Javor Secretary Of State For Health [2009] UKFTT 2 (HESC) (31 December 2008)
Schedule 5 cases: Protection of Vulnerable Adults list - Inclusion on PoVA list 

MAUREEN JAVOR

-v-

SECRETARY OF STATE FOR HEALTH
[2007] 1202.PVA
[2007] 1203.PC

Before:  Mr. A. Lindqvist
	  Mr. David Cook
	  Ms. Maxine Harris

DECISION

Heard on the 11th and 12th December 2008 at the Care Standards Tribunal, Pocock Street, London.

The appellant appeared in person.
The respondent was represented by Ms Samantha Broadfoot of Counsel instructed by the Treasury Solicitor.

The appeal

1.	Mrs. Javor appeals against the decision of the Secretary of State for Health to confirm the inclusion of her name on the list kept under section 81 of the Care Standards Act 2000 (PoVA list).  She also appeals against the consequent confirmation of the inclusion of her name on the list kept under section 1 of the Protection of Children Act 1999 (PoCA list), and against the direction by the Secretary of State under section 142 of the Education Act 2002 prohibiting her from teaching or working with children (inclusion in  ‘List 99’). The appeals arise under section 86 of the Care Standards Act 2000 in respect of the PoVA list, and section 4 of the Protection of Children Act 1999 in respect of the PoCA list.  Inclusion in List 99 stands or falls with inclusion in the PoCA list and is not the subject of a separate appeal.

2.	The Secretary of State’s decision to confirm Mrs Javor's inclusion on all three lists was communicated to her by a letter dated the 25th of October 2007.

3.	The Tribunal heard the oral evidence of Mrs Tracey Sheedy, Ms Susan Keating and of the appellant, saw a DVD recording and had the benefit of a well prepared bundle of documents.

Procedural matters

4.	A preliminary hearing was directed on the 14th and 26th of March 2008 by the President and on the 23rd of May 2008 by the Deputy President.  It was held on the 6th of October 2008, attended by the appellant in person and by Ms Broadfoot for the respondent.  Directions were given about the exchange of information and documents and of a DVD recording.  As the result of an application subsequently made by the Treasury Solicitor, a restricted reporting order was made on the 10th of November 2008, prohibiting the disclosure or publication of the name or details of the vulnerable adult concerned in the events giving rise to the appeals.

The law

5.	PoVA   Under section 81 of the Care Standards Act 2000, the Secretary of State must keep a list of individuals considered unsuitable to work with vulnerable adults.  The consequences of inclusion in the list are set out in section 89 of the Act which forbids any employer to offer employment in a care position to anyone included in the list and makes it a criminal offence for such a person to apply for work in a care position.  Section 82 of the Act imposes on an employer a duty to refer to the Secretary of State a care worker who has been dismissed for misconduct which harmed or might have harmed a vulnerable adult.  The right of appeal is provided by section 86, which provides that the Tribunal must allow the appeal if it is not satisfied that; 
a) the appellant was guilty of misconduct which harmed or placed at risk of harm a vulnerable adult, and
b) that the appellant is unsuitable to work with vulnerable adults

6.	PoCA  The Secretary of State has a duty under section 1 of the Protection of Children Act 1999 to keep a list of individuals considered unsuitable to work with children. The consequences of inclusion are set out in section 7, and section 2 provides for an employer to refer a dismissed employee if the dismissal is for misconduct which harmed or might have harmed a child.  It also provides (section 2(c)) that the Secretary of State must consider whether an individual included in the PoVA list should also be included in the PoCA list.

Burden of Proof

7.	The wording of section 86 of the Care Standards Act 2000 and the identical (mutatis mutandis) wording of section 4 of the Protection of Children Act 1999 suggest that the burden of proof lies on the respondent to satisfy the Tribunal about the relevant matters, for if the Tribunal is not so satisfied it shall allow the appeal.  The two issues of misconduct and unsuitability are treated by each of the two sections in exactly the same way - the Tribunal shall allow the appeal unless satisfied about them.  In those circumstances, the burden of proof appears to rest throughout on the respondent in respect of both issues.  In Smith v. Secretary of State for Health  [2007] 1174PVA. 1175PCA the Tribunal, citing the approach in Kalchev  [2005] 589PVA and DG [2006] 824 PVA, considered that once misconduct is established by the Secretary of State, it is for the appellant to satisfy the Tribunal as to suitability, rather than for the Secretary of State to satisfy it as to unsuitability.

