[2010] UKFTT 602 (HESC)

IN THE FIRST TIER TRIBUNAL 

Between			

STEPHEN PHILIP KILDUFF
Appellant

-v-

GENERAL SOCIAL CARE COUNCIL
(2010 1785.SW)
Respondent

 Before :
Miss Helen Clarke, Tribunal Judge
Ms Michele Tynan (Specialist Member) and
Mr Chris Wakefield (Specialist Member)

Heard on November 16th 2010 at the Asylum and Immigration Chamber, Piccadilly, 
Manchester.

Attendance and Representation 
The Appellant attended the hearing and was supported by Mr Andy Boylan, a union representative, who represented the Appellant in his personal capacity.

Miss Natasha Tahta of Counsel represented the Respondent the General Social Care Council (GSCC).

Appeal

1.	This is an Appeal against the decision of the Registration Committee of the GSCC (the Registration Committee), set out in a letter dated March 18th 2010 (the decision letter) refusing the Appellant’s application for inclusion on the GSCC Register.

2.	On June 12th 2010 the Appellant appealed under Section 68 of the Care Standards Act 2000 (the Act) against that decision.

3.	  Under Section 56 of the Act the Respondent is required to maintain a register of social workers and under Section 58 the Respondent is required to grant or refuse registration to individuals who apply to be on the register.

4.	Section 58 (1) of the Act provides that if the GSCC is satisfied that if the applicant is:

“(a)	of good character;
  (B)	is physically and mentally fit to perform the whole or part of the work of persons 
	registered in any part of the register to which his application relates; and
 (c)	satisfies the following conditions,

it shall grant the application, either unconditionally or subject to such conditions as it thinks fit, and in any other case it shall refuse it.

  	The first condition refers to training requirements, the second condition at  Section 58 (3) refers to  “any requirements as to conduct and competence which the Council ( the  GSCC)  may by rules impose.”

5.	Applications for inclusion on the Social Care Register are governed by The General Social Care Council (Registration)  Rules (2008) (“the 2008 Rules”). Rule 4 (3)(a) of the 2008 Rules requires an applicant for registration as a social worker to provide in connection with any application evidence as to his or her:

(i)	good character as it relates to the Applicant’s fitness to practise the work expected of a social care worker (including endorsements from an employer or, where the applicant is self employed or not in employment from a social care employer or other person acceptable to the Council as being fit to provide such endorsements);
(ii)	good conduct;
(iii)	physical and mental fitness to practise in the field of social care work in which the Applicant wishes to work;
(iv)	competence”

6.	Under Rule 14(2)  where the GSCC intends not to grant the application,  it must then  refer the application to the Registration Committee, which is an independent body composed of either three or five members with a lay majority.   The Registration Committee under Rules 20(16) has power to grant or refuse the application for registration or impose conditions on the registration for a specified period.

7.	In accordance with the Act the GSCC provides a Code of Practice (“the Code of Practice”) for its members which it must take into account when making decisions about what social workers must comply with.   The Code of Practice sets out the conduct expected of a social care worker by reference to a number of principals. Rule 5 states “as a social worker you must uphold public trust and confidence in social care services.”   In Part 2 of the Code of Practice it states “as a social care worker you must try to establish and maintain the trust and confidence of service users and carers this includes:

2.1	being honest and trustworthy
2.2	communicating in an appropriate, open, accurate and straightforward way.

8.	Section 68 of the Act provides that an appeal against a  relevant decision of the GSCC in respect of registration lies to the Tribunal. On an appeal against a decision, the Tribunal may confirm the decision or direct that it shall not have effect.
By Section 68(3) of the Act: 
The Tribunal shall also have power on an appeal against decision –
(a)	to vary any condition for the  time being  in  force in respect of the person  to whom the  appeal relates; 
(b)	 to direct that any such condition shall  cease to have  effect;
(c)	to direct that any such condition as it thinks fit shall have effect in respect of that person.

Burden and standard of proof

9.	The burden of proof is on the Appellant. It is the Appellant’s responsibility to demonstrate his competence and good character. Jones v Commission for Social Care Inspection 2004 EWCA C iv 713 and CR –v- General Social Care Council 2006 0626 SW. The standard of proof is the civil standard, namely on the balance of probabilities.

