Robert Derek Atkinson
Allegation (as amended at Final Hearing):
During the course of your employment as a Social Worker with Kent County Council, you:
1. Submitted inaccurate claims for travel expenses, in that you:
a) Claimed travel expenses for a return journey for Client A on 18 February 2013, when no visit had taken place.
b) Claimed travel expenses for a return journey for Client B on 8 May 2013 when no visit had taken place.
c) Claimed travel expenses for a return journey to visit Client C on 13 May 2013 when no assessment and/or visit had taken place.
2. Your actions described in paragraph 1 were dishonest.
3. The matters described in paragraphs 1-2 constitute misconduct.
4. By reason of your misconduct, your fitness to practise is impaired
Application to amend the allegation
1. At the commencement of the hearing Ms Chaker applied to amend Particular 1, to delete the word false, in the stem of Particular 1 and substitute the word inaccurate. This was to remove any potential misapprehension that dishonesty is being pleaded at Particular 1, whereas dishonesty is only pleaded at Particular 2.
2. The Registrant did not object to the amendment.
3. The Panel accepted the advice of the Legal Assessor that the amendment could be permitted if it served to clarify the HCPC’s case and if the application was not opposed. The Panel allowed the application on that basis.
4. The Panel is aware of the result of the Kent County Council (KCC) disciplinary investigation. However the Panel has taken care not to be influenced by it. The Panel accepted the Legal Assessor’s advice that findings made by another panel or another person are not admissible in these proceedings and must not influence this Panel’s decision.
Application to adduce evidence by telephone
5. Ms Chaker on behalf of the HCPC applied to adduce Witness 4’s evidence by telephone. The Panel granted this application, because it was unopposed and it was appropriate due to her ill health to hear the evidence by telephone.
Application for part of the hearing to be heard in private
6. The Panel agreed that any reference to confidential health matters be considered in private for the protection of the private life of the person concerned.
7. The Panel received and accepted advice from the Legal Assessor that hearsay evidence is admissible in these proceedings under Rule 10 (1)(b) and (c) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003. However the Panel has approached the hearsay evidence with caution, because it has not been tested by cross-examination. The Panel has carefully considered what weight to afford to the hearsay evidence put before it.
8. The Registrant was employed by KCC as a specialist case manager in the families and social care directorate, from August 2005. Concerns were raised with his line manager (Witness 2) which resulted in a case audit and discrepancies were identified in respect of his mileage expense claims. The Registrant attended an investigation meeting on 16 December 2013 conducted by Witness 1 and a colleague.
9. The factual particulars concern three travel expense claims sent by the Registrant to KCC in February and May 2013, which the HCPC alleges were inaccurate and dishonest. It is alleged the Registrant did not comply with the KCC Travel Allowances policy when submitting these mileage claim forms. KCC paid mileage expenses to employees for travel to and from their workplace to the destination of a visit. The HCPC relied upon the Registrant’s confirmed understanding of the relevant KCC expenses policy and claim process.
10. The Registrant has admitted particular 1a but denied particulars 1b, 1c and 2. He has also denied misconduct and impairment.
11. The Panel considered sequentially:
1) Whether the factual particulars are proved;
2) If the proved facts amount to misconduct, and if so;
3) Is the Registrant’s fitness to practise currently impaired?
Decision on Facts
12. The burden of proof is upon the HCPC on the civil ‘balance of probabilities’, in relation to findings of fact. Whether any proved facts in this case amount to the statutory ground of misconduct and the issue of current impairment, are not matters which need to be ‘proved’. They are matters of judgement for the Panel.
13. The following witnesses gave oral evidence on behalf of the HCPC. At the time of the allegations, - Witness 1 (Lead Investigating Officer, Area Support Manager at KCC), Witness 2 (the Registrant’s Line Manager), Witness 3 (Registered General Nurse, Home Manager of Miramar Care Home) and Witness 4 (Registered Nursing Home Manager, Iden Manor, by telephone).
14. The Panel found each of the HCPC witnesses to be clear, straightforward and fair in their oral evidence. They had no personal interest in undermining the Registrant, on the contrary they each did their best to assist the Panel with honest evidence.
