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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Falodi v Health and Care Professions Council  EWHC 328 (Admin) (24 February 2016)
Cite as:  EWHC 328 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| TOLULOPE FALODI
|- and -
HEALTH AND CARE PROFESSIONS COUNCIL
Cleon Catsambis (instructed by Bircham Dyson Bell LLP) for the Respondent
Hearing date: 4 February 2016
Crown Copyright ©
Mrs Justice Lang:
"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;
a. 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;
a. Did not declare that you were the sole owner of Address B from 25 November 2003;
b. 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:
a. 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.
b. 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;
a. 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 legal framework
"Hearing of appeals
(1) Every appeal will be limited to a review of the decision of the lower court unless –
(a) a practice direction makes different provision for a particular category of appeal; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
(3) The appeal court will allow an appeal where the decision of the lower court was –
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
(4) The appeal court may draw any inference of fact which it considers justified on the evidence."
"197. On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the section 40 test, it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors. (i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect. (ii) The tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides. (iii) The questions of primary and secondary fact and the overall value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."
"19. ….the fact that a principal purpose of the panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations in Ghosh v General Medical Council  1 WLR 1915, 1923, para 34:"the Board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances."20. These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case."
"14. A useful summary of the relevant approach as outlined in the authorities is to be found in the judgment of Langstaff J in Bhatt v General Medical Council  EWHC 783 (Admin) (in paragraph 9):
"I accept and adopt the approach outlined in these authorities, in particular that although the court will correct errors of fact or approach:
i) it will give appropriate weight to the fact that the panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;
ii) that the tribunal has had the advantage of hearing the evidence from live witnesses;
iii) the court should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body;
iv) findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;
v) but that where what is concerned is a matter of judgment and evaluation of evidence which relates to police practice, or other areas outside the immediate focus of interest and professional experience of the FTPP, the court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be 'wrong' or procedurally unfair."
15 As to the question of impairment of fitness to practise, I note the observations made by Silber J in Cohen v General Medical Council  EWHC 581 (Admin) in paragraph 62 to 65. As Silber J said (in paragraph 62), any approach to the issue of whether a doctor's fitness to practice should be regarded as "impaired" must take into account the need to protect individual patients and the collective need to maintain confidence in the medical profession as well as declaring and upholding proper standards of conduct and behaviour. The public interest here includes, among other things, the protection of patients and the maintenance of public confidence in the profession. As Cranston J said in Cheatle v General Medical Council  EWHC 645 (Admin) (in paragraph 22):
"In circumstances where there is misconduct at a particular time, the issue becomes whether that misconduct, in the context of the doctor's behaviour both before the misconduct and at the present time is such as to mean that his or her fitness to practise is impaired. The doctor's misconduct at a particular time may be so egregious that, looking forward, a panel is persuaded that the doctor is simply not fit to practise medicine without restrictions, or may be at all. On the other hand, the doctor's misconduct may be such that, seen within the context of an otherwise unblemished record, a fitness to practise panel could conclude that, looking forward, his or her fitness to practise is not impaired despite the misconduct."
i) Whether, on the balance of probabilities, the registrant acted dishonestly by the standards of reasonable and honest social workers; and if so;
ii) Whether, on the balance of probabilities, the registrant realised that what she was doing was, by those standards, dishonest.
See Dowson, per Edis J. at  – ; Kirschner v General Dental Council  EWHC 1377, per Mostyn J. at ; Hussain v GMC  EWCA Civ 2246 per Longmore LJ at ; Professional Standards Authority for Health and Social Care v Health and Care Professions Council & David  EWHC 4657 (Admin), per Popplewell J. at .
"27. ….even in cases of dishonesty, a separate assessment of impairment is required, and not every act of dishonesty results in impairment…."
"29. ….the Panel was correct to assess whether or not Dr Uppal's fitness to practise was currently impaired, having regard to her conduct since the misconduct occurred, as well as the nature and extent of her misconduct. Thus, her apology, insight and remediation were all relevant to that assessment, as was the extremely low risk of recurrence."
"Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances." (at 331A);
"…professional misconduct may arise where the conduct is quite removed from the practice of medicine, but is of a sufficiently immoral or outrageous or disgraceful character…. What is important here is not only the fact that disgraceful behaviour remote from the carrying on of a professional practice may constitute serious professional misconduct, but also that the duty of a doctor to himself, if not to his profession, exists outwith the course of his professional practice. One particular concern in such cases of moral turpitude is that the public reputation of the profession may suffer and public confidence in it may be prejudiced." (at 332E-G).
Grounds of appeal
i) Ground 1. The Panel's finding that the allegation in paragraph 1 was proved was untenable and unsustainable on the evidence before it.
ii) Ground 2. The Panel was unjust and unfair in its assessment of the witnesses and the evidence.
iii) Ground 3. The decision to strike off the Appellant was wrong, unjust and totally disproportionate.
i) Address A: a social housing tenancy from Southwark from 24 October 2005 to 31 July 2011;
ii) Address B: a property of which she was the sole owner from 25 November 2003 onwards;
iii) Address C: a property which she jointly owned with her ex-partner, KB, from November 2006.
"7. The Registrant stated to DH in interview that she was living at address C … having informed Southwark Council that she had vacated address A. However, on checking with Southwark Council, it had no record of any contact by the Registrant informing it that she had vacated address A, or transferred it to anyone else, including her brother…."
"8. DH provided a transcript of the Registrant's interview to Southwark Council as he suspected that the Registrant had falsely claimed exemption from council tax as a student when she had been, in fact, employed at Croydon Council."
"9. Southwark Council conducted a counter-fraud investigation and SM-H, an Accredited Fraud Manager oversaw that. She interviewed the Registrant under caution on 30 June 2011. SM-H concluded that the Registrant's answers were unclear, inconsistent and evasive. Further investigations revealed that the Registrant solely owned another property at address B from 19 May 2003 and also jointly owned the address C with her former partner, KB, from 27 October 2006."
"10. After the said interview and all investigations were complete it was clear to SM-H that the Registrant had submitted a counterfeit document to claim council tax exemption for address A and that the Kings College certificate was fraudulent. Further, the Registrant has been worked at Croydon Council since August 2009, she had not informed Southwark Council of this change in her status and had continued claiming the council tax exemption on address A which she was no longer entitled to receive whilst employed in a full time role. The Registrant had also failed to declare to Southwark Council that she was the sole owner of address B … and failed to declare her joint ownership of address C … at the time that she was the holder of a social housing Southwark Council tenancy at address A …"
"11. As a result, Southwark Council sought eviction of the Registrant from address A and this was vacated and returned to their housing stock in July 2011. Criminal prosecution was attempted but discontinued although the Registrant repaid some arrears of her council tax liability to Southwark Council."
"18. The Panel accepted the Registrant's own document from Mr GH, a Southwark Council Revenues Officer, dated 8 February 2013, which demonstrated that on 22 June 2011 the student exemption from council tax for address A had been applied for and granted to the Registrant and that, as she had failed to disclose that she was no longer a student, she owed arrears of that council tax."
"20. 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."
"21. The Panel could not ascertain that there was, or would 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. SM-H had a police officer attached to her, who went to Kings College and checked the situation. It was confirmed by the College to him that the Registrant had never been a student there. The Panel concluded that the Registrant was the only person to have the motive and opportunity to use the false document."
"22. The Panel has determined for these reasons that the Registrant used the false certificate to gain the advantage of a student exemption from Southwark Council's council tax for address A between January 2009 and March 2010, as alleged …"
"36. The Panel concluded that the evidence of SM-H, who interviewed the Registrant under caution, was clear. 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 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.