10.	The Tribunal considered the bundle of papers (the Tribunal Bundle) which was prepared in advance of the hearing along with the oral evidence and  submissions made during the hearing.

Background information 

11.	The Appellant is aged 57 and qualified as a social worker when he was awarded a Certificate of Qualification in social work by Ruskin College, Oxford in June 1983 whilst working for Lancashire County Council (LCC). The Appellant continued to work for LCC until June 1992 when he started work as a social worker for Cumbria County Council (CCC) in the children and families team.

12.	In December 1996 as a result of an external investigation by the Lancashire Police it came to the attention of CCC that the Appellant was in possession of adult pornographic videos and some other adult pornography. One of the videos entitled   “Little Girls Blue” (the “Little Girls Blue” video) was set in a residential girls school and included scenes involving sexual acts between young women dressed in school uniform and various men including male teachers.
 Another video (the bestiality video) contained a series of sex scenes involving bestiality between women and various animals. 
  
13	CCC had originally suspended the Appellant in December 1996 following notification of the police investigation about an allegation which was not substantiated and from which the Appellant was subsequently cleared. In February 1997 the police notified the Appellant and CCC that the Appellant had been released from police bail. In October 1997 the Appellant received a further letter from the police advising him that he had been eliminated from the police enquiries.

14. CCC carried out a lengthy investigation into the circumstances surrounding the Appellant’s possession of the video tapes. The  Appellant attended a meeting on February 10th  1997  ( the February meeting)  together  with his  brother Michael Kilduff  and a friend Anap Bamerji, with CCC staff members Jim France and  Karen Rees  during which he was informed that  CCC intended to  carry  out an investigation  to  determine  whether  the  Appellant  could continue to be employed  by  CCC

15.	On January 8th 1998 (  the January meeting )  the Appellant and his  solicitor  Mr  Brailsford  attended  a CCC  Social Services panel meeting which was  convened  to  consider the investigation  report  on the Appellant . Mr  Brailsford   was invited  to  raise  questions on the  contents of  the  report  and the  Appellant  had the  opportunity  to make comments  on  the  report  and make further statements  about  his case. The Appellant during questioning by Mr Brailsford stated that the bestiality video had been given to him by a friend for a colleague’s stag night which the Appellant was arranging at his house.   The “Little Girls Blue” video had been given to him in a village pub where he used to meet up with a group of “respected men who offered him the video” (Tribunal Bundle page 64).
The Appellant when questioned by Mr Brailsford whether he had viewed the videos regularly, replied “no, he had checked them only when he received them and that once or twice he and his friends had viewed them after a night at the pub.”  (Tribunal bundle page 64).

16.	In a letter dated March 4th 1998 (the dismissal letter) the Appellant was informed that he had been dismissed by CCC.The dismissal letter stated that in reaching its conclusions CCC had specifically disregarded the original police investigation which had led to these matters being brought to the attention of CCC. 
 The detailed grounds for this dismissal are set out in the letter from CCC (Tribunal bundle page 78 and 79). 
CCC referred to the terms and conditions of service of a local government officer which were governed at that time by the NJC scheme of conditions and service which stated at paragraph 70 “The Public is entitled to demand of a local government officer conduct of the highest standard and public confidence of his integrity would be shaken were the least suspicion to arise that he could in any way be influenced by improper motives.”

17.	CCC considered that the acceptance of pornographic videos in a public place put the Appellant’s professional integrity within the community at risk of being seriously compromised. The CCC letter also referred to the admission by the Appellant that he had viewed the videos on occasions in the company of friends.   CCC concluded that the Appellant by his action failed to maintain the standards that the public is entitled to expect of a social worker.

18.	The Appellant appealed unsuccessfully against his dismissal through the CCC appeals structure, then through the Employment Tribunal in August 1998 and ultimately to an Employment Appeal Tribunal who dismissed his appeal on March 12th 1999.