15. The Panel received testimonials on behalf of the Registrant. In testimonials dated:
• 28 February 2014, SW (Sheltered Housing Scheme Manager) who stated that she had known the Registrant for many years and has: “…found him to be reliable, efficient and thorough in his work”;
• 24 February 2014, JL (Sheltered Scheme Manager), who worked closely with the Registrant for 7 years and described him as “kind and caring” and “an outstanding role model for us all”.
• 24 Feburary 2014, PF stated she had known the Registrant for 7 years and in referring clients to a Day Centre, he: “…has always been very professional, kind and caring with empathy for the clients”.
• 27 February 2014, CS (Scheme Manager) stated the Registrant: “…has always been professional, helpful and shown great empathy and compassion with any resident he has assisted.”
16. In addition, CE (Senior Practice Team Leader) prepared a “work report” in 2012 which recommended the Registrant for “Best Interest” assessor training.
17. The Registrant is a person of previous good character with no other disciplinary concerns or employment or professional issues raised against him. In his oral evidence, he stated that he made honest mistakes, but was not dishonest and KCC had failed to contact witnesses who could have corroborated his account. He complained that insufficient investigations were conducted by KCC into his explanations for the claims made and that the KCC investigation was limited to obtaining evidence to support the allegations. The Registrant did not have access to KCC computer systems or employees or clients to refute the allegations. He stated that in November 2013, he was asked to recollect mileage claims made in February and May 2013.
18. There were outstanding payments due to him from KCC, including other expenses.
19. The Registrant is not currently working. He stated that he used to enjoy his work as a Social Worker despite the challenging nature of the work. He has been a Social Worker for about 20 years and said that he has good social work values. His main focus is to do justice to the role of a Social Worker and the clients. He disputes that he was motivated to make inaccurate expense claims to KCC by grievances against KCC. He took on extra work when he became a Best Interests Assessor (BIA) which he would not have done if he had been an aggrieved employee. He said that he did so because he was a competent and dedicated professional.
20. The Registrant’s good character is relevant to his credibility and the likelihood of him acting dishonestly. His good character has therefore been taken into account by the Panel at each stage, including the fact finding stage. The Panel has made findings in relation to each particular separately.
21. The Panel found the Registrant’s oral evidence to be inconsistent, at times evasive and unconvincing. His account of the three journeys lacked credibility and was not corroborated by independent evidence.
22. The Registrant has admitted particular 1a.
23. This particular concerns a mileage claim for travel to and from Prinsted Care Home (postcode: PO10 8HR). The Registrant’s evidence was that he arranged an out of area review in respect of Client A to take place on 18 February 2013. The Registrant claimed for travel of 150 miles for business reasons, namely: a “client review” on 18 February 2013 in respect of Client A. He was paid expenses by KCC for the journey claimed. However it is accepted the Registrant did not attend Prinsted Care Home on 18 February 2013.
24. The Registrant, in his statement dated 16 January 2014 for the KCC investigation meeting stated that he made an error when he claimed travel expenses from KCC for travelling to Prinsted Care Home on 18 February 2013. He explained that he started the journey but was unable to attend the visit due to heavy traffic and problems with his car, so he turned back. He said that his mother was a passenger in the car and that his intention was to leave her in the car when he visited Client A. He said he contacted the Home to advise that he could not attend the meeting. He produced a signed witness statement from his mother Mrs Atkinson which stated that she was a passenger in a car driven by the Registrant on 18 February 2013, when he set off to visit Client A, who lived in a nursing home.
25. Ms Chaker submitted that a visit to the Home by the Registrant in relation to Client A was not planned for 18 February 2013 and he was not entitled to claim travel expenses for a journey to Prinsted Care Home, as he did not arrive at the stated destination. Ms Chaker submitted that a visit to the Home was never undertaken by the Registrant. There was no scheduled review for Client A in February and there was no independent record of such a review or written record of a review. Ms Chaker further submitted that his account was inconsistent and implausible. His mother has not given evidence and her hearsay statement was not endorsed with a statement of truth and did not appear to be in her own words, in that it contains confidential information concerning the visit which would not be expected to be shared by a Social Worker.
