Mr James David Holland

: Social worker

: SW26964

: Final Hearing

Date and Time of hearing:10:00 17/07/2017 End: 17:00 20/07/2017

: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Struck off

Allegation

During the course of your employment as a Social Worker with East Riding of Yorkshire Council, you:

 

1. Made inaccurate mileage claims for dates when you did not travel for work purposes, in that you:

 

a) claimed mileage for 03 November 2014 when you were on sick leave;

b) claimed mileage for 23 December 2014 when you were on annual leave;

c) claimed mileage for 29 September 2015 when you were on sick leave.

 

2. Made inaccurate mileage claims, in that you:

 

a) over claimed mileage expenses for 15 journeys made in October 2014;

b) over claimed mileage expenses for 15 journeys made in March 2015;

c) over claimed mileage expenses for 20 journeys made in August 2015.

 

3. On 23 December 2015, you collected charitable gifts on behalf of the Council without authorisation to do so, in that you:

 

a) were on sick leave on that date;

b) collected about 207 gifts and did not sign for 50 additional gifts collected;

c) did not notify the Council that you had collected the gifts and did not deliver them until you were requested to do so.

 

4. Practised as a Social Worker without HCPC registration between:

 

a) 14 March 2014 and 31 March 2014;

b) 5 November 2015 and 17 December 2015.

 

5. The matters set out at paragraphs 1-3 above were dishonest.

 

6. The matters described at paragraph 1 - 5 constitute misconduct.

 

7. By reason of misconduct your fitness to practise is impaired.

Finding

Preliminary matters

Service


1. The Panel found that there had been good service of the notice of the hearing, in accordance with rule 3 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 by letter dated 20 April 2017.


Proceeding in absence


2. The Panel next considered whether to proceed with the Hearing in the absence of the Registrant. The Panel accepted the advice of the Legal Assessor and followed the guidance in the HCPTS Practice Note entitled Proceeding in the Absence of the Registrant. The Registrant had not communicated with the HCPC in any way in connection with the hearing. He had not requested an adjournment and there was nothing before the Panel to suggest that he would attend if the Hearing was adjourned. There were three witnesses in attendance. The Panel was satisfied that the Registrant had waived his right to attend this hearing. It was in the public interest that the hearing should proceed and no injustice or prejudice would be caused to the Registrant if the matter proceeded. The Panel therefore decided to proceed with the Hearing in the Registrant’s absence.


Amendment application

3. The HCPC made an application to amend the particulars of the allegation. The Panel considered whether there was any unfairness or prejudice to the Registrant by reason of the proposed amendments, which served to clarify the HCPC’s case in accordance with the evidence. There was no prejudice to the Registrant from this application and he had not raised any objection following notification of the proposed amendments, on 26 January 2017. The Panel granted the amendment application in order to clarify the HCPC’s case, save that the Panel decided to vary the proposed amendment of the date in particular 4b, from “24 November” to “23 November” (to reflect the HCPC’s documentary evidence provided by the Registrant’s then-employer).


Health matters


4. The Panel decided that it was necessary to hold this hearing partly in private, so as to protect the Registrant’s private life.


Background


5. Mr James David Holland (the Registrant) was employed by East Riding of Yorkshire Council (the Council) from September 2011 to March 2016, initially as a Family Support Worker and from 2014 as a Social Worker within the South Holderness Safeguarding Team. NS was his line manager.

Mileage claims


6. Following a financial audit that was undertaken by the Council in 2015, concerns were raised that the Registrant had made mileage claims for dates when he was on sick leave or annual leave.  In addition, there were discrepancies in the number of miles claimed for a number of journeys.  The Registrant was entitled to be reimbursed for travel costs incurred whilst carrying out Council duties (excluding travel to and from his place of work), provided that the shortest route was used. He submitted monthly travel expense claims which required authorisation from his line manager. On 11 November 2015, AW was appointed by the Council to investigate these matters. AW interviewed the Registrant on 21 December 2015. At this interview, the Registrant stated that the mileage claims he had made were accurate.


Charitable gifts


7. The Council was a beneficiary of a charitable scheme set up by a local radio station. The scheme was set up to help less fortunate children. Members of the public would donate gifts to the scheme, which would be available to social workers to distribute to children under their care. Social workers who deemed their service users to be in need of the donated gifts would complete request forms detailing how many gifts were required. These would then be approved by their line managers. The social workers would then collect the gifts from the radio station, sign the necessary release paperwork, and distribute the gifts.

