KL v General Social Care Council [2008] UKFTT 7 (HESC) (11 December 2008)
 Schedule 6: Social workers/social care workers - Refusal of registration

[2008] UKFTT 7 (HESC)

KL

and

GENERAL SOCIAL CARE COUNCIL
[2008] 1301.SW

Before:
Upper Tribunal Judge Rowland
Mrs Lydia Gladwin
Ms Bez Chatfield

DECISION

1.	We allow this appeal to the extent of varying the conditions of the Appellant’s registration as a social worker so that they read –

   “(a)	For the period of the three year renewed registration or until this condition is revoked, the Registrant must show any person or body who is considering whether to employ him, or commission his services, as a social worker or social care worker, or has done so, the enhanced criminal record certificate dated 27th April 2007, or any subsequent such certificate which includes the same information.

    (b)	When the Registrant applies to the GSCC for the renewal of his registration at the end of the three years, he must provide the GSCC with evidence that he has met the above condition while it has been in force.”

REASONS

2.	The Appellant is a social worker registered by the General Social Care Council.  He appeals against conditions attached to his registration in the following terms –

    “(a)	For the period of the 3 year renewed registration, the Registrant must show any future social care employer or commissioner of his services, the enhanced Criminal Records Bureau (CRB) disclosure dated 27th April 2007, or any subsequent CRB disclosure which contains the information set out by the Chief Police Officer on that CRB dated 27th April 2007.

    (b)	When the Registrant applies to the GSCC for the renewal of his registration at the end of the next three years, he must provide the GSCC with evidence that he has met the above condition.”

3.	The document dated 27 April 2007 to which the conditions refer is an enhanced criminal record certificate issued under section 113B of the Police Act 1997 when the Appellant applied for employment as a “senior practitioner”.  It shows no convictions or listings but includes the following “Other relevant information disclosed at the Chief Police Officer(s) discretion” –

“The Metropolitan Police Service holds information concerning [the Appellant] that might be relevant to this application.

In March 1996 allegations of assault were made by his sons, aged 8 and 10 years against [the Appellant].  It was alleged he had punched, kicked and bitten them.  They also alleged that he stood on their penises.  One child had kept a record in a diary and their mother had recorded them talking about the allegations.  The children were placed in foster care.

In February 1997 [the Appellant] appeared at Chelmsford Crown Court charged with wilful assault but it was decided to offer no evidence rather than subject the children to giving live evidence.  [The Appellant] agreed to be bound over to keep the peace in the sum of £100 for 12 months.” 

Astonishingly, the Registration Committee of the Respondent appears to have proceeded without having the exact wording of the information before it, due to a photocopying error, but we have been supplied by the Appellant with a copy of a certificate dated 16 July 2008 which we take to have been identical, because the layout of the part not missing from the copy of the earlier certificate is exactly the same, and from which we have therefore taken the above wording.

4.	The procedural background to this appeal is not in dispute.  The information contained in the enhanced criminal record certificate dated 27 April 2007 had not been disclosed in an enhanced criminal record certificate dated 19 June 2003 issued under section 115 of the 1997 Act when the Appellant applied for a position as a locum social worker.  When the Appellant first applied for registration by the Respondent in 2004 he did not disclose to the Respondent that he had been bound over, despite there being a question in the application form asking whether he had been bound over.  He was registered unconditionally.  It was accepted by the Respondent’s Registration Committee that he had forgotten that he had been bound over until his memory was jogged by the enhanced criminal record certificate of 27 April 2007, which prompted him to make a full disclosure to the Respondent when he applied for re-registration on 30 May 2007.  It seems entirely plausible that he should have forgotten about being bound over, given the circumstances in which it happened, and we too accept that he did forget about it.

5.	By way of explanation for being bound over, the Appellant wrote to the Respondent on 5 June 2007 –

“In 1990, I was a single parent of my three young children to 1996.  During this time, my wife coerced my children into making allegations of assault against me.  The outcome of the case was that no evidence was offered and hence no conviction took place.  I was however bound over to keep the peace for 12 months for reasons which were never explained.  The entire evidence was fabricated by my ex-wife.  My children were too young to know what their mother was colluding to.  My ex-wife wanted the sale of my property so she could purchase a home with her lover.  Once the home was sold, my ex-wife placed the children in a foster family for an unknown period of time.”