19.	The Appellant was unemployed for a period of time and then became a compliance support worker for HMRC in August 1999, and then subsequently transferred to the Ministry of Defence Armed Forces Compensation Service in August 2009.

20.	On March 27th 2009 the Appellant submitted to the GSCC a completed application form for registration as a social worker.   The form did not explicitly require the Appellant to specify that he had been dismissed from CCC  and the  Appellant  did   not  disclose any information on  the  form  about  his   dismissal  from  CCC but  he did refer briefly to  some  driving convictions. The GSCC contacted the Appellant on July, 22nd 2009 requesting further information about the driving offences to which the Appellant responded.

21.	On August 17th 2009 the Appellant contacted the GSCC registration team by telephone and disclosed that some allegations had been made against him the past that he had not declared on the application form because it did not fit into any of the declaration categories, but he thought that it might come to light during the registration process. 

22.	The Appellant then wrote to the GSCC on 6th September 2009 (Tribunal bundle pages 113, 114 and 115) and disclosed details of the original police investigation, the investigation by CCC and his subsequent dismissal by CCC

23.	The GSCC referred the matter to the Registration Committee who after further consideration refused the application for registration in the decision letter. The reasons given for the decision of the Registration Committee were as follows (Tribunal bundle page 32):

(a)	The committee resolved to disregard the issues in relation to the Applicant’s driving convictions and his arrest in connection with allegations of abuse.  The committee only considered the issues arising from the Applicant’s possession of pornographic material.
(b)	The committee was concerned that the Applicant, at the relevant time in 1996 was associating with individuals who had an interest in this type of material and exchanged such material in public.  The committee noted that the possession of the material itself was not illegal but was concerned that, according to the evidence before it, the two videos seized by the police were of a particularly serious nature including bestiality.
(c)	At the relevant time the Applicant was a mature man and his acceptance and possession of material of this nature shows a profound lack of judgment.
(d)	There were anomalies in the explanation put forward by the Applicant.   It was apparent that in addition to the two videos specifically referred to, the Applicant was in possession of other unsuitable material.
(e)	The Applicant showed little insight into the seriousness of his situation at the time indicating that it was his private life and that it had no bearing on his professional life as a social worker.    The committee had in mind specifically paragraph 5.8 of the Codes of Practice for social care workers, namely that “as a social care worker you just uphold public trust and confidence in social care services.   You must not behave in a way, in work or outside of work which would call into question your suitability in working in social care services.”
(f)	In addition, the committee noted that this particular issue had not been disclosed by the Applicant on the initial application.   The committee also noted that the application form itself does not give clear guidance to the applicants.
(g)	For the above reasons the committee is not satisfied that the Applicant is of sufficiently good conduct and character to have his name on the register.

The Appellant’s Reasons for Appeal

24.	The Appellant in his Appeal Application set out his reasons for Appeal (Tribunal bundle page 12, 13) and these can be summarised as follows:

(a)	The Appellant believes that the decision of the GSCC to refuse to register him as a social worker is not proportionate and confuses how his actions in 1996 should be judged today.    “I believe that GSCC has speculated on the gravity and nature of the material due to their over reliance on their reported perspective of those who at the time were reviewing this material as potential circumstantial evidence into the more serious allegation.”
(b)	The Appellant stated that the Registration Committee had applied paragraph 5.8 of the current Code of Practice to circumstances arising in 1996, several years before the GSCC had published the Code of Practice.   The Appellant considered  that the only guidance at that time widely  known to social workers was in the Local Authority conditions of service in relation  to  conduct and   that this was principally directed at the financial integrity of the individual’s private life. The Appellant stated that this demonstrates the Registration Committee’s flawed approach in reaching its decision.
(c)	The Appellant also challenged the finding that the Appellant had been associating with individuals who had an interest in pornographic material and claimed that the registration committee had made assumptions with little evidence.   The Appellant stated that the men concerned had no connections other that they lived in the same village and met from time to time in the same public house.
(d)	The Appellant refuted the reference to anomalies in paragraph D of the decision letter 
(e)	The Appellant challenged paragraph F of the decision letter concerning the application process and the initial failure by the Applicant to disclose the details of the CCC investigation.   The Appellant stated “ I  believe that it was reasonable for me to expect a diligent vetting process of my affairs but five months into my application it became apparent that the issue had not been picked up, at which point I myself raised the incident with them.”
(f)	The Appellant also referred to the fact that the GSCC had failed to contact his last social worker employer despite the fact that the application form had clearly shown that he was unemployed after leaving CCC nor did they take up the references or carry out a CRB check and the Appellant considered this fell short of his expectations of the registration process.