26. In his oral evidence, the Registrant stated that he set off at 7.30am for the meeting scheduled at 1.30pm but with the intention of arriving at 12pm. There were inconsistencies in the account given by the Registrant. He initially stated that, due to heavy traffic and problems with his car, he turned back home at 3.30pm (two hours after the proposed meeting), but later stated he had turned back at around 1pm. The Registrant claimed that he had telephoned the manager of Prinsted Care Home to advise her that he would not be attending, however he later said he had sent an email to the Home.
27. The evidence of Witness 1 and Witness 2 was that no information about the review had been recorded on the KCC electronic system, apart from an entry in the Registrant’s electronic diary. There was no independent evidence of telephone calls, emails or letters in relation to a review of Client A on 18 February 2013. Further, there were no case notes documenting why the review had not taken place. The Panel noted the Registrant claimed that he had arranged the review with the manager of the home on 15 November 2012. However, in the Registrant’s written representations to the HCPC, he enclosed an email dated 16 November 2012, which makes it clear that, at that point, Client A had not been placed at Prinsted Care Home and that there was a possibility that the proposed placement might not go ahead. The Panel considered it highly unlikely that in those circumstances a review date would have been arranged before the client had been placed.
28. Further, the Panel did not accept that the Registrant would take his mother on a long journey in winter and expect her to remain in the car for an hour or so during a client visit. The Panel attached little weight to the hearsay evidence of the Registrant’s mother and the details in her statement written more than 2 years later relating to confidential information about a service user visit.
29. On the balance of probabilities, the Panel finds that the Registrant did not make the journey he has described and that his explanation was not credible. It was made to justify an inaccurate claim.
30. This particular is proved.
31. The Registrant denies particular 1b.
32. The Registrant claimed that he had travelled 40 miles for business reasons to and from Iden Manor Nursing Home, Staplehurst (postcode: TN12 0ER) for “Home review/Ass” on 8 May 2013. In his statement dated 16 January 2014 to KCC, the Registrant said he spoke to a member of staff at Iden Manor and attended on 08 May 2013. He made no mention of any problems with emailing or a scanner. In his response to HCPC dated 18 May 2015, he stated that he visited Client B at his home on 08 May 2013, completed the assessment, returned to the office and asked reception to fax it. The receptionist said the fax was not working so the Registrant drove to Iden Manor as he said it was urgent. In his oral evidence to the Panel, he said that the scanner was not working so he could not scan and email the assessment. He subsequently told the Panel there was no scanner in the office. Witness 1 in his evidence said that the Registrant made no mention of the fax machine not working during his investigation.
33. The Registrant’s oral evidence was that he hand delivered the assessment document for Client B to Iden Manor to an unidentified nurse in uniform. He said there was an urgent need to place Client B in 24 hour care.
34. The evidence of Witness 4 was that the Registrant did not sign the Signing In book on 08 May 2013. She had no knowledge of him or Client C. The evidence of Witness was 4 was clear that the assessment which the Registrant said he had delivered was not received. She stated that she would have remembered if an assessment had been delivered by hand. She told the Panel that she had never received any hand delivered assessment, they were always emailed. Further, Witness 4 confirmed that she was the sole person to process referrals. There was no need for the Registrant to deliver the assessment to a nurse at the door of the Home because there was a receptionist at the entrance who could have received it and provided a receipt for it.
35. The Registrant stated in his oral evidence that the family changed its mind over the weekend of 09-10 May 2013 so it was not necessary to process the referral. However, in cross examination, the Registrant stated that it was the following week he was advised by the family that the accommodation was not suitable. The credibility of this statement was further brought into doubt by the Registrant’s written submissions to the HCPC dated 18 May 2015, enclosing an email from a KCC administrative officer dated 21 May 2013 stating that Client B’s family had phoned and the Home (Iden Manor) that the Registrant was due to ‘look at tomorrow’ was only being considered suitable as temporary accommodation. It appeared that Client B had not yet been placed in any home. This contradicted the Registrant’s account that two weeks earlier the matter had been urgent.