6.	Contemporaneous documents from the local social services department state that the children were initially placed in foster care while the charges were pending against the Appellant, that his ex-wife subsequently obtained a residence order in respect of the children, that she took the children to live with her in another county and that the Appellant recognised at the time that that was in the children’s best interests.  The Appellant says that his second son in fact remained in care until he was 16, but that may have been with the local authority to whose area the mother had moved.

7.	The Respondent tried to find out more about the court appearance that led to the Appellant being bound over from the Appellant’s former solicitor but without success.  It considered that it had “exhausted the paper trail of accessible evidence with regard to obtaining independent corroboration of the submission made by the applicant, and can neither prove nor disprove his accounts and recollections of events”.  However, it made enquiries of both the agency who had endorsed his 2007 application for registration and the agency who had endorsed his previous application, whose differing replies indicate the difficulty at the heart of this case.  The agency supervisor who had endorsed his 2007 application had done so knowing he had been bound over and having accepted the Appellant’s account of the circumstances giving rise to it.  However, the managing director of that agency told the respondent that, when he had subsequently seen the information on the enhanced criminal record certificate, he had decided that the Appellant was not the “sort of person” he wanted working for the agency, but had reached that conclusion without discussing the matter with the Appellant on the ground that he was not allowed to reveal the information he had received.  He was unclear whether his company stood by the endorsement but said he would encourage the Respondent to “overrule” it.  A consultant at the agency that had endorsed the earlier application for registration said that the Appellant had declared having been bound over to them and they now had the same information as was concerning the Respondent from an enhanced criminal record certificate dated 6 October 2007 and that his agency had decided that, although it was not a barrier to the Appellant being placed, it was serious enough for them to insist that he disclosed it to prospective employers.

8.	The application for registration was referred to the Respondent’s Registration Committee with a recommendation that the application be accepted with a condition in the terms adopted by the Committee as its first condition.  The Committee appears to have added the second condition on its own initiative, in order to be able to enforce the first condition. The recommendation to the Registration Committee described the allegations as “serious” but weight was placed on the age of the binding over (described as an “offence”), an understanding that it was “of low level tariff”, the Appellant’s subsequent “high standing as a social worker” and the fact that “if accurate, his explanation would not raise questions about his suitability for registration”.  The reasoning was expressed as a list of matters of concern and a list of points in favour of the Appellant, followed by -

“Therefore the GSCC concludes, considering all the available information, that on a balance of probabilities it is satisfied that the applicant is of good character and conduct, and meets the criteria to renew his registration.  However, in light of the declared binding over and the circumstances surrounding this, and the applicant’s failure to declare it at the point of submitting his first application for registration, the Council is minded to grant the application subject to the condition detailed below.”

A further reason was that –

“[the condition] ensures that future employers or commissioners of your services are fully informed of your previous offence and the information disclosed at the discretion of the Chief Police Officer on 27 April 2007 and can therefore make informed decisions about your employment, and ensures that people who use services are not put an any unnecessary risk.”

9.	The Registration Committee gave the following reasons for its decision –

    “(a)	The Committee acknowledged the low level of a bind over as a criminal sanction.  It recognised that the Respondent had been bound over in relation to an incident in 1996 and that according to the enhanced CRB disclosure received in April 2007, he had no criminal convictions.  The Committee accepted that, notwithstanding the specific question on the GSCC application form, the Registrant had not remembered that he had been bound over until it was revealed on the enhanced CRB disclosure.

    (b)	The Committee considered that the condition was necessary to ensure that employers or commissioners of the Registrant’s services were made aware of the information on the CRB disclosure.  The Committee noted that [the agency that had endorsed the 2004 application] who had endorsed the application form had specifically told the GSCC caseworker on 28 January 2008 that this was the type of information that should be shared with employers or commissioners prior to placement.  Such notification was necessary in the public interest both to protect the public and ensure public confidence in the profession.”

10.	The notice of decision recorded legal advice given to the Committee, the last paragraph of which was –

“The Committee should balance the Registrant’s interests with the public interest.  The public interest had a number of aspects: public protection, preserving confidence in the profession of social work and maintaining standards of social care.”