Respondent’s Submissions

25.	Counsel referred to the written response contained in the Tribunal Bundle which formed the basis of the Respondents submissions to the Tribunal. Counsel referred the Tribunal to a number of page references in the tribunal bundle to reinforce the submissions set out in the Respondent’s response.   The submissions can be summarised as follows:

(a)	The Appellant’s defence to his possession of the videos when he was being questioned during the CCC investigation, and his view that the possession of the material in his private life did not compromise his position as a social worker, were a cause for concern.
(b)	The Appellant was a mature man aged 42 at the time of the investigation and working in the child protection unit and his attitude during the investigation showed a lack of judgment by the Appellant.   
(c) 	Counsel submitted that during the January meeting the Appellant had acknowledged to his solicitor that he had continued to view the videos after he had received them with his friends. Counsel submitted that the Appellant’s  decision  to accept pornographic videos  from a group of  men  in a public place, and then subsequently to continue to view the  videos with others, represented poor judgment by the Appellant; and that  he  had acknowledged that he had accepted one or two other videos on occasions.( Tribunal Bundle Page 64) so  it was not a one- off situation .
(d)	Counsel submitted that the GSCC had made a proportionate decision and that in reaching the decision had applied the same high standards expected of a social worker now as would have occurred at the time of decision.   It was submitted that the possession of the two specific videos referred to, caused concern and was inappropriate behaviour for a social worker.   It was acknowledged that there was no code of practice at the date of the CCC investigation but there was a code of ethics at that time which adopted the same underlying principles. 
(e)	The GSCC had made no assumptions about the activities of the group of men but was entitled to conclude from the information provided that the Appellant was associating with individuals who had an interest in this type of material and that exchanges had taken place in public.

(f)	 Counsel submitted that there was no speculation  about  the  content  of  the  two  specific videos which  had been clearly  described  after  being viewed  by  the police  and during the   CCC  investigation .

(g)	Counsel  submitted  that the question of  non-disclosure of information on  the  GSCC  application  form would  not  be argued as  a substantive point before  the Tribunal in view of the acknowledgment by the Registration Committee that the application form  does not  give  clear guidance to the Applicants .
(g)	Counsel submitted that the report prepared by Dawn Langton from the NSPCC, and which had arisen because of the original erroneous allegations made against the Applicant was not relevant to the issue of the Appellant’s possession of the videos.  
(h)	 Counsel acknowledged that GSCC was not aware of any allegations against the Appellant with regard to his working practice as a social worker in over 20 years. 

Counsel submitted that the decision by the Registration Committee should be upheld.

Appellant’s Evidence

26.	As the Appellant had not produced a witness statement prior to the Tribunal hearing but wished to give evidence it was agreed with the concurrence of Counsel for the Respondent that the Appellant should give evidence on oath, and the  Appellant gave the  requisite  affirmation to  tell the truth.. The Appellant’s evidence can be summarised as follows:

27.	The Appellant believed he had been a good social worker, no disciplinary proceedings had been instigated against him and he felt that he had made a positive contribution to families. The Appellant would have liked to have seen the report prepared by Dawn Langton as he felt she would have given a fair report on his behaviour in his cases; he knew her on a professional basis and respected her impartiality.   The disappearance of the report which had not been located by CCC despite a specific request was in his eyes incongruous.

28.	The Appellant described how his job with the HMRC mainly involved investigation of tax evasion and self -assessment cases. In his subsequent job with the Ministry of Defence the Appellant had had contact with service personnel and veterans and that he had been involved with sensitive cases in which he was able to use his social work experience.