36. The Panel rejected the Registrant’s differing accounts and prefers the evidence of Witness 1 and Witness 4. It concludes there was no journey undertaken by the Registrant to Iden Manor on 08 May 2013 and the claim for the mileage was therefore inaccurate.
37. This particular is proved.
38. The Registrant denies particular 1c.
39. The Registrant made a claim that he travelled 98 miles for business reasons for travel expenses to and from Miramar Nursing Home, Herne Bay (postcode: CT6 6PX) for a “BIA/Assessment” on 13 May 2013. He also made a mileage claim for 9 May 2013 (which appears to relate to a visit on 10 May 2013).
40. The HCPC’s case is that no visit was made to the home on 13 May 2013. Witness 3, Registered General Nurse at Miramar Home, states that the Registrant attended Miramar Care Home on 10 May 2013 but not on 13 May 2013. She checked the visitor’s book and Client C’s case notes and found evidence of a visit by the Registrant to the Home on 10 May, but not on 13 May 2013. She remembered being present on one occasion when the Registrant completed a visit at Miramar Home.
41. The Registrant, in his statement dated 16 January 2014 to KCC, stated ‘I did not attend the Miramar Home, but stayed in the area on this day’. He said that he ‘stayed in Herne Bay and used the Wi-fi at the Premier Inn’ on 13 May 2013.
42. The Registrant stated in his representations to the HCPC dated 18 May 2015, that on 13 May 2013 he ‘completed a visit to the Home on that day’. He stated that he ‘was in Herne Bay in case of needing to visit the Home again’. He made no mention of being at the Premier Inn.
43. In his oral evidence, he stated that he purchased two drinks at the Premier Inn Hotel and was given instructions for the use of their internet connection which he paid for in cash. He admits he did not travel to the Miramar Home on 13 May 2013, but claimed travel expenses for having done so as he was in the are working on the Deprivation Of Liberty Safeguards (DOLS) assessment for Client C.
44. The Registrant stated that he considered that a second visit may be necessary as he said he was inexperienced in this type of assessment. The Panel considered the DOLS office statement regarding this assessment, which states that the Registrant’s ‘decision was made on 10 May as recorded in the document’ and the form submitted on 13 May. The decision did not result in a DOLS authorisation for Client C so the paperwork would have been reduced.
45. The Panel determined that having made the decision on 10 May that there would be no DOLS authorisation, a second visit to the Miramar or the Premier Inn would not have been necessary. Further, completing a confidential assessment in a public area of a hotel was unprofessional and inherently implausible for an experienced Social Worker. There was no independent evidence to corroborate his account that he went to the Premier Inn.
46. The Panel finds that there was no business reason for him to visit the Miramar on 13 May 2013 and that he did not do so. The Panel rejected the Registrant’s explanation that he was at the Premier Inn. The Panel concluded that it was inaccurate to claim for travel expense when no journey was made.
47. This particular is proved.
48. The Registrant denies particular 2.
49. The Panel was advised to adopt a two part test of dishonesty, namely: whether on the balance of probabilities, according to the ordinary standards of reasonable and honest members of the Registrant’s profession, what was done by the Registrant was dishonest; and, if so, on the balance of probabilities, whether the Registrant must have known that what he was doing was dishonest by those standards. Dishonesty requires consciousness that one is transgressing ordinary standards of honest behaviour; therefore the Panel has specifically considered the Registrant’s state of mind, in respect of each of particulars 1a, 1b and 1c.
50. The Panel accepted the advice of the Legal Assessor that it is necessary to consider a two-stage test in respect of the alleged dishonesty.
51. The Registrant made expense claims for travelling to three care homes and admitted that he did not arrive at two of them. He accepted he was only permitted to claim expenses from KCC for a journey made for a business purpose. If expenses were claimed from KCC for a journey which was not made, he agreed in cross examination that would be a dishonest claim. If a journey were made which was not for a business purpose and expenses for that journey were claimed from KCC, he agreed that would also be a dishonest claim.