11.	The Respondent claims to have been entitled to impose the conditions on registration by virtue of section 58(1) of the Care Standards Act 2000.  The Appellant appeals against the Respondent’s decision under section 68(1) and, by virtue of section 68(3), the tribunal has power to vary the conditions, to direct that they shall cease to have effect or to direct that one or more different conditions shall have effect.  The Appellant asked that the appeal be considered on the basis of the papers.  The Respondent objected but the President of the care standards tribunal acceded to the Appellant’s request.  The functions of the care standards tribunal (technically the tribunal constituted under the Protection of Children Act 1999) have been transferred to the First-tier Tribunal constituted under the Tribunals, Courts and Enforcement Act 2007 and the chairmen and members of the care standards tribunal have become judges and members of the First-tier Tribunal (see the Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833) and, in some cases, also judges and members of the Upper Tribunal.  The consequence of the transfer of functions is that, although the Appellant appealed to the care standards tribunal and it was as such a tribunal that we met to discuss the appeal, this decision is a decision of the First-tier Tribunal.

12.	We have before us helpful written submissions (described as “skeleton arguments”) from the Appellant and from Miss Rupa Sharma, a solicitor employed by the Respondent.

13.	The Appellant’s first points are that the Committee failed to take into account his letter of 18 March 2008, written in response to the Respondent’s recommendation to the Committee and that, by not addressing every point made, the Committee has given the appearance of bias.  Miss Sharma argues that the Committee was not obliged to deal with every point raised by the Appellant, that it gave adequate reasons for its decision and that its acceptance that the Appellant had forgotten about the bind-over showed that it was not biased.  We agree with Miss Sharma that the Registration Committee is not obliged to deal with every point raised by a registrant, but here the Committee appears not to have answered any of the Appellant’s points.  Insofar as some of the points were points of law, we are surprised that there is no record of the legal adviser having addressed them save, perhaps, in the paragraph that we have set out above.  It is possible that that paragraph was intended as an answer to the points of law raised by the Appellant but it makes no specific reference to the Appellant’s contentions and it has to be said that the overall impression conveyed by the notice of decision is that the Appellant’s letter was either overlooked or ignored.  It is good practice to deal explicitly with the salient contentions of a registrant, not least because doing so may head off an appeal.  However, we can cure any defect by dealing ourselves with those issues that are reiterated in this appeal and explaining our approach to them.

14.	The Appellant’s other points are inter-related.  He argues that the Respondent has not carried out a proper risk assessment, balancing the information in the enhanced criminal record certificate against his record as a single parent for six years and the large number of favourable references he has received from employers and commissioners of his services as a social worker.  Such an exercise, he says, is required by the decision of the Court of Appeal in Regina (X) v. Chief Constable of West Midlands Police [2004] EWCA Civ 1068; [2005] 1 W.L.R. 65 and Home Office Circular 5/2005, issued in the light of that decision.  He also argues that the condition imposed by the Respondent infringes his rights under Articles 8 and 10 of the European Convention on Human Rights.  He objects to the conditions imposed on his registration on the ground that the information in the enhanced criminal record certificate is inaccurate, that it will in any event be disclosed to an employer when a further certificate is obtained in connection with any new employment and that he wishes to be able to explain the circumstances in which he was bound over in his own terms.

15.	Miss Sharma also relies upon X, which, she argues, holds that Article 8 of the Convention is not an absolute right.  She agrees that a risk assessment is required but submits that the Respondent was justified in imposing the conditions it did.  She submits that Article 10 is not engaged or that, if it is, it too is not an absolute right.  She submits that the mere fact that obtaining another enhanced criminal record certificate for the purpose of new employment may result in the information being disclosed does not remove the responsibility of the Appellant to disclose the information himself and she further points out that there is no guarantee that future certificates would include the same information.

16.	X was concerned with the responsibility of chief police officers to provide information for inclusion in enhanced criminal record certificates issued under section 115 of the 1997 Act.  Section 115 has been replaced by the new section 113B, inserted into the 1997 Act by section 163 of the Serious Organised Crime and Police Act 2005.  The difference between the two provisions is not significant so far as the present case is concerned.  Section 113B(1) to (6) provides –

