Social Worker: No Proper Evidential Basis
2 January 2024
A social worker whose fitness to practise was found to be impaired by reason of misconduct in proceedings brought by Social Work England partially succeeded in her appeal to the High Court: Gleeson v Social Work England [2024] EWHC 3 (Admin) HH Judge Stephen Davies, sitting as a Judge of the High Court
The allegations related to G’s personal life during the period of her regulation as a social worker in relation to (i) particular aspects of her alleged conduct during successive relationships with two persons (known as A and B), and (ii) social media postings made by her following her suspension by a local authority after complaints made by person B.
The appeal in respect of those allegations relating to person A was allowed but the appeal relating to person B was dismissed.
The court expressed concern about a general aggressive emotional abuse allegation which covered a period from March to April 2012. The only specific details of G’s behaviour were that she was drunk and aggressive. Reference was also made more generally to her displaying difficult and aggressive behaviour and being a “nasty drunk.”
Although the allegation was just about sufficiently particularised, it was nonetheless one with the risk of possible prejudice to the practitioner caused by delay (here, dealing with allegations dating from over 10 years earlier) and lack of specificity (the lack of any real detail as to what was meant by aggressive behaviour) firmly in mind (see Hutchinson v General Dental Council [2008] EWHC 2896 (Admin)
It followed, in the court’s judgment, that it was not properly open to the panel to make findings above and beyond those which were contained in the statement of case in the absence of amendment. But the court made findings in relation to an incident on 8 February 2015 referred to in the statement of case, not under the section dealing with the aggressive emotional abuse allegation.
It was procedurally unfair and wrong for the panel to have included any finding in relation to this event in support of its finding on the aggressive emotional abuse allegation given that it was not referred to as being relied upon as part of that allegation and given the absence of any details of the content of several calls which were said to be unpleasant or, as to what if anything, was done or said when person A visited G’s house.
Neither did a police report into an incident said to have occurred on 1 October 2012, in terms of what they recorded that they had seen, heard and done, with no other contemporaneous documentary evidence, provide a proper or safe evidential basis for the conclusions drawn by the panel, given also that they could not properly have drawn an adverse conclusion from Person A’s extremely limited and arguably self-serving evidence which they had to treat with some caution.
Looking at the case advanced against person A in context, the most serious allegations were two of assaults which were never even reported to the police. There were then three incidents the subject of police reports, only one of which really provided any support for an allegation that the conduct crossed the line between argumentative conduct, probably drink fuelled, in the context of a mutually volatile relationship, and being aggressive in a way which might impact on the professional reputation of G and/or the profession as a whole. There was finally a wholly unparticularised allegation of being drunk and aggressive. All of this was over a 3 to 4 year period ending 8 years before the matter came before the panel. But for the allegations of physical assault, it was not really the proper subject of a professional misconduct allegation.
The findings in relation to person A were quashed. In the court’s view any fresh panel would be obliged to reach the same conclusion if they adopted the correct approach to the allegations as they were advanced and pursued before the panel and to the contemporaneous documentary evidence, and if they had firmly in mind the warnings in Hutchinson. It would not be right that SWE should be allowed to put the case before a different panel.
In relation to person B, there was no proper basis for the court to interfere with the panel’s primary findings of fact on what was, in the end, a very straightforward factual dispute.
The court was a little troubled by the panel’s approach to sanction when it came to consider the question of suspension or removal. If guidance was followed loyally but inflexibly and without stepping back to look at all of the circumstances at this stage, including, for example, in cases such as this: (a) the positive evidence as to the social worker’s performance of her professional duties; (b) the absence of any cross-over from her personal life to her professional life; and (c) the relatively limited nature of the allegations found proved over an extended period from 2012 to 2019, when compared with the complete absence of any evidence of repetition since 2019, then the absence of sufficient evidence of insight and remediation may mean that, in a case which was otherwise suitable for suspension, the sanction was almost inevitably removal even if, taking everything into account, that would not otherwise be justified.
His Lordship hope that his comments would be of use when the panel came to consider their decision on sanction in this case.