8.	As a matter of practice and common sense, an appellant guilty of misconduct, who makes no effort to show suitability is likely to be found unsuitable because of his misconduct.  Furthermore, the appellant alone can provide information about his background and antecedents, which is not likely to be known to the Secretary of State.  In that way, there is clearly a practical burden on the appellant so far as unsuitability is concerned.  But as a matter of strict law, it appears to the Tribunal that the statutes put the burden on both issues on the Secretary of State.

9.	In the event, as will be seen, any doubt about where the burden of proof lay did not affect the Tribunal's decision.

Standard of Proof

10.	The standard of proof is the civil standard -- the balance of probability.  It is sometimes said that the more unusual the event, the higher the standard required to prove it, the lion loose in the park being a celebrated example.  But as Baroness Hale pointed out in re B (Children) FC [2008] UKHL 35,  ' there is no logical or necessary connection between seriousness and probability.’ Again, it appears to be a practical matter.  Evidence which might readily satisfy a Tribunal about the occurrence of an everyday routine matter might not suffice if the matter to be proved were extraordinary and unusual.  But that does not imply any different standard.

Misconduct

11.	There is no statutory definition of misconduct, which therefore bears its ordinary and familiar meaning.  ' Harm ' is defined by section 121 of the Care Standards Act 2000 as ' ill treatment to or impairment of the health of a vulnerable adult or child '.

Unsuitability

12.	Unsuitability is not defined by either statute.  A finding of unsuitability may be, but need not be, based on proven misconduct; it may arise from other matters, or from misconduct not involved in the appeal.  It is to be judged by considering all relevant circumstances.

Background

13.	Mrs Javor, who is 47 years old, came to the United Kingdom from Sri Lanka in 1979.  She was married and was not employed for some 15 years, until, in 1994, she began to work as a school dinner lady and later in a hospital restaurant.  Before long, she moved to Chiswick to help in the care of an elderly relative, having had some previous experience of such informal caring.  It was thus that, when she sought work, she gravitated towards the caring profession.

14.	The Tribunal felt it right to keep in mind the nature of the caring profession at what might be termed its grass roots level.  Those who actually carry out the work in residential homes and in their clients’ homes are for the most part remunerated at the minimum wage level or little above it.  Such remuneration attracts mostly the unqualified without high levels of literacy or numeracy.  That is in no way to detract from the devoted and conscientious care provided by the vast majority to a considerable number of service users with various needs.  Many such carers have come to this country as immigrants and do not have English as a first language.  Some speak it better than others, many find it difficult, particularly where written communication is concerned.

15.	 Mrs Javor’s first contact with the caring profession came when she was referred to an agency, then called Quality Care.  Her application form, dated the 14th of January 1997, recites her previous jobs as a school dinner lady and at the hospital.  In February 1997 she was offered and accepted a job as a care worker, visiting service users and giving care in their own homes.  Mrs Javor described briefly her training -- a meeting at Charing Cross Hospital, training at the hospital and in the office.

16.	Mrs Javor said that before she visited a service user she would be given information about what was required.  The service user, or a relative, also sometimes provided information and there was a care plan in the service user’s home.

17.	Mrs Javor worked with vulnerable adults whose care was the responsibility of Hounslow Borough Council and Ealing Borough Council.  Towards the end of 2005 irregularities were found in Mrs Javor’s timesheets and, as it was said not to be the first instance of such irregularities, she was given a Final Written Warning.  Hounslow Borough Council asked that Mrs Javor should not be sent to service users for whom it was responsible, though this request was not formally made known to Mrs. Javor.

18.	In February/March 2006, Mrs Javor first had contact with HC, who was a 94-year-old diabetic, with arthritis and high blood pressure.  She was hard of hearing and was beginning to show symptoms of dementia. Mrs. Javor was never one of HC’s regular carers, but saw her on a number of occasions when one of the regular carers was not available.

19.	HC lived with her son, a former social worker, who took an active interest in his mother's care.  His concerns were such that he had had installed in her room, a video camera so that all visits by care workers were recorded.