52. Ms Chaker submitted that his motivation was due to grievances against KCC. Mr Anderson’s explanation was that they were errors of poor judgement and decision making. The Panel has undertaken a detailed assessment of the evidence, when considering whether the allegation of dishonesty is or is not proved in respect of each separate particular. The Panel has considered possible motives for the alleged dishonesty and the Registrant’s explanations for his behaviour, including his ill health from 2012 onwards.
53. The Panel has concluded that claims for journeys which did not take place allowed the Registrant to gain remuneration to which he was not entitled. The Panel finds that by submitting inaccurate claims of travel expenses for journeys to visit Clients A, B and C when in fact no journeys were made, the Panel finds that the Registrant’s actions were dishonest by the standards of reasonable and honest members of the profession. Further, he would have known his conduct was dishonest by those standards, in respect of: 1a, 1b and 1c when he made those claims.
54. This particular is proved.
Decision on Grounds
55. Article 22(1) of the Health and Social Work Professions Order 2001 states:
This article applies where any allegation is made against a registrant to the effect that—
(a) his fitness to practise is impaired by reason of—
56. Misconduct is a word of general effect, involving some serious act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a practitioner in the particular circumstances. The conduct complained of must be serious to amount to misconduct.
57. Under the HCPC standards of conduct, performance and ethics (2012 edition), Registrants are required to comply with the following standards:
10 you must keep accurate records
13 you must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.
58. The Panel finds that the Registrant’s behaviour was in breach of the above standards and concludes that the allegation of misconduct, arising from the proved factual particulars is well founded, in respect of particulars 1a, 1b, 1c and 2. Dishonesty breaches a fundamental tenet of the profession and the Registrant’s behaviour involved multiple acts over a three month period which indicated serious attitudinal failures. The Registrant’s behaviour in respect of each particular was sufficiently serious to amount to misconduct.
Decision on Impairment
59. The Panel considered the HCPC Practice Note on Finding that Fitness to Practice is Impaired. The Registrant has attended the hearing and has given evidence. In determining whether fitness to practise is impaired, Panels must take account of a range of issues which, in essence, comprise two components:
1. The ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and
2. The ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.
60. Rule 9 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 states: Where the Committee has found that the health professional has failed to comply with the standards of conduct, performance and ethics established by the Council under article 21(1)(a) of the Order, the Committee may take that failure into account but such failure shall not be taken of itself to establish that the fitness to practise of the health professional is impaired.
61. The Shipman Report identified the circumstances where impairment might arise as: (a) where a registrant presents a risk to service users (b) has brought the profession into disrepute (c) has breached one of the fundamental tenets of the profession or (d) has acted in a way that her integrity can no longer be relied upon.
62. In respect of the public interest, the following additional guidance was provided in the case of Grant: In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider…whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment was not made.
63. It would be unusual for a finding of dishonesty not to give rise to an impairment of a Registrant’s fitness to practise.
64. The Panel has taken into account the medical evidence and testimonials adduced by the Registrant.
65. The Panel finds that the Registrant has demonstrated a lack of insight into his misconduct by reason of his denials of the factual particulars which have been found proved. As a result of this, there has been no remediation and consequently there is an ongoing risk of repetition. The Panel therefore determined that there is current impairment of his fitness to practise under the personal component.
66. In respect of the public component the finding of dishonesty gives rise to a breach of a fundamental tenet of the profession and is likely to bring the profession into disrepute. Accordingly, there is also a current impairment of his fitness to practise under the public component.
Decision on Sanction
67. The purpose of fitness to practise proceedings is not to punish registrants, but to protect the public. In coming to its decision on sanction the Panel has given careful consideration to all the circumstances of this case and all the evidence which contributed to its findings on the facts, the statutory ground and current impairment. These included the initial case bundle from the HCPC and that submitted by the Registrant, including his performance management review dated 11 December 2012 and a supervision agenda dated 29 September 2011.