29.	The Appellant stated that he thought that the reason why he had been refused registration by the GSCC was because of the matter of the two videos and the way he had handled the discussions and questions at the time of the original investigation. He considered that his response had to be seen in the context in which the original allegations, and subsequent investigation were being undertaken. He was concerned to clarify the nature of the  allegations that had initiated the  police investigation and that  if he was cleared of those he could then look at the videos in the context of being only videos and not as circumstantial evidence towards an allegation that he might be a paedophile.

30.	 The Appellant acknowledged in his oral evidence that he had received the video “Little Girls Blue” in a public house and that although it was not an established group of people, they were friends.    The Appellant stated that he did not know the exact content of the bestiality video until he had seen it, and that he admitted that he had been looking for something slightly shocking for the stag party that he was organising for a colleague at work.

31.	The Appellant stated that at the time the events took place he had believed that what he did in his professional life bore little relation to what he did socially.

32.	Questioned on the perceived “anomaly in the papers as to whether he had watched the videos with others and whether there had been a group viewing. The Appellant stated
 “ I cannot remember a single instance of taking someone back from the pub”.  He had no explanation as to how the discrepancy in his account   had occurred, but neither could he remember confirming the position as correct at any time. The Appellant did admit that the bestiality video had been intended to be viewed communally.

33.	The Appellant under questioning from Mr Boylan stated that he thought that the refusal decision of the GSCC was disproportionate and that it would have been more appropriate to have suspended him or asked him to leave the profession for a period of time but that it was unfair to completely cast him out after many years of good service.  He had not practised for 14 years and as a “sentence” it was substantial.

34.	Under cross examination as to why  the Appellant stated that at no time had he ever engaged in group viewings of adult videos (which was in contrast to his earlier answers at the time of the CCC questioning) he said that he didn’t challenge it but he could not remember ever sitting down with any other men to view the videos. 

Tribunal Findings and Conclusion

35.	The Tribunal has adopted the approach of the Employment Appeal Tribunal and the GSCC Registration Committee and in reaching its decision has wholly  disregarded the allegation of sexual abuse which was made against the Appellant and which triggered the original police investigation. The allegations were subsequently found to be ill founded and a case of mistaken identity.   The Tribunal has also followed the GSCC Committee’s decision to disregard the issues in relation to the Appellant’s driving convictions.

36.	The GSCC considered only the issues arising from the Appellant’s possession of pornographic material and specifically raised concerns that at the relevant time in 1996 the Appellant was associating with other individuals, and that pornographic material had been exchanged in public.

37.	The Appellant who was legally represented at the January meeting during the CCC investigation stated that he had received the “Little Girls Blue” video in a Public House where he sometimes met up with other men from the village where he was living.

38.	In his application to this Tribunal the Appellant submitted that the GSCC Committee had made assumptions about the purpose of the group of men who had met in the pub and stated “The men concerned had no connections beyond living in the same small village, frequenting the same public house and offering not only videos but culinary recipes, best deals locally and all sorts of things from time to time.”   The videos arose at a time when one or two “regulars” described the adult channels on satellite TV that were coming in around that time.   I have never used satellite TV in my home but scarcely think that there is anything extraordinary about such people. The fact that I told the enquiry that I  said I would only accept mainstream adult  material was interpreted by the enquiry as if I had specifically pre-meditated and chosen the videos which was not so and in that they have been aired on public TV these were not extreme.”
   
39.	The Tribunal agrees with the Respondent’s submission that the Appellant was a mature man (aged 42) when he received the videos.   The Appellant in his evidence to the Tribunal acknowledged that at the time of the investigation “I believed that what I did professionally bore no or little relation  to what I did socially.”
    
40.	The Appellant whilst accepting that the original investigation undertaken by CCC had been carried out against a backdrop of much wider serious allegations and therefore their concerns might have been legitimate, criticised the stance taken by the GSCC to the possession of the video tapes and told the Tribunal    “I felt that the way they had used it in their decision – plucking it out of the air and applying it retrospectively.”

41	The Tribunal found the Appellant’s oral evidence at times inconsistent. When challenged under cross- examination about the wisdom of receiving the videos and the possibility that it put him in a compromised position the Appellant initially stated that at the time he didn’t work in the area where he lived but then qualified his statement by saying that “he didn’t believe that he should have done it.” 