20.	On the 15th of June 2006, Mrs Javor, having been contacted at short notice, visited HC with another care worker.  She was late because of dense traffic.  In the course of a hoist and sling transfer from her chair to her bed HC dropped to the floor.  The care workers re-fixed the sling and completed the transfer of HC to her bed.

21.	A day or two later, HC’s son complained to Ealing Social Services that his mother had been dropped to the floor by the two care workers and that they had initially argued in her presence.  The complaint reached Mrs Tracey Sheedy, the Quality Assurance Manager for Supporta Care Ltd (Supporta Care Ltd is in effect the new name of Quality Care).  Ealing Borough Council demanded an immediate investigation.

22.	An Investigation Meeting was held on the 21st of June 2006, attended by Ololade Mabun, Investigating Officer and Mrs Javor and chaired by Lauretta Benson, the Senior Contract Manager.  At the conclusion of that meeting, both care workers were suspended.  In Mrs Javor’s case, the suspension was confirmed by letter on the same day.

23.	On the 27th of July 2006, a Disciplinary Meeting was held.  The allegations against Mrs Javor to be considered were set out in a letter of the 20th of July 2006.  The meeting, like its predecessor Investigation Meeting, was attended by Ololade Mabun and Mrs Javor with Lauretta Benson in the chair.  At the conclusion of the meeting, Mrs Javor was summarily dismissed and the required referral to the Secretary of State was made.

24.	Mrs Javor appealed against her dismissal on the 1st of August and submitted grounds of appeal by letter on the 9th of August, including the fact that she had not seen the DVD recording of the incident.  The appeal hearing was adjourned on the 14th of August to the 21st of August to afford an opportunity to see the DVD evidence.  It was seen at the adjourned hearing, and Mrs Javor's dismissal was confirmed.

25.	On the 25th of October 2006 Mrs Javor appealed to an Employment Tribunal.  The hearing, fixed for the 5th and 6th of July 2007 was adjourned and an agreement was reached to settle the claim before the adjourned hearing in late November.

The DVD evidence

26.	While the DVD was shot at an angle favourable to viewing HC, the view was not completely clear, being interrupted by furniture.  Conversation was hard to hear because of background music, apparently of HC’s choosing.  Nonetheless, it was clear to the Tribunal that there was little, if any, greeting of HC on the care workers’ arrival, the conversation was entirely or almost entirely between the care workers with no involvement of HC. HC certainly landed unintentionally on the floor. It is perhaps a little hard to say that she was dropped, but she certainly slid to the floor in front of her chair.  The care workers then adjusted the sling and transferred her to the bed.  There appeared to be limited, if any, explanation to HC of what the care workers intended to do.  While HC was being transferred back to her chair, the other care worker hit her ankle on a bin or on the base of the hoist and Mrs Javor left HC hanging in the sling briefly while she sympathised with her colleague.  Returned to her chair, HC was asked if her cushion was in a comfortable position, but her wish not to have a blanket was ignored and there was little, if anything, by way of farewell.  It is fair to say that in general the DVD showed an unsympathetic, if not callous, attitude on the part of the care workers.

27.	Ms Broadfoot put the respondent’s case thus.  She cited six instances of misconduct,  a) lack of respect,  b) no proper regard for safety, c) failure to follow reporting procedures,  d) lying about the incident,  e) failing to report an earlier fall by another service user, and f) dishonestly filling in timesheets.  In relation to unsuitability, Ms Broadfoot naturally relied on all of those matters, but suggested that a failure to report honestly and properly and a lack of clarity were features of Mrs Javor's work rather than an isolated occurrence on the 15th of June 2006.

28.	An important part of the background is the training, instruction, supervision and monitoring provided by Supporta Care Ltd for its care workers, in particular that given to Mrs Javor. Ms Keating, who is the company's Training and Development Manager for the south of England, described the three-day course currently offered but said that when Mrs Javor joined the company in 1997 the training offered was less extensive and similar to that she herself had undergone when she joined as a carer in 1993.  It was an interview and induction followed by one day’s training in care values, moving and handling and health and safety.

29.	The company's records indicated that Mrs Javor had attended Induction part two, and moving and handling training on the 7th of March 2002, Disability Awareness training on the 14th of May 2004 and had been to Carers’ Support meetings on the 7th of March and 26th of May 2006.  She also appears to have had Manual Handling refresher training a couple of weeks after the incident involving HC at a time when she was suspended.