“(1) The Secretary of State must issue an enhanced criminal record certificate to any individual who— 
    (a) 	makes an application in the prescribed manner and form, and 
    (b) 	pays in the prescribed manner any prescribed fee. 
(2) The application must— 
    (a)	be countersigned by a registered person, and 
    (b) 	be accompanied by a statement by the registered person that the certificate is required for a prescribed purpose. 
(3) An enhanced criminal record certificate is a certificate which— 
    (a) 	gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with subsection (4), or 
    (b) 	states that there is no such matter or information. 
(4) Before issuing an enhanced criminal record certificate the Secretary of State must request the chief officer of every relevant police force to provide any information which, in the chief officer’s opinion— 
    (a) 	might be relevant for the purpose described in the statement under subsection (2), and 
    (b) 	ought to be included in the certificate. 
(5) The Secretary of State must also request the chief officer of every relevant police force to provide any information which, in the chief officer’s opinion— 
    (a) 	might be relevant for the purpose described in the statement under subsection (2), 
    (b) 	ought not to be included in the certificate, in the interests of the prevention or detection of crime, and 
    (c) 	can, without harming those interests, be disclosed to the registered person. 
(6) The Secretary of State must send to the registered person who countersigned the application— 
    (a) 	a copy of the enhanced criminal record certificate, and 
    (b) 	any information provided in accordance with subsection (5).”

17.	Considering the suitability of a person for employment as a social worker will generally be a “prescribed purpose” (see regulation 5A of the Police Act (Criminal Records) Regulations 2002 (S.I. 2002/233), inserted by regulation 2(b) of the Police Act 1997 (Criminal Records) (Amendment) Regulations 2006 (S.I. 2006/748)) and an employer of social workers will be a “registered person” (see section 120 of the 1997 Act).

18.	It may be observed at the outset that the information in issue in the present case was included in the certificate sent to the Appellant and was not information provided only to the employer under section 113B(6)(b).  Therefore, the agency managing director who formed the view that the Appellant was not the sort of person he wished to place through his agency, without having given the Appellant the opportunity to comment because he believed he was not entitled to discuss the disclosed information with him, was acting unfairly and upon a misunderstanding of the law.

19.	It is common ground before us, as it was common ground between the parties in X, that the provisions of the Police Act 1997 relating to enhanced criminal record certificates are not inconsistent with Article 8 of the Convention.  Article 8 provides –

“(1)	Everyone has the right to respect for his private and family life, his home and his correspondence.
  (2)	There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

20.	In X, the Lord Chief Justice, with whom Mummery and Laws LJJ agreed, referred to Article 8(2) and said at paragraph [20] –

“This country must, through its legislature, be entitled to enable information to be available to prospective employers, where the nature of the employment means that particular care should be taken to ensure that those who are working with the appropriate categories of persons can be relied on to do so, without those in their care coming to harm if they are under the age of 18 or vulnerable adults.”

21.	At paragraph [41], he said –

“It follows also, that as long as the Chief Constable was entitled to form the opinion that the information disclosed might be relevant, then absent any untoward circumstance which is not present here, it is difficult to see that there can be any reason why the information that ‘might be relevant’, ought not to be included in the certificate.  I accept that it is possible that there could be cases where the information should not be included because it is disproportionate to do so; the information might be as to some trifling matter; it may be that the evidence made it so unlikely that the information was correct, that again it would be disproportionate to disclose it.”

22.	Article 10(1) of the Convention guarantees freedom of expression.  We share Ms Sharma’s doubt as to whether it is engaged because the condition imposed by the Respondent does not prohibit the Appellant from adding to the disclosure required by the condition any additional information or comment that he might wish (see X at [18(v)] (per the Lord Chief Justice) and at [54] (per Mummery LJ)).

23.	However, if Article 10 is engaged on the basis that the Appellant’s freedom of expression is restricted because anything he wishes to say must be qualified by the information he is required by the condition also to provide, we agree with Ms Sharma that Article 10(1) adds nothing to the arguments available to the Appellant under Article 8(1) because it is qualified by Article 10(2), which is in terms similar to Article 8(2).  Miss Sharma is right when she submits that neither Article 8 not Article 10 guarantees absolute rights that cannot be restricted in the interests of other members of society and, indeed, the Appellant appears to accept as much because he accepts that a balancing exercise has to be performed.