68. The Panel considered the submissions made on behalf of both parties and has accepted the advice of the Legal Assessor. In accordance with that advice the Panel has had due regard to the HCPC Indicative Sanctions Policy (ISP) 2015 edition. The Panel has noted that any sanction must be proportionate. It is not intended to be punitive although it may have a punitive effect. It should be no more than is necessary to provide adequate protection to the public and the wider public interest, including protecting the reputation of the profession, maintaining confidence in the regulatory system, and declaring and upholding proper professional standards.
69. The Panel first identified the aggravating and mitigating factors that it should take into account.
70. The aggravating factors are:
• The finding of dishonesty and consequent abuse of trust for financial gain on three occasions which occurred during his employment as a Social Worker.
• The lack of insight and remediation and consequent risk of repetition.
• The Registrant’s impairment under both the personal and public policy components.
• His oral evidence to the Panel was inconsistent and lacked credibility.
• The Registrant produced evidence from his mother and his hand-written diary which the Panel has found to be inaccurate.
• The Registrant was an experienced Social Worker who knew the policies and procedures for expense claims.
• There is no evidence of an apology or remorse.
71. The mitigating factors are:
• The Registrant’s previous good character.
• The testimonials produced stating that the Registrant is a kind and caring person who shows empathy and compassion towards his clients.
• The Registrant had a previously unblemished 20 year career as a Social Worker.
• The expense claims in question were for modest amounts.
• The Registrant has engaged with the HCPC process and says he has accepted the decision of the Panel and admitted particular 1a.
72. In deciding what, if any, sanction to impose under Article 29 of the Health and Social Work Professions Order 2001, the Panel had regard to the principle of proportionality and the need to balance the interests of the public with those of the Registrant.
73. The Panel determined that taking no action and mediation would not be appropriate due to the seriousness of the misconduct found proved.
74. The ISP states that a caution order should be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the Registrant has shown insight, the conduct concerned is out of character, the risk of repetition is not high and thus suspension from practice would be disproportionate.
75. The Panel has decided that a caution order is not an appropriate sanction in this case despite the context of an otherwise unblemished professional career, because there is a risk that the misconduct will be repeated and a caution is also insufficient to uphold the HCPC standards of conduct.
76. The Panel finds a caution order would be contrary to the ISP, due to the Registrant’s dishonest behaviour and there are no exceptional circumstances to justify a departure from the ISP, in this particular case.
77. The ISP also states conditions of practice are unlikely to be suitable in cases involving dishonesty. The Panel concludes that conditions of practice are not an appropriate and proportionate sanction in this case due to the dishonesty.
78. The Panel carefully considered the imposition of a suspension order. The Registrant’s current treatment for a health condition is not likely to remedy the issue of his dishonesty. The Panel finds that there is no evidence of a willingness to change or address the dishonesty found. In light of the aggravating factors including the risk of repetition, the breach of trust and lack of insight and remorse, the Panel determined that a suspension order was neither appropriate nor proportionate.
79. The Panel next considered a striking off order. Striking off is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust, such as dishonesty.
80. Given that the Panel has found that the Registrant has not demonstrated a willingness to remedy the misconduct, in all the circumstances, a striking-off is merited in this case, on personal grounds.
81. The Panel concludes a striking-off order is also merited in this case, on public interest grounds. A suspension order is an insufficient deterrent to other registrants because this was a breach of trust in the workplace. In view of the aggravating features and the nature and extent of the misconduct being repeated acts of dishonesty, a suspension order would not maintain public confidence in the regulatory process and the reputation of the profession.
82. The Panel considers that a striking off order is required to meet the legitimate requirements of a sanction in this case and would be proportionate in all the circumstances of this case.
ORDER: The Registrar is directed to strike the name of Mr Robert Derek Atkinson from the Register on the date this order comes into effect.
The Order imposed today will apply from 16 March 2017 (the Operative Date).
History of Hearings for Robert Derek Atkinson
|Date||Panel||Hearing type||Outcomes / Status|
|13/02/2017||Conduct and Competence Committee||Final Hearing||Struck off|
|28/07/2016||Conduct and Competence Committee||Interim Order Review||No further action|