30.	The Carers’ Support meetings were said by Mrs Sheedy to be for discussion in an informal atmosphere.  Although minutes were taken, such meetings appeared to involve no specific training. They were more of an opportunity for carers to raise difficulties and to try to resolve problems.

31.	So far as manual handling was concerned, Mrs Javor’s last training before the incident on the 15th of June 2006 had been in March 2002.  In its response to Mrs Javor’s claim in the Employment Tribunal, Supporta Care Ltd said  ' …… the claimant attended a moving and handling course on the 7th of March 2002 during which the claimant would have been routinely informed of the procedures for hoisting service users and the procedure to follow in the event of a fall '.

32.	Bearing in mind that care workers are largely unqualified (as was Mrs Javor), and may have had little or no previous experience of moving and hoisting the incapacitated and disabled (as had Mrs Javor), the Tribunal concluded that a training session, a little over four years previously, did not do enough to equip Mrs Javor to deal properly with HC.

33.	It also appeared to the Tribunal that Supporta Care Ltd's records were not all they should have been.  For example Mrs Javor’s training record shows the manual handling refresher course on the 28th of June 2006; it appears on a printout dated the 29th of July 2008 but not on one dated the 1st of November 2006.  Quite how someone recalled this training at least four months after the event and added it to the record is not clear; more seriously, anyone examining Mrs Javor’s training record might have wrongly concluded that her last manual handling training had been in March 2002.

34.	Three Supervision Forms indicated that Mrs Javor had been appraised on the 13th of November 2003, the 4th of February and the 7th of July 2004.  These forms did not indicate ' on the job ' appraisal.  In one case, the ‘Summary of Supervision’ box is left blank, in the second it says ‘Discussed book writing’ and in the third it says ‘Very good’.  Although, according to Ms Keating, there should normally be a supervision every three months, there are no other supervision forms relating to Mrs Javor.

35.	Amongst the papers in the bundle are three staff appraisal history printouts, which may or may not record something similar to what is on the supervision forms.  They show more frequent events, variously described as ' observation ', ' care supervision ' and in one case ' yearly appraisal ', from the 7th of July 2004 to the 3rd of May 2006.  It is difficult to repose great confidence in that particular record because an ' observation ' on the 12th of October 2004 is recorded on no fewer than six occasions and the name of the supervisor or observer is in many instances blank.  This, Ms Keating explained, is because when an employee leaves the company, his/her name is deleted from such records.

36.	According to Ms Keating, ' observation ' means observation of the appraised carer at work, but Mrs Javor said that no one ever came to watch her while at work with service users.  Whatever it may have comprised, Mrs Javor's last observation on the 3rd of May 2006 by Lauretta Benson attracted the comment ' very good '.

The respondent’s allegations

37.	The DVD evidence left the Tribunal in no doubt that Mrs Javor had treated HC with a lack of respect.  It was much more likely to have been thoughtless rather than deliberate and may have been exacerbated by confusion because of her late arrival.  Although the background music leaves a little room for doubt and may have blotted out some softly spoken words, the conversation between the care workers is clearly audible, and there was hardly any conversation involving HC, who, not 'talked through' the various procedures, was given little idea of what was going to happen.  But although the care workers’ preoccupation with their own difficulties and concerns plainly led to HC being treated more as an object than as a person and to that extent in the Tribunal's view amounted to misconduct, it did not in the Tribunal's view lead to harm or the risk of harm (as defined by the Care Standards Act).  Ill-treatment in that context must mean more than mere lack of respect -- the ordinary meaning of the word ‘harm’ includes some adverse consequence.