 42.	The bestiality video was not obtained in the public house but as a result of a request by the Appellant to work colleagues for something for a stag party he was arranging for a friend.   There was an inconsistency in his answers to the Tribunal because initially when asked whether he was aware of the contents of the tape he stated “no, although I have to confess I was looking for something a bit shocking for the stag party.   I didn’t know the exact content of the video until I saw it then again you never do.”     However, when questioned by the Tribunal about the bestiality video he said he had “put out the word it shouldn’t be too far reaching just to be watched or listened to in the house.” 

43	The Appellant admitted that he had viewed the bestiality video prior to the stag evening and stated that he had been shocked by the content. The Tribunal did not find the Appellant’s account of his retention of the bestiality video as convincing. When asked why he did not return the video to the lender he said that he had only occasionally seen the lender and that it was not appropriate for him to pass it over to him at work.   However this is inconsistent with his earlier evidence to the Tribunal when he stated that he had been working in a close “family environment” in the office which was why he had been able to make the original request for something “a bit shocking”.

44.	The Appellant chose not to destroy or dispose of the video even though he claimed to consider the contents shocking because “I felt that it wasn’t mine to dispose of.” The Appellant told the Tribunal that there had been a period of approximately seven to eight years between the Appellant receipt of the bestiality video and its discovery by the police. The Appellant acknowledged that during that intervening period the Appellant had actually moved house, and so he had at some point consciously packed the video and moved it with the remainder of his possessions. The Tribunal  does not  find  it  credible that if the Appellant  had been shocked or  concerned  by  the  content  of  the  video  that he would  continue  to retain it. The Tribunal did not find plausible the Appellant’s explanation that he had never found the right opportunity to return the video to the lender. 

45 	In  his  written statement  to  the  Registration Committee  dated March 18th 2010  the  Appellant  asked  the Panel to  consider  whether the possession  of  adult / pornographic material in 1996  would have resulted  in  his  removal  from  the  register but  then acknowledges “ I  do believe that  my  possession of the videos and subsequent response were reprehensible and  are  properly a matter of scrutiny by  the  committee”

46.	The Appellant in his evidence to the Tribunal stated that he could not remember a single instance of taking someone back to his house from the pub to view any of the videos, whereas in his original comments during the CCC investigation he had acknowledged that he had viewed the videos once or twice with friends after a night at the pub (Tribunal bundle page 64).Under cross examination the Appellant acknowledged he had had the opportunity to challenge this discrepancy during the Employment Appeal process but he had decided not to and in his response stated “I didn’t believe it was worth wasting time.” The Appellant  admitted in a letter  to  the  GSCC dated September 6th  2009 that his original  responses during  the CCC  investigation   had been  “ legalistic”, yet in his evidence to the Tribunal  his  explanation  for  discrepancy  was “ I am not sure how it  crept  in”. The  Tribunal found the Appellant’s  answers to  be inconsistent and lacking in  credibility.

47.	The Appellant said that he had changed and that his views and approach had changed since the original investigation and he stated “I do expect the decision makers to take into account that people change.” 

48.	In the Appeal response the Appellant stated “I honestly believe that I embrace the principles inherent to the present code of practice (of the GSCC) since before its inception but just needed some re-education in matters concerning dealing with adult themes.”    
When asked by the Tribunal about the nature of his work at HMRC and his trade union work he said that he had been involved with a number of welfare cases in connection with his trade union work.   On closer questioning by the Tribunal it became apparent that the  majority  of  the  Appellant’s work related to disciplinary and tribunal procedural issues rather  than welfare matters where  his  previous  social  work experience would be directly applicable. 

 49. 	The Tribunal found the Appellant’s answers to questions evasive at times.   When asked about the personal references he provided when applying for his job at the HMRC he was hesitant and said he could not  remember who had given the second reference and then after some further thought said “he was pretty sure it was a friend.”

