were not fraudulent or deceptive, despite appearances.   This reinforced the impression of a worrying lack of insight, compounded by the fact he appeared surprised that the Respondent had checked the authenticity of the reports.   We also find it difficult to understand the Appellant’s reasoning and why he thought it necessary to make such an effort to accurately reproduce Ms Morris’ signature in the first place.   

48.	We are conscious that the Appellant was not represented and there were undoubtedly flaws in the way in which the Respondent handled the process of disclosure to him during the course of this appeal and the final hearing.   Nevertheless, we do not believe that this ultimately prejudiced his case.   He had the benefit of a lengthy adjournment to address these issues and nothing that emerged from that or from the material disclosed supported any of his contentions that there had been inaccuracies and errors on the part of the Respondent in their conduct of his case.

Conclusions with reasons

49.	In Bolton v The Law Society [1994] 1WLR 512 Sir Thomas Bingham MR said “…a profession’s most valuable asset is its collective reputation and the confidence which that inspires”.  

50.	In the light of the findings we have reached in respect of the facts set out above, the Appellant has failed to satisfy us that he can meet the requirements set out in section 58 CSA for registration as a Social Worker.  The errors he described as a ‘mistake’ were serious ones and were compounded by his actions throughout the process of application for registration and appeal.   In dealing with his application and the appeal he also failed to demonstrate sufficient insight or understanding of the standards to be expected of a social worker and we have no confidence that he would be able to inspire the necessary public trust. 
  
Accordingly, our unanimous decision is: 
APPEAL DISMISSED

Ms L Goldthorpe (Nominated Chair)
Mr Andrew Wilson
Mrs Jenny Cross
Date: 20th October 2008