38.	Mrs Javor agreed that there had been a mishap in lifting HC from her chair.  There is little practical point in discussing whether HC’s unintended descent to the floor was a fall or a slip.  She did not come down from a great height, nor with any great speed, but because her sling was not properly adjusted it did not support her as it should have.  There was some disagreement about the sling and how it was used; the Tribunal had the benefit at the start of the second day of a demonstration by Ms Keating of the correct way with Ms Broadfoot gallantly volunteering to play the part of the service user. While it was agreed that Mrs Javor and her colleague had not used the sling as Ms Keating demonstrated, it was never clear exactly what they had done.  Mrs Javor suggested that their faulty technique was adopted at the insistence of HC’s son, because his mother did not like the sling round her legs.  Although there may be some mitigation in that and in Mrs Javor’s somewhat exiguous training in handling techniques, the wrong use of the sling and consequent loss of control of HC’s movement was, in the Tribunal's view, misconduct and obviously misconduct which could easily have resulted in harm to HC.  Leaving her suspended from the hoist briefly after Mrs Javor's colleague hurt her ankle was part of the care workers’ lamentable lack of respect but involved no harm or risk of harm.

39.	Ms Broadfoot pointed out that a serious incident such as that shown on the DVD recording must be reported.  If it were not, nothing would be known of it, any consequences would be unexplained, any subsequent action or treatment might be misguided.  The incident should have been reported in a telephone call to the office and it should have been recorded in the daily notes in the communication book.  Mrs Sheedy said that in such circumstances she would have called an ambulance, though the Tribunal could not help wondering whether such a cautious approach by care workers would not result in a very large number of unnecessary ambulance callouts.

40.	The Tribunal took the view that the manner of HC's mishap with the sling was unlikely to have caused any injury and that there was nothing to suggest to the two care workers that she had suffered any injury.  It was reasonable of them not to have called an ambulance.  But the incident did merit a telephone call to the office and certainly should have featured in the record of the visit.  Mrs Javor accepted that there had been no call to the office, though she was inclined to blame her colleague for that.  The record sheet was the subject of another mishap with Supporta Care Ltd's records.  It had been archived along with other records, but could not be retrieved, apparently having been lost.  The only evidence of what might have been in the note of that visit came in an e-mail from Sarah Graham (Supporta’s General Manager) to Mrs Sheedy.  Sarah Graham said that she and Mrs Ackell (of Ealing Social Services) had checked the book during a visit to HC’s home on the 19th of July 2006 and had found an entry reading only ' changed pad and ' followed by two illegible words, which Ms Ackell thought might be ' left comfortable '.  The entry was signed, said Sarah Graham, by both care workers.

41.	Not having seen the entry itself and not having heard from Sarah Graham, the Tribunal had only at best ' double hearsay ' evidence about the entry.  However, Mrs Javor agreed that there was no telephone call to the office for which she had a joint responsibility with her colleague.  If her colleague had undertaken to make the call, Mrs Javor had ample opportunity to remind her and to ensure that she had done so.  In that respect there had been a failure to report.  It may well have been compounded by an inadequate record of the visit, but the Tribunal did not feel that the evidence was compelling enough for that conclusion, although Mrs Javor made something of an admission at the disciplinary hearing on the 27th of July 2006.  The point of reporting such an incident is that others may need to know about it to decide on future action; depriving future carers of necessary information is something which therefore involves a risk of harm to the service user.

42.	Mrs Javor's account of the incident, as reported, had varied considerably.  The minutes of the Investigation Meeting on the 21st of June 2006 have her as saying that the hoist stopped working and, as HC was worried about falling, Mrs Javor reassured her and she was returned to her chair.  HC had not fallen at all.  At the Disciplinary Hearing on the 27th of July 2006 Mrs Javor is recorded as saying that because HC was hanging out of the sling, she was lowered to the floor.  At the appeal hearing on the 14th of August 2006 the hand written note records Mrs Javor as repeating that HC was lowered to the floor, not dropped.  There is no note of the adjourned appeal hearing on the 21st of August 2006, possibly because it was only to view the DVD.  A letter from Simon Burke (Human Resources Manager) about the appeal says that the DVD shows that both Mrs Javor's assertions (that HC was returned to her chair and that she was lowered to the floor) are wrong.

43.	Mrs Javor's written statements are also somewhat at variance.  In her statement to the Employment Tribunal in support of her appeal, Mrs Javor avoids mention of the incident itself, but seeks mitigation in various circumstances.  Her witness statement to that Tribunal describes the incident as though HC slipped from her sling back into her chair, but then says, ' After she was on the floor, we hoisted her back on to the bed slowly …..’.  Mrs. Javor’s statement in support of the appeal says that ' the lady in question slipped from her sling but was not injured '.  Her witness statement of the 21st of October 2008 says that HC's bottom slipped out of the sling, and she slipped down the front of her chair onto the floor.

