Falodi v Health and Care Professions Council [2016] EWHC 328 (Admin)

Background

The Appellant, a social worker, regulated by the Health and Care Professions Council (HCPC) appealed against the decision of the Conduct and Competence Committee Panel (the Panel), of 1 October 2015, that her fitness to practise as a social worker was impaired by reason of her misconduct, as a result of which a striking off order was imposed.

The hearing before the Panel commenced on 28 September 2015 lasting 4 days. The Panel considered the following allegation:

   Whilst registered as a Social Worker:

  1. Between January 2009 and March 2010 you claimed a student council tax exemption for Address A from Southwark Council;
    1. Using a false student certificate from Kings College London.
  2. You held a Council Tenancy with the London Borough of Southwark for Address A from 24 October 2005 to 31 July 2011 and you;
    1. Did not declare that you were the sole owner of Address B from 25 November 2003;
    2. Did not declare that you were the joint owner of Address C from November 2006;
  3. You did not promptly notify the London Borough of Southwark of changes in your personal circumstances at the appropriate time which may have affected your entitlement to Council Tax exemption in that you:
    1. Did not inform the London Borough of Southwark that you were no longer a student, having commenced employment with the London Borough of Croydon in August 2009.
    2. Did not inform the London Borough of Southwark that your brother had moved into Address A in or about January 2009.
  4. On or around 24 May 2011 you submitted a car loan application to Croydon Council for the sum of £12,000 to purchase a car from a company known as Kayz Motors and you;
    1. Did not declare that you had an on-going personal relationship with the owner of Kayz Motors, who was your ex-partner and the father of your children.
  5. Your actions as described at paragraphs 1 to 4 were dishonest.        

The Panel found the allegation proven in its entirety.

The Appeal

The Appellant appealed the decision of the Panel pursuant to Article 38 of the Health and Social Work Professions Order 2001 (the Order). Pursuant to the Civil Procedure Rules (CPR) Practice Direction 52D 19.1(2):

Every appeal to which this paragraph applies must be supported by written evidence and, if the court so orders, oral evidence and will be by way of re-hearing.  

Mrs Justice Lang confirmed that in accordance with CPR Rule 52.11, the appeal court will allow an appeal where the decision of the lower court was -

  1. wrong; or
  2. unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

The grounds of appeal were as follows:

Ground 1 - the Panel's finding that the allegation in paragraph 1 was proved was unsustainable on the evidence before it; 

Ground 2 - the Panel was unjust and unfair in its assessment of the witnesses and the evidence; and

Ground 3 - the striking off order imposed at sanction stage was wrong, unjust and totally disproportionate.

Referring to the decisions in Meadow v General Medical Council [2007] QB 462 and Raschid v General Medical Council [2007] 1 WLR 1460, Mrs Justice Lang confirmed that the court must give appropriate weight to the following factors:

  1. Fitness to Practise Panels are specialist tribunals with an in-depth understanding of what the profession expects of its members;
  2. The Panel had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides;
  3. Questions of fact and the overall value judgment to be made by the Panel, are akin to jury questions to which there may reasonably be different answers; and
  4. The primary purpose of the Panel's decision on sanction is public protection and the preservation and maintenance of public confidence in the profession.

Given the above, the court should accordingly be slow to interfere with the decisions on matters of fact taken by the Panel.

As to the test for dishonesty, Mrs Justice Lang confirmed that the test established in the criminal case of R v Ghosh [1982] QB 1053 was the appropriate test, with modifications to reflect the different context of professional disciplinary proceedings, in which the civil standard of proof applies.  As such, the Panel had to determine:

  1. Whether the Registrant acted dishonestly by the standards of reasonable and honest social workers on the balance of probabilities, and if so;
  2. Whether the Registrant realised that what she was doing was, by those standards, dishonest, on the balance of probabilities.

Mrs Justice Lang dealt with each ground sequentially:

Ground 1                           

The allegation in paragraph 1 related to the Appellant’s use of a falsified student certificate from Kings College London to claim a council tax exemption between January 2009 and March 2010. The Panel received evidence both orally and in documentary form to the effect that having reviewed the student certificate Kings College London was satisfied that it that was not genuine because it had no academic records for the Appellant, the student number on the certificate related to another individual and the member of staff said to have issued it did not work with the nursing school.