37. The Registrant continued with this inconsistent, unclear and confusing picture in her oral evidence before the Panel. This resulted, at one stage, with her evidence demonstrating that both her partner and her brother had been living at address A for a period, which was clearly not the Registrant's intention to convey. However, in the Panel's opinion, this was evidence of her attempts to deviate the Panel (and before that, SM-H in the under caution interview) away from the issues being questioned upon. In the Panel's view, this served only to confuse further the Registrant's story and to drastically reduce the credibility of her evidence.
38. Furthermore, the Panel concluded that there was no evidence that, at the relevant time, the Registrant had gone to any "one stop shop" or had by telephone or otherwise informed Southwark Council of her brother moving into address A. Significantly, and according to the requirements of the Council on any assignment to transfer, there was no documentation before the Panel to prove a transfer/assignment of address A from the Registrant to her brother at a prompt time in or about January 2009, or at all.
39. For these reasons, it was clear to the Panel that the Registrant had not promptly notified Southwark Council of her change in circumstances in relation to her employment when she commenced employment in August 2009, or to the fact that her brother had moved into address A in or around January 2009."
"51. The Panel considered 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.
52. In relation to the second element of dishonesty, the Panel concluded that it is 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.
53. Furthermore, for the Registrant to state that, as her brother had taken over living in the address (A), she thought he would be liable for both the rent and council tax, was, again, in the Panel's opinion, disingenuous. The brother had a council tax exemption elsewhere (from Plymouth University) in any event, and the Registrant was, and remained at that time, the named tenant on the documentation for address A.
54. For these reasons, the Panel has determined that the Registrant's actions in this Particular of Allegation were dishonest.
63. The Panel concluded that any normal, reasonable and honest social worker would have realised that employment terminated a council tax student exemption and that a new tenant in social housing constitutes a change of circumstances about which the Council must be informed. This would be especially the situation in a case involving a social worker who was dealing with rehousing and council tax for her clients on a regular basis. The Panel concluded that a reasonable and honest social worker would not have acted as the Registrant did and that, by doing so, the Registrant has actively deceived, by omission, Southwark Council so as to give her the benefit of a further period of council tax exemption.
64. Her own explanations were rejected by the Panel for the reasons stated above in the findings on Particulars of Allegation 3. In addition, the Panel also rejected them as incredible, as a social worker of the Registrant's intelligence, skill and knowledge would have known of the need for the Council to be fully informed and kept up to date on her status and on the property itself.
65. Therefore, the only reasonable and rational explanation for the Registrant's omissions as set out in 3a and 3b was, in the Panel's view, to deceive the Council into giving her the continued benefit of social housing in address A. In the Panel's judgement this was dishonest behaviour on her part."
i) It was factually incorrect to state that the Appellant repaid some of the arrears of council tax to Southwark; in fact, she had been over-charged. The Panel acted unfairly in not allowing the Appellant's representatives to explore inconsistencies in the council tax figures claimed, on the ground that it was not relevant.
ii) The Appellant's evidence was that she had informed Southwark that Address A was no longer suitable for her and her two daughters and she had, in all but name, transferred the tenancy to her brother. Southwark ought to have advised her how to effect a transfer to her brother.
iii) The Appellant submitted that the Panel's statement at paragraph 15 that "[t]he brother had a council tax exemption elsewhere…" was factually incorrect. The Appellant's brother was living at Address A, not elsewhere.
"16. The Panel was impressed with DH and SM-H, taken individually. Each witnesses' oral evidence was consistent with his/her written evidence, and also when tested by questions. The evidence of both witnesses was open and transparent. The Panel's impression of the Registrant was that her written and oral evidence was inconsistent and misleading. Where there was any issue of fact between the HCPC and the Registrant, the Panel preferred the evidence of the HCPC witnesses. The Panel also took into consideration that the Registrant was a social worker who specialised in working with families and children, who were vulnerable and threatened often by violence and subject to poverty. Her work required her to have a knowledge of eligibility criteria for social housing and benefits as she described in her oral evidence. The Panel also noted that the Registrant had knowledge of the longstanding chronic shortage of social housing in the UK, especially in London."