44.	Ms Broadfoot draws attention to these discrepancies and makes two points.  First, she says that they betray a dishonest attempt to deny the incident and its gravity.  Second, she says that Mrs Javor did not challenge the accuracy of the minutes of the meetings until she was actually in front of the Tribunal.  The second point is technically correct, but much of force is taken from it by two circumstances, one, that although Mrs Javor is said to have signed the minutes, copies signed by her have been lost in the archiving along with other documents, second, that Mrs Javor is not well versed in the techniques of legal pleading and argument and would not have realised the tactical importance of an early denial.

45.	Although the Tribunal cannot know what the copies of the minutes signed by Mrs Javor actually recorded, it is clear that she has given at least two inconsistent accounts of the incident with HC.

46.	Mrs Javor struck the Tribunal as a rather muddled thinker.  Even allowing for her slight disadvantage in the English language, a marked lack of clarity of thought was apparent.  She appeared not really to have grasped the issues in the appeal; she answered questions readily, but submitted nothing at all by way of argument, written or oral.  Indeed at times she needed help to find numbered pages in the bundle of documents.

47.	In those circumstances, the Tribunal would acquit Mrs Javor of any deliberate deception.  She must accept a high degree of incompetence in making and dealing with records, she would struggle with the simplest clerical procedures, certainly in English, probably also in her first language.  Mrs Javor can make a simple note of recent events but would find any more sophisticated documentary process very difficult.  It is such deficiencies that lie behind her erratic assertions, rather than any dishonesty.

48.	The bundle of documents contains a note of an investigation meeting held on the 20th of February 2006.  It did not involve HC, but another service user, MG, also cared for by Mrs Javor.  The meeting appears to have been attended by Ololade Mabun (Investigating Officer) and Mrs Javor only.  In the course of questioning Mrs Javor was asked about a report that MG had suffered an unreported fall.  Mrs Javor answered that MG had ' rolled with the quilt on the floor ', but had got up by herself and said that she was fine.  Mrs Javor therefore did not think the incident serious and did not report it.

49.	As the rather short minutes of that approximately 37 minute meeting were the only evidence on the matter available to the Tribunal, it felt unable to make any finding that there was on that occasion any culpable failure to report the incident or any misconduct.

50.	Towards the end of 2005 when Mrs Javor was caring for service users for whom Hounslow Borough Council was responsible, there was a problem with timesheets.  On the 7th of September 2005, a disciplinary hearing was held with Ololade Mabun (Investigating Officer), Tracey Sheedy and Mrs Javor.  Two allegations were put to Mrs Javor, that on the 4th of July 2005 and 8th of August 2005 she had recorded that she was with two service users at the same time.  Mrs Javor admitted that she had done so by mistake and said that she had recently had meetings with Mrs Sheedy about timesheet procedure.  It was decided to give Mrs Javor a final written warning, and that was done by letter on the same day.

51.	There appears to have been a complaint by Julie Hood of Hounslow Social Services, which provoked investigation by Ololade Mabun.  On the 15th of September 2005 Ololade Mabun sent an e-mail to Julie Hood admitting that a timesheet audit had shown a missed visit by Mrs Javor who was unable to give a satisfactory explanation.  Mrs Javor had been given a final warning ' for another problem ' and had been removed from the Hounslow block contract.

52.	Ms Broadfoot submitted that this was further evidence of dishonesty.  Mrs Javor, like many employees, had to work unsupervised and make an accurate and honest record of her working hours, otherwise the care system could not function. In recording simultaneous visits, she had plainly not fulfilled that duty. 

53.	There was plainly much force in Ms Broadfoot's submission.  But as a form of dishonesty, recording simultaneous visits is, to say the least, naive.  The Tribunal did not see the timesheets on which Mrs Javor had made a record, quite possibly they had met the same archive fate as other important documents, but could not view such obviously wrong recording as deliberate dishonesty.  The Tribunal considered it much more likely to have been a mistake.  That is not to absolve Mrs Javor entirely from blame, it was a careless mistake, and apparently a repeated mistake, but not dishonesty.  The Tribunal felt that that conclusion was reinforced by Mrs Sheedy’s evidence that the system then in use did not properly record changes.  It might be that Mrs Javor’s simultaneous entries represented a change and that one of each pair should have been, but was not, deleted.