The Panel considered the allegation in paragraph 3 which was that the Appellant did not inform Southwark Borough Council that she was no longer a student, nor that her brother had moved into Address A. Address A was a social housing tenancy.  During the course of an anti-fraud internal investigation into the Appellant's application for a car loan (the allegation in paragraph 4), information was obtained about various addresses linked to the Appellant and her claims for exemption from council tax, on the grounds that she was a student.  

The evidence before the Panel was that the Appellant had an interest in three separate properties.

The Panel accepted that ‘there was a copy of the false exemption certificate in the bundle, with email proof from Kings College that it was false and that the Registrant was not known to Kings College as a student at any time. The Registrant in her oral evidence accepted that it was a false certificate, but denied knowledge of it at the time and maintained that she had not used and/or presented it as alleged’.

Having considered the matter, the Panel concluded that there would not have been ‘any benefit from this certificate for anyone other than the Registrant and the Panel had no evidence before it of a malicious motive on the part of another person for the purpose of implicating the Registrant. In addition, the Panel noted the detail on the false certificate, such as the Registrant's date of birth that made it extremely unlikely that another person could have had access to that level of accurate personal information about the Registrant’

The Panel’s findings on the allegation in paragraph 3 were that the ‘Registrant gave her equivocal, changing and unclear answers about where she, her ex-partner and her brother were living at any one time, and, in so doing, the Registrant tailored her answers to the line of questioning being pursued. She had tried to confuse SM-H [a witness] by introducing references to three different properties - addresses A, B and C - and the three individuals - herself, her brother and her ex-partner - and where she said that they resided at various times’.

As to dishonesty in relation to the allegation in paragraph 1, the Panel concluded that ‘any reasonable and honest social worker would have known not to use a false council tax exemption certificate. In the Panel's view, this Particular of Allegation as proved shows the Registrant's use of the false document for her own advantage; namely, to receive the financial benefit of not paying council tax for address A during January 2009 to March 2010, as alleged’.

The Panel further concluded that it was ‘beyond the realms of credibility that a social worker of the Registrant's skill, knowledge and intelligence would not have known of the requirement to be honest and straightforward. For the Registrant actively to take a false document and use it, is, in the Panel's judgement, deceitful behaviour’.

On appeal, the Appellant submitted that the findings on the allegation in paragraph 1 were unsustainable on the evidence for the following reasons:  

  1. There was no evidence before the Panel that she had submitted the student certificate purported to be from Kings College London, and she was not specifically asked at the hearing if she had done so;
  2. The finding of dishonesty was not justified on the basis that she had no motive for making the false claim as she was not living at Address A at the relevant time

The Appellant also submitted that Panel placed undue weight on the evidence of the fraud investigator from Croydon Council, who appeared to have made up his mind about her guilt from the outset.

Mrs Justice Lang stated that having read the transcript and the determination, it was apparent that the Panel had given careful consideration to the detailed oral and documentary evidence before them in making their findings. The Panel had been impressed with the evidence given by the witnesses, which was consistent with their written evidence, and also when tested by questions. In relation to the Appellant, the Panel found her evidence to be inconsistent and misleading, and as such preferred the evidence of the witnesses called by the HCPC, where there was any dispute. The Panel also took into consideration that as a social worker, who specialised in working with families and children, the Appellant would have some understanding of eligibility criteria for social housing and benefits

Having considered all this, Mrs Justice Lang opined that the Panel was entitled to make the findings it did in relation to the allegation in paragraph 1. Further, it was patently obvious that the Panel was aware that the Appellant's evidence was that she knew nothing about the false student certificate and had not submitted it. On this basis, the criticism levelled that the Appellant was not specifically asked whether she submitted the student certificate was rejected by Mrs Justice Lang.