24.	We do not accept the Appellant’s contention that the Respondent is not in principle entitled to impose a condition that requires a social worker to disclose information that is likely in any event to be disclosed to an employer when a further enhanced criminal record certificate is obtained.  First, most of the information on an enhanced criminal record certificate is information that a person seeking work as a social worker ought to disclose anyway.  However, whether a person is required to declare unproven allegations against him or whether a person is required to declare that he or she has been bound over may be uncertain.  A clear and positive duty of disclosure usually arises only through the duty to answer questions honestly.  It is because employers should always ask for details of convictions that there is a duty to disclose convictions.  Employers do not always phrase their questions so that they require disclosure of a binding over and even less often do they ask for details of acquittals, notwithstanding the view taken in X that it would be good practice for a prospective employer to ask a person applying for a social care position whether he or she had ever been charged with any criminal offence (at [44] and [45] (per the Lord Chief Justice) and at [54] per Mummery LJ).  We respectfully have some reservations about the width of that suggestion of the Court of Appeal, but – or, perhaps, therefore – we can see no reason why the Respondent should not make it clear that a particular social worker should declare particular information whether such a declaration would otherwise be required or not.  The procedure for obtaining enhanced criminal record certificates should be seen primarily as a mechanism for checking whether information that ought to have been disclosed has been wrongfully withheld.  It does not relieve a person of a duty to make full disclosure of relevant facts and can neither create nor limit such a duty.  We would also point out that it is probably preferable from the point of view of a person applying for a job that he or she should make the disclosure and comment on it at the same time, rather than that disclosure should come from the Criminal Records Bureau with the opportunity to comment arising only later.  Secondly, as Ms Sharma submits, it is clear from X that a chief police officer is obliged to exercise a degree of judgment as to the relevance of information held in police records and this was a case where it appears that different judgments have been made on different occasions.  The Respondent is, in principle, entitled to exercise its own judgment and take the view that particular information is always relevant when consideration is being given to the employment of a social worker and should always be declared, irrespective of the view taken by chief police officers from time to time.  We agree with Ms Sharma that section 58(1) of the 2000 Act is in sufficiently broad terms to encompass such a condition being imposed on registration.

25.	However, as the Appellant asserts and Ms Sharma accepts, Article 8 of the Convention imposes the same restraints on the Respondent when imposing a condition under section 58(1) of the 2000 Act as it imposes on a chief police officer when providing information under section 113B(4).  So far as chief police officers are concerned, the implications are discussed in Home Office Circular 5/2005.  Thus, for instance, it is suggested that information should be reasonably current (see paragraph 28 of the circular) and the point is made that information that might be relevant where the applicant is applying for one type of job may not necessarily be relevant if he or she is applying for a different sort of job (see paragraphs 29 to 31 of the circular).  More pertinently, the point is also made that “information must be presented in a meaningful way and its relevance must be made clear”.  Paragraphs 32 and 33 of the circular state –

“32.	The Registered Body or employer must not be left to speculate – to “read between the lines” – which could lead to entirely the wrong result. Similarly, it is unsatisfactory to provide information on the assumption that the employer will be able to talk the matter through with the applicant and thus make up his or her own mind as to relevancy.  In such circumstances, the employer, armed with partial knowledge of the facts, is not in a strong position to judge the truth of whatever response the applicant may make; and the employer may be left only to guess at the truth.

33.		In practice, the need to demonstrate that the information is truly relevant and cogent is a helpful mental discipline.  If a force has difficulty in demonstrating the relevancy of a piece of information to a Registered Body, this may strongly suggest that the information is not relevant and cogent at all.  The following examples may help to illustrate the point:

•	Let us suppose that the applicant, seeking a post working with children, had been subject to an allegation of a serious sexual assault by a woman, but the matter had not been brought before a court.  On first impressions, such an allegation may be relevant.  On closer examination, however, suppose that it had become clear that aspects of the complainant’s allegation were false; and that the woman was known to have falsely made similar complaints against other men; and that, in consequence, the allegation had not been taken to court because the conclusion had been reached that the allegation was false and malicious.  In such a scenario, it would seem difficult to justify the information as relevant in view of the circumstances since, on the facts as presented, the applicant would appear to have been innocent.  But, had it been that the allegation had not been proceeded with because the complainant had been too ill, aged, or infirm to attend court to give evidence, and there had been other corroborative evidence, it may be that the information could be considered cogent and relevant.  But the information would have to be presented in such a way that the Registered Body understands why the information might be relevant. 

•	In another scenario, suppose that there was information about an allegation of indecent assault on a 3-year-old child while the applicant was working with children, but, once again, the matter had not been brought to court.  If it had been the case that any prosecution would have depended upon the evidence of the child, who would not have been accepted as a competent witness, the information might be given as relevant, provided the circumstances were explained to the Registered Body or employer so that it was clear why the case had not been proceeded with but why the information was nevertheless considered relevant. 

•	In a third possible scenario, suppose that the applicant had, a few months previously, voluntarily attended at a police station where he was interviewed and admitted a number of serious sexual offences against children; but that it had been decided to take no further action due to problems of pursuing a successful prosecution on the evidence of an admission alone.  Again, in such a scenario, if it were thought appropriate for the information to be disclosed as relevant, the facts of the matter (eg, as described above) would need to be explained sufficiently for the Registered Body or employer to be able to understand the position and why the information was being given as relevant. 