As the Appellant was out of work for a period of six months, and had been dismissed from his previous job, and gone through a lengthy employment tribunal process the Tribunal finds it more than a little surprising that he is unable to recall who gave him a reference. The Appellant told the Tribunal that his dismissal had been widely reported in the press and local TV so it would not have been an easy request to make, bearing in mind the circumstances of his dismissal.

50.	The Appellant’s attitude to the registration process appeared to change during the Appeal process. In his oral evidence he stated “I didn’t anticipate that the application would go through all these stages and end up in the Tribunal.”   This was because he had expected the GSCC to recognise that the original child abuse allegations were fallacious and that with regard to the two videos he had been “fourteen years in the cold and therefore it would have been a greater penalty than the GSCC would have made at the time.   I perceived the GSCC were above taking the judgment of an employer so far in the past.” The  Tribunal  finds the Appellant’s comments significant as it demonstrates  that the Appellant  still  does not  recognise  that  evidence of good character, which is  an essential component for registration as a social worker, is not automatically demonstrated merely by the passage of  time. The fact  that  the Appellant has not worked as a social worker  for  fourteen years  is not  because  of a “penalty “  but because  he  was dismissed by  CCC and as a consequence found it  difficult  to find  work . 

51	The Tribunal finds that the reason why the Appellant chose to inform the GSCC of the police investigation and his dismissal by CCC was because having realised how thoroughly they were investigating his driving offences he was worried that if it was discovered at a later stage after he had been registered, they might revoke his registration As he stated to the Tribunal “I told them that it needed to be cleared, I don’t want to go into a job and then get told get out, its not viable.”

52.	The Appellant was asked how he had changed, and answered that he had had stringent vetting by the Ministry of Defence, but then perhaps understandably admitted that he did not know precisely how they had conducted the vetting.
The Appellant was unable to provide any other information concerning his good character apart from the references he had submitted with his GCSS application for registration.
 
53.	The Appellant queried why the GSCC had failed to contact his referees and appeared to suggest that the onus was not on him to provide evidence of good conduct.   “I didn’t approach anyone else for testimonials, but the eleven years of work with HMRC should be considered by the panel.”

The Tribunal has taken into account that there had been no disciplinary allegations made against him during his period with HMRC.

54.	The onus is on the Appellant to establish his good character and the Registration Committee in reaching its decision quite correctly chose to consider paragraph 5.8 of the Code of Practice: - “as a social care worker you must uphold public trust and confidence in social care services. You must not behave in a way, in work or outside work which would call into question your suitability to work in social care services.”

55.	The Tribunal does not accept the suggestion in the Appellant’s reasons for appeal that it should not apply the Code of Practice because the events which led to the Appellant’s dismissal by CCC occurred prior to the publication of the code.
This Appeal addresses the question of the Appellant’s good character as at the point of registration in 2010. The circumstances of the Appellant’s dismissal by CCC are relevant to the decision to refuse registration by GSCC insofar as they are still pertinent and relevant to the good character of the Appellant now.

55.	The Appellant was aged 42 years old and an experienced social worker when he took the decision to accept pornographic material on video tapes from other male friends he knew in the village in a public house.   The Appellant was working on the children and family team and should have known that such action was inappropriate behaviour and could potentially compromise his professional reputation as a social worker. The Appellant in his evidence to the Tribunal said that he had changed over the years and that he now recognised that his private life should stand up to scrutiny, yet in his written response to the registration committee dated March 18th 2010 (the March 2010 statement) he questions “how reasonable it is for the GSCC to lay on me the onus of proving irrefutably my good conduct/character under these circumstances.”

56.	At paragraph 13 of the March 2010 statement the Appellant states that he has never tried to justify the possession of the videos except during hostile investigations during the CCC enquiry.  This statement seems to be at odds with his subsequent Appeal Response dated September 20th 2010 (Tribunal page 13) in this Tribunal Appeal where he described the exchange of the video in the following terms: 
“The men concerned had no connections beyond living in the  same small village , frequenting the same public house and offering not  only videos, but culinary recipes, “best  deals” locally  and all sorts  of  things from  time to  time “  
The attempt to “normalise” the exchange of pornographic material in a public situation undermines the claim by the Appellant that  he  has  changed and recognises that  to  place himself in  such a situation  shows a lack of  poor judgement  and risked undermining his  professional   reputation.