54.	Some alarm was caused by Mrs Javor's evidence about the outcome of her complaint to the Employment Tribunal.  She referred to a payment of £150 -- ' a lawyer gave me a cheque and told me not to talk about it '.  However, any suspicion of any impropriety was dispelled by the production of a 'COT3' agreement, apparently negotiated with the help of ACAS.  The agreement included, as such agreements routinely do, a confidentiality clause.

55.	The Tribunal therefore finds misconduct in Mrs Javor’s treating HC without due respect, failing to have proper regard for HC’s safety and failing to report and record the incident on the 15th of June 2006.  Of those three examples of misconduct, the second and third, but not the first, involved a risk of harm to HC.

56.	Ms Broadfoot suggested that the evidence showed that such misconduct, in particular, the deficiencies in Mrs Javor's paperwork, were not isolated incidents, but the result of a constant lack of clarity and honesty.

57.	As already indicated, the Tribunal does not find Mrs Javor to be or have been in any way dishonest, but does find deficiencies in her clerical skills.  However, such deficiencies must be considered against the prevailing standards in the industry and in the light of the circumstances obtaining in Mrs Javor's particular case.

58.	The Tribunal has already referred to pay levels in the domiciliary caring profession and to the level of literacy and numeracy of those it attracts.  Fortunately there are committed and patient carers to be found amongst those whose clerical skills are lacking.  One carer colleague of Mrs Javor’s was said to be practically unable to write in English at all.

59.	There is little reference to any training in the paperwork which care workers have to undertake.  There is some guidance to Mrs Javor in Mrs Sheedy's letter of the 7th  of September 2005, conveying the Final Written Warning. The e-mail to Julie Hood of Hounslow Social Services of the 15th  of September 2005 records Mrs Javor's reporting or recording failings but mentions only disciplinary action and removal from the Hounslow block contract as consequences.  The Tribunal felt that there was room for more to be done by way of training in written recording and reporting.

60.	Judged against the general level in the industry and taking into account the absence of any substantial training in written work, Mrs Javor’s clerical deficiencies are less grave.  On the positive side, she has been a care worker for some nine years, with, on the whole, a good record of caring.  The Tribunal noted that the outcome of an observation of Mrs Javor on the 3rd of May 2006, only six weeks before the incident with HC, by Lauretta Benson was recorded as ' very good '.

61.	In the Tribunal's view, the misconduct which caused no harm or risk of harm to HC, the lack of respect with which she was treated, was a matter of considerable gravity. Knowing that their work was being recorded, Mrs Javor and her colleague might have been expected, as it were, to be on their best behaviour.  It could fairly be said that the incident was therefore likely to represent at least their normal behaviour.

62.	On the other hand, there were unusual circumstances on the 15th of June 2006.  Mrs Javor had received the booking at short notice and was delayed by heavy traffic before an international football match.  She arrived at HC’s home flustered and apologetic and maybe a little too anxious to get the job done.  In the light of all the evidence and the impression formed by the Tribunal of Mrs Javor during her brief time in the witness box, the Tribunal finds that her conduct on the 15th of June 2006 fell below her usually higher standards.  She referred in her evidence to ' mistakes’ on that day.

63.	Taking all the evidence into consideration, the Tribunal is satisfied that Mrs Javor is suitable to work with vulnerable adults.  If the burden of proof on that issue is transferred to Mrs Javor, she has discharged it.  If, as the Tribunal prefers to think, the burden remains with the Secretary of State, the evidence, a fortiori, fails to satisfy the Tribunal that Mrs Javor is unsuitable to work with vulnerable adults.

64.	Accordingly, the Tribunal unanimously allows Mrs Javor's appeal and directs that the Secretary of State remove her name from the lists kept under section 81 of the Care Standards Act 2000 (the PoVA list) and under section 1 of the Protection of Children Act 1999 (the PoCA list).  The direction given under section 142 of the Education Act 2002 in respect of Mrs Javor (' List 99 ') is consequently revoked.

65.	The Tribunal directs that the restricted reporting order made by the President on the 10th of November 2008 continue in force.

Judge Andrew Lindqvist
David Cook
Maxine Harris
Date: 31st December 2008