Mrs Justice Lang stated as follows at paragraph 38:

‘In conclusion, I consider that there was sufficient evidence upon which the Panel was entitled to reach its conclusion on the allegation in paragraph 1, and its conclusions were not perverse’.

Ground 2                           

The Appellant submitted that the Panel's findings in relation to the allegation in paragraph 4a were wrong and unjust.  This allegation related to the Appellant’s failure to declare that she had an on-going relationship with the owner of a motor car company when she made a loan application to Croydon Council to purchase a car.

In this regard, the Panel found the Appellant to be dishonest and guilty of misconduct in submitting the car loan application to her employer without declaring that she had an on-going personal relationship with the owner, who was her ex-partner and the father of her children. The Appellant submitted that the only prohibition on purchase in the car loan scheme was a clause which stated: "The Council will not provide a loan for a car which is being bought privately from an individual", and given that she was purchasing the car from a limited company, there was no prohibition.

The Panel accepted that in the investigatory interview conducted regarding this matter on 13 June 2011, the Appellant did not reveal the true nature of her relationship with the owner of the car company until the interview was in its advanced stages. In addition, the Panel found the Appellant’s evidence in relation to this matter when questioned at the hearing was given with exactly the same lack of openness. The Panel concluded after many attempts to extract information from the Appellant in questioning that she had not fully informed any employee at Croydon Council of the close personal relationship between her and the owner of the car company. Further, there was no evidence to corroborate the oral submissions of the Registrant that she had telephoned Croydon Council and was reassured that she could use the services of a relative or friend.

Mrs Justice Lang confirmed that the Panel could not find any reasonable and honest explanation for the Appellant’s conduct other than that of financially benefitting her and her former partner.

Mrs Justice Lang dismissed the second ground of appeal as it was apparent from the Panel's decision that the gravamen of the allegation was that there had been deliberate non-disclosure of a potential conflict of interest which would have benefited the Appellant and her former partner to the tune of £12,000. Further, there was no suggestion that there was an express prohibition to be found in the car loan agreement itself.  Mrs Justice Lang also opined that in her evidence before the Panel, the Appellant ‘persistently displayed a lack of insight into the nature and seriousness of this allegation. In my judgment, on the evidence before it, the Panel was justified in reaching the conclusions which it did. I do not consider that its decision was wrong or unfair’.

Whilst not specifically pleaded as part of the appeal, in relation to the Panel’s findings on impairment, Mrs Justice Lang confirmed that the Panel did not fall into error in finding that dishonest conduct in the past could lead to a finding of current impairment. The Panel concluded, that the Appellant ‘was unable to grasp the principles of professional responsibility’ and further that she had demonstrated no insight or remorse. As such, the finding of current impairment was sound.

Ground 3                           

As to sanction, the Appellant submitted that a striking off order was disproportionate.  She submitted that a lesser sanction would have been appropriate. 

Dismissing this ground swiftly, Mrs Justice Lang stated that the Panel's decision on sanction was lawful.  It had correctly identified the mitigating and aggravating factors in the case and had considered the appropriateness of each sanction in turn, starting with the least restrictive.  Mrs Justice Lang stated that the Panel was correct to conclude that the lesser sanctions would be inadequate, given the Appellant’s lack of insight and the risk of repetition. Mrs Justice Lang went further by stating that on the evidence before her, namely the Grounds of Appeal, the Appellant still did not recognise that she had done anything wrong

Mrs Justice Lang dismissed the appeal on all grounds.

Case commentary

This case confirms, as do previous cases, that the courts will rarely interfere with a Panel’s decision on facts because (i) Fitness to Practise Panels have specialist knowledge and (ii) the Fitness to Practise Panel has had the benefit of hearing from any witnesses, testing their credibility and giving due weight to their demeanour. In this case, the social worker displayed a real lack of insight into the concerns held in relation to her conduct which was of great concern to the Panel given the importance of public confidence in the profession. Registered health and social care professionals occupy a position of trust, one which they have an active duty to maintain. Members of the public will often come into contact with health and social care professionals when they are in a vulnerable or emotional state. As such, they must be able to trust that the professionals they engage with adhere to the standards of conduct expected of them in all walks of life.