57.	The Tribunal noted that the second reference submitted by the Appellant in support of his GSCC application for registration was from Anap Bamerji who had worked with the Appellant as a social worker in Preston. Mr Bamerji had attended a CCC meeting with the Appellant in February 1997 during the CCC investigation.   In his reference Mr Bamerji states “I feel that Steve is an extremely competent social worker who has integrity and commitment.” As it is at least 18 years since Mr Bamerji and the Appellant worked together in Preston, and over 12 years since the Appellant worked as a social worker in Cumbria; the Tribunal do not feel able to place much weight on the reference.

58.	The other reference by Mr Stuart Hammond from HMRC verifies the Appellant’s identity, but does not add anything substantive concerning the Appellant’s good character.   A third statement was subsequently submitted from a Steve Lloyd from the Public and Commercial Services Union which sets out that the Appellant had during his work with the union over a period of 10 years provided a competent, sympathetic and realistically honest service to members which  the Tribunal has taken into account. The Appellant in his evidence said that his trade union work had made him consider that he should take up social work again.   On closer questioning by the Tribunal it became apparent that the majority of the work he undertook as a trade union representative  concerned disciplinary issues rather than welfare cases.

59.	The Tribunal considered that the timing of the Appellant’s decision to apply for GSCC registration was pertinent when considering the Appellant’s expressed desire to return to social work. The Appellant made his application to the GSCC on March 27th 2009. In a letter  dated  September 6th 2009 the Appellant notified  the GSCC that on August 24th 2009 he  had changed job  “after a lengthy vetting “ .This is as a result of my being made “presurplus” by  HMRC due to  the  business being  moved to  Preston.”
The Appellant could have  applied  for  registration  from   April 1st 2005 if  he wanted to  work as a social worker, but chose not  to  do so  until  March 2009  when  he would  have become aware  that  his  future job security  might be at  risk. 	

60.	Social workers are expected to uphold public trust and confidence in social care services. The statutory compulsory registration  process  for  social workers  set  out  in  the  Act  is underpinned by  the Code of Practice and the 2008 rules. Under Rule 4 (10) to grant registration the GSCC must be satisfied as to the Applicant’s good character and conduct.

61	 The  Appellant   has admitted  that  he did  on  more  than one occasion accept  pornographic videos from  individual members of a group  of  male friends in a  public house. The  Appellant also admitted that the  bestiality  video  had  been obtained  with the  intention  that  it  would be viewed in the Appellant’s house   in a  group  setting  At  the  time when these events  took place  the Appellant was  a  member  of the  children and families team and should have been aware   that  his  actions  might undermine   his  professional  integrity.

62	At  the  time when the  events  took place the Appellant was a mature  man and a experienced social worker  and his  decision  to  retain  the  bestiality video  shows a  serious lack of  judgment . This was further compounded by his implausible explanations  to the Tribunal as  to  why over a period of at least seven years he did not  return the  video  or  destroy it which  the  Tribunal  did not  accept as  credible.

63 The  GSCC  and the public  have to be able to have  trust  and confidence in registered  social workers  and the  behaviour  of a social worker  outside  of  work is  relevant. The Appellant  was a mature  and an experienced  social worker  in 1996  when the  original  event  took place and the mere  passage  of time  does not expunge  the  poor decisions  and lack of  judgement by  the  Appellant. The Appellant’s evidence to Tribunal   was at times inconsistent, evasive and implausible and this undermines the Appellant’s claim that he has changed and is a different person.  The  GSCC Registration  Committee,  when the Appellant  eventually  disclosed the  information  correctly ,scrutinised the original  events and reached the conclusion  that  the  Appellant  had  not  demonstrated  his  good  character.

64. 	This Tribunal agrees with decision of the Registration Committee and accordingly dismisses this Appeal.

 
Appeal Dismissed

Helen Clarke, Tribunal Judge 
Michele Tynan, Specialist Member 
Chris Wakefield, Specialist Member 

December  6th  2010