"…as a matter of general law, it is very well-established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses are virtually unassailable": Southall v GMC  EWCA Civ 407, per Leveson LJ at .
"If the challenge is the finding of a primary fact, particularly founded upon an assessment of the credibility of the witnesses, then it will be a hard task to overthrow.": Assicurazioni Generali SpA v Arab Insurance Group  1 WLR 577, per Ward LJ at .
"43. The Panel accepted DH's evidence that the interview he conducted with the Registrant on 13 June 2011 about her application for a Croydon Council car loan was well advanced before she revealed the true nature of her relationship with the owner of the company she had wished to use for the purchase of the car. He gave evidence of the extent of his attempts to extract the information and her closed and diffident attitude in answering him.
44. The Panel found exactly the same lack of openness from her when the Registrant was questioned on this allegation in this hearing. Her explanation that she had rung up the Council to ask if the personal relationship between her and KB, her former partner and the father of her two children, would be a problem and that she was reassured by the council employee at the other end of the telephone, in the Panel's opinion, was a last resort by her in this hearing to attempt to explain the relationship. Her evasive answers as to exactly what she asked the employee when she had telephoned, resulted in the Panel being unable to conclude whether she had, as would be expected, probed the employee, by giving full details of her relationship with the owner of the company, so as to elicit a response from the employee that was based on full information and was accurate to the circumstances of the case.
45. The Panel could only conclude from the many attempts to extract this information from the Registrant in questioning during the hearing that she had not fully informed the employee of the close personal relationship of herself and KB, and had manipulated the situation, whether from the employee's answers or just in her own mind, to fit the circumstances; namely, her need to obtain the car loan for the benefit of her ex-partner and/or herself. It was clear from the Registrant's own evidence on being questioned, that the car loan was an attractive inducement to potential employees, as it provided a low-interest loan. In the Registrant's case it gave business to the company involved which was beneficial to her ex-partner.
46. There was no evidence to corroborate the oral submissions of the Registrant that she had telephoned the Croydon Council employee and was reassured that one could use the services of a relative or friend.
47. Furthermore, there is no proof of the Registrant's assertion that she had mentioned the close relationship at the commencement of the interview with DH. If this had been so, the Panel concluded that the tenor and content of the interview would have taken a very different line. There would have been, for example, reference by DH to the Registrant's earlier admission about her close relationship with KB, but this did not occur. On the contrary, DH's evidence reveals many attempts to extract the information from the Registrant, all of which until later in the interview, did not reveal the information of the personal relationship between the Registrant and KB; for example, the Registrant initially asserted that she has chosen the car dealer from the Yellow Pages. It was only when pressed on the matter later in the interview that she admitted that she had a relationship with him. The Panel considered that this confirmed the Registrant's reticence and lack of openness when dealing with the issue upon being questioned.
67. The Panel concluded that a normal, reasonable and honest social worker would have realised that a close personal relationship with the owner of the company, even if in the past, and which company was to supply a car to the social worker under a Council car loan scheme was contrary to the Council's policy in relation to employees' conflicts of interest and in being meticulous with respect to financial dealings. The honest social worker would not have continued applying for the loan because of the conflict of interest it would have involved.
68. The Panel looked for the Registrant's explanation for her conduct and noted that it had rejected that in its determination in relation to Particulars of Allegation 4a, above.
69. To that end, the Panel could not find any reasonable and honest explanation for her conduct, other than that of financially benefitting her and her former partner. This, had it worked, would have seen the car loan application passed, allowing the Registrant to purchase the car from her ex-partner, KB, capped at £12,000, being close to the amount of the quote from Kayz Motors.
70. The Panel considered that a reasonable and honest social worker would never have allowed herself to apply for such a car loan in this way and in these circumstances. Furthermore, the Panel has determined that the Registrant's explanations did not allow the Panel to conclude that there is a another reasonable and honest explanation for these actions by the Registrant.
71. Thus, for these reasons, the Panel has determined that the Registrant's acts in Particular of Allegation 4 were dishonest."