To be meaningful, sufficient information must be provided as to the facts of the matter.”

26.	This points to one of two important practical distinctions between the position of a chief police officer and the position in which the Respondent stands, at least in the present case.  The former is in possession of the raw material upon which the information included in an enhanced criminal record certificate is based.  It is apparent from the decisions of the Court of Appeal in both X and Regina (L) v. Commissioner of Police for the Metropolis [2007] EWCA Civ 168 that information included as a single paragraph in an enhanced criminal record certificate is likely to be based on very substantial records held by the police (over 600 pages in the latter case), although both those cases were concerned with information about comparatively recent events.  In the present case, the Respondent had none of the raw material and it does not appear to have occurred to either the Appellant or the Respondent to try to obtain any of it.  Much of the material originally in existence must have been revealed to the Appellant in the course of the proceedings that led to him being bound over and so could presumably have been disclosed to him again if it is still in existence and, in any event, it is difficult to see what justification there could be for withholding from an applicant material that is the basis of information provided in an enhanced criminal record certificate save where doing so would be in “the interests of the prevention or detection of crime” (see section 113B(5)(b)) or where there is some other countervailing consideration such as a duty to maintain confidentiality.

27.	In our view, both parties have concentrated too much on the fact that the Appellant was bound over.  That is of little significance in itself.  If a person charged with a criminal offence is told that the prosecution is prepared to offer no evidence provided he or she is prepared to be bound over, it would seldom be sensible to refuse to be bound over unless the prosecution case was extremely weak (although perhaps the existence of enhanced criminal record certificates now does provide a reason for rejecting such an offer).  Contrary to the view apparently taken by the Respondent, consent to being bound over in those circumstances does not involve any admission of, or any finding of, guilt.  At most, the defendant is acknowledging, usually on legal advice, that the prosecution might possibly have succeeded in proving its case.  This is why we consider it plausible that a person may altogether forget having been bound over, which must often appear an unimportant technicality beside the relief at the prosecution being abandoned and, in the present case, the background of family turmoil.

28.	What is much more important in this case is that two of the Appellant’s children have alleged that they were assaulted by the Appellant and that the Crown Prosecution Service apparently regarded the evidence as sufficiently cogent to justify the case being brought to court.  We do not accept that the fact that the prosecution ultimately offered no evidence shows that either the prosecution or the court decided that the allegations were unfounded.  The strength of the case – which will have depended not only on the cogency of the evidence but also on its admissibility – may have been a factor, but the prosecution may also have borne in mind the undesirability of requiring young children to give evidence against their father and the argument that the Appellant had been “punished” because the children had been removed from his immediate care and control.  The significance that the binding over does have is that it suggests that the prosecution – or, less probably, the court – did not accept that there was nothing at all in the allegations.  Indeed, as it was not a tariff penalty imposed on a finding of guilt, it does not indicate, as the Respondent apparently thought, that the allegations were of a particularly minor nature as might have been indicated had he been found guilty but conditionally discharged.  The term “wilful assault” used on the enhanced criminal record certificate suggests that the prosecution was brought under section 1 of the Children and Young Persons Act 1933, offences under which fall within a wide spectrum of seriousness.  On the other hand, the fact that the prosecution offered no evidence suggests that any allegations in respect of which there was a realistic prospect of the case being proved cannot have been of the most serious type.

29.	How, then, should the Respondent have approached this case and how should we approach it?  Miss Sharma has referred to section 117 of the 1997 Act, which entitles an applicant to apply for a new certificate if he or she believes the information contained in a certificate to be inaccurate.  She submits that, if the Appellant does not consider that the information in the enhanced criminal record certificate dated 27 April 2007 should have been included in the certificate or should be disclosed in the future, his remedy lies in an application under section 117. That provision is ambiguous.  Is the “information” the mere fact that an allegation has been made or does it include the information contained in the allegation itself?  Is information “inaccurate” merely because it is incomplete or because a different view is taken as to its relevance on the grounds of, say, its age?  It may be that the fact that an application made under section 117 is made to the Secretary of State rather than to a chief police officer suggests a fairly narrow approach.  However, we are not sure that it matters because there seems no good reason why an applicant should not in any event be entitled to ask a chief police officer to reword, or withdraw, information provided to the Secretary of State for inclusion in a certificate.  It is noteworthy that, in both X and L, the respondent was the chief police officer rather than the Secretary of State.  This may be why the Appellant has submitted that section 117 is irrelevant and that recourse must be had to a court if the wording of a certificate is to be changed.  However, he seems to have overlooked the possibility of persuading a chief police officer to change the wording of information, or withdraw it altogether, without resorting to legal action.

30.	What seems to us to lie behind Ms Sharma’s reliance on section 117 is the practical impossibility of the Respondent going behind the information included in the enhanced criminal record certificate when it did not have enough of the material upon which that information was based.  It is certainly arguable that, in fact, the information is not as full as it needed to be if it was to comply with the approach taken in the circular.

31.	On the other hand, we are firmly of the view that, if the Respondent wishes to impose a condition of disclosure to prospective employers it must, in principle, make its own judgment as to the necessity for the condition and it must satisfy itself that the disclosure will be full enough to be of assistance to employers.  

32.	This points to the second of the two important practical distinctions between the position of a chief police officer and the position of the Respondent.  As the circular emphasises (see paragraph 9), it is not the function of a chief police officer to determine whether or not information disclosed shows that a person is unsuitable for the position he or she is seeking.  Section 113B(4)(a) of the 1997 Act refers to information that might be relevant.  However, it is the function of the Respondent to decide whether people are of sufficiently good character to be social workers.  If the material before the Respondent does not satisfy it that the registrant is not suitable to be a social worker, why should any prospective employer take a different view?

33.	In our judgment, a condition of disclosure to prospective employers should very rarely be imposed.  If the information to be disclosed is such that any responsible employer would refuse to employ the registrant as a social worker, the proper course of action is to refuse registration altogether.  If the information to be disclosed is such that, when taken with other information, no employer could reasonably find the registrant unsuitable for employment as a social worker, a condition of disclosure is very unlikely to be justifiable.  That leaves only cases where there could reasonably be differences of opinion or where a person might be suitable for some types of social work but not others, in which latter case it might be possible for the condition to be imposed in respect only of the relevant types of employment.

34.	In the present case, it has never been suggested that the Appellant is wholly unsuitable for employment as a social worker.  The Respondent’s position in this respect has not, of course, been challenged by the Appellant but it seems to have been based in part on the mistaken view that the alleged offences must have been minor for a bind-over to have been imposed.

35.	The real difficulty in this case arises from the fact that the Appellant denies, and apparently denied at the time, the allegations that were made against him and there is no finding by a court on the issue.  If the allegations were true, they are relevant to the Appellant’s suitability for employment in at least some social care positions.  If the allegations were false, they are not relevant to his suitability for employment.  Should the Respondent have attempted to determine whether the allegations were false or, at least, whether they were likely to be false?

36.	It seems to us that, in the light of paragraph [41] of X and paragraph 33 of the circular, the answer to that question must, in principle, be a qualified “yes” but that the qualification is all-important in the present case.  There are two aspects to the qualification.  The first is that, where a person has been charged with a criminal offence, there is a presumption in favour of disclosure being required which must be displaced if disclosure is not to be required.  The second is that the Respondent must be provided with sufficient evidence to enable it to determine the likelihood of the allegations being true.  In other words, unless the Respondent is provided with sufficient evidence to show that allegations upon which a criminal charge was laid are likely to have been untrue (or trivial), the presumption in favour of disclosure will prevail.  That is because the allegations might be relevant and are therefore within the scope of section 113B(4)(a) of the 1997 Act.

37.	We find it surprising that the Appellant declined the offer of an opportunity to make oral representations to the Registration Committee, which would have enabled the Committee to probe his evidence.  But even if he had appeared before the Committee, we doubt that it would have felt able to find that the allegations made by his children were likely to be untrue without having seen both sides of the case.  This is particularly so since there were two sources of further information that do not appear to have been considered.  One is the police who may well have a considerable amount of further information, although we accept that that is not certain due to the length of time that has elapsed.  The second is the children themselves, with whom the Appellant is still in contact and who are now adults.

38.	On the evidence available to us, we are certainly not persuaded that the allegations made against the Appellant by his children were untrue.  We stress, though, that that does not mean that we believe the allegations to have been true.  Like the Respondent, we are not in a position to determine the issue but it is sufficient that the allegations might have been true.  Nor are we persuaded that the allegations were trivial.  However, we might have taken a different view in respect of both issues had we been able to evaluate the evidence that led to the criminal proceedings and had the Appellant given oral evidence.

39.	Even if the alleged offences were not trivial, the Respondent was entitled to have regard to the length of time that had subsequently elapsed and the Appellant’s subsequent record as a social worker and, bearing in mind our view that it is unlikely that the alleged offences were of the most serious type, we are prepared, without seeking more evidence, to accept the Respondent’s view that the Appellant is of sufficiently good character for registration.

40.	However, on the evidence before us, we consider that the information included in the enhanced criminal record certificate dated 27 April 2007 should always be made available to a prospective employer.  Although time has passed and the Appellant has a good record as a social worker since the allegations of assault were made, the allegations amount to allegations that the Appellant had committed crimes.  Where a person has been convicted of a crime, the conviction must be included in a criminal record certificate issued for the purposes of employment in the social care field even if it is “spent” for the purposes of the Rehabilitation of Offenders Act 1974 (see section 113(3) and (5) of the 1997 Act and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (S.I. 1975/1023, as amended)), because old offences may be relevant.  In our judgment, the information in issue in the present case might similarly still be relevant to consideration of the employment of the Appellant in a social care position, given that the allegations were of assaults against children.  It is material that we know that further evidence could be made available so that an employer might be making a judgment on different material from that before us.

41.	The Appellant has argued that reliance should be placed on his professional integrity, and that making the requirement of disclosure a condition of registration is unnecessary.  We entirely accept that the fact that he did not disclose the information when applying for registration in 2004 is irrelevant because we accept that that was a mere oversight.  However, for the reasons we have explained above, it may not always be clear in the absence of a condition of registration whether there is a duty on a social worker seeking employment to disclose to a prospective employer information of the type in issue in this case.  We also consider it important that the precise form of words used in the enhanced criminal record certificate should be used in the disclosure, although the Appellant is entitled to add anything else he wishes.  It needs to be made clear exactly what is required.  Accordingly, we consider that the Appellant’s registration as a social worker should be made conditional upon him disclosing the information contained in the enhanced criminal record certificate to prospective employers.  The second condition of registration should not be seen as a reflection of any doubt about the Appellant’s integrity but as a standard provision of a type that should always be imposed so that compliance with conditions may be monitored.

42.	The lapse of time, the Appellant’s record as a social worker and the fact that he has been registered as a social worker, albeit conditionally, are all matters to which an employer may be expected to have regard and which should cause an employer not to put more weight on the disclosed information than is justified.  

43.	Nonetheless, we accept the Appellant’s point that, if the information in issue were not to be included in an enhanced criminal record certificate issued in the future, that would raise a question about the propriety of the Respondent maintaining a condition requiring disclosure of that information, provided, of course, that the omission from the enhanced criminal record certificate was deliberate and not the result of a mere oversight on the part of a chief police officer or the Secretary of State.  We have emphasised that our judgments have been made only on the evidence before us and that different judgments might have been made had further evidence, which could have been obtained, been made available to us.

44.	Had there been an oral hearing of this appeal, we would have asked the parties whether they wished there to be an adjournment while further evidence was obtained and, in particular, while the Appellant asked the Metropolitan Police Service to disclose to the Respondent the material upon which the information in the enhanced criminal record certificate was based.  However, we consider that an adjournment is unnecessary because it is implicit in the 2000 Act that the Respondent may impose, vary or remove a condition of registration at any time during a period of registration and we consider that the provision of additional evidence is to be construed as a material change of circumstance for the purpose of rule 21(1) of the General Social Care Council (Registration) Rules 2008.  It is therefore open to the Appellant to obtain, or arrange for the Respondent to obtain, further evidence and then to ask the Respondent to remove the condition of registration.  We consider that the condition should have referred to that possibility and we vary the condition accordingly.  Other changes we have made are merely for technical accuracy or style.

45.	The information in the enhanced criminal record certificate would also be relevant to some other purposes listed in regulation 5A of the 1997 Regulations but, not having heard representations on the issue, we have not thought it proper to widen the condition to cover what are probably only theoretical possibilities, given that it is likely that the information will in any event be included in an enhanced criminal record certificate obtained for that very purpose and reliance can also be placed on the Appellant’s professional judgment in the light of our decision. 

MARK ROWLAND
(Upper Tribunal Judge)
Mrs Lydia Gladwin
Ms Bez Chatfield
10 December 2008