 
HCPC Registration


8. It is also alleged that the Registrant worked as a social worker during two periods in 2014 and 2015 when he was not registered with the HCPC.


Panel decision

9. The Panel considered sequentially:


(1) whether the factual particulars were proved;
(2) if the proved facts amounted to misconduct, and if so;
(3) is the Registrant’s fitness to practise currently impaired?

10. The Panel accepted the advice of the Legal Assessor, that 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.


11. The Panel heard submissions on behalf of the HCPC and oral evidence from the following HCPC witnesses: NS (Safeguarding Team Manager employed by the Council and previously the Registrant’s line manager), AW (the Council’s Investigating Officer) and SB (Area Manager employed by the Council and NS’s line manager). The Panel also considered the written statements from PR (HCPC Registration Manager) and RB (Legal Assistant). The Panel gave weight to oral evidence and written statements as appropriate.

12. The Panel found all the live HCPC witnesses to be credible. In particular, it concluded that AW (the Investigating Officer) had conducted a fair investigation into these matters on behalf of the Council. The Registrant has not attended this hearing; however the Panel has not drawn any adverse inferences from his non-attendance and the Panel has taken full account of explanations and information he provided during the investigation by the Council.


Particular 1


13. The Council’s Expenses Policy states: “2 …The Council will reimburse employees for all reasonable and necessary expenses while travelling on authorised Council business…” . The Panel was provided with records from the Council showing that the Registrant was off sick on 3 November 2014 and 29 September 2015, and on annual leave on 23 December 2014. The Panel was also provided with copies of the Registrant’s expense claims showing that he had claimed mileage for journeys undertaken on each of these dates. The Panel therefore finds Particulars 1a), 1b), and 1c) proved.

Particular 2


14. The Council’s Expenses Policy states: “2.12.1…Mileage claims should be restricted to the shortest possible routes for journeys undertaken.” The Panel accepted the evidence of AW that her investigation revealed that on 30 different dates, the Registrant had claimed travel expenses far in excess of actual distances involved, based upon an AA Route Planner search. AW conducted a fair investigation; she disregarded claims where there was a lack of precise information as to the start and end point of journeys, and she allowed a “leeway” of 4 miles in respect of distances claimed.

 
15. The Registrant was asked by the Council to produce his work diary in order to provide evidence for his journeys claimed. He initially stated that he had lost his diary. When informed that this may be a data protection breach, the Registrant said that his diary was not lost but was at home and that he would find it over the weekend. The Registrant never produced his diary.

16. The Panel was provided with copies of the Registrant’s expenses claim forms for the relevant periods, a table showing the analysis carried out by AW, and print outs from AA Route Planner of the relevant journeys, produced by RB. The Registrant had over-claimed for 30 separate journeys in three months, by amounts of up to 24 miles per journey. The Panel therefore finds particulars 2a), 2b) and 2c) proved.


Particular 3 a)


17. The evidence of NS, the Registrant’s line manager, was that on 23 December 2015, the Registrant advised her that he would be taking the day off as sick leave. This is supported by documentary evidence seen by the Panel which records the Registrant as being off sick on this date. The Panel therefore finds this particular proved.


Particular 3 b)


18.  The evidence of NS was that she only became aware that the Registrant had collected the gifts when she received a telephone call from the radio station to advise that he had not signed all the necessary paperwork. The Registrant had not told her that the gifts had been requested. The Panel therefore finds this particular proved.


Particular 3 c)


19. The evidence of NS was that she was informed by the radio station that the Registrant had collected 207 gifts which he had signed for, plus an additional 50 gifts which he had not signed for. The Panel therefore finds this particular proved.


Particular 3 d)


20. The evidence of NS was that, after she spoke to the radio station, she called the Registrant to ask him if he had collected the toys. He confirmed that he had. She had not been notified by the Registrant that he had collected the gifts prior to this. The Panel therefore finds this particular proved.


Particular 3 e)


21. The evidence of NS was that the social work team had discussed this matter in November 2015 and agreed the number of toys needed to give to service users. These had been collected in November 2015, and there were still some left on 23 December 2015 so there was no requirement for additional gifts. The Panel therefore finds this particular proved.


Particular 4


22.  The Panel saw, from the documentary evidence provided, and the written statement of PR, that on 14 March 2014, the Registrant was removed from the HCPC register due to unpaid fees. He was re-admitted to the register on 25 March 2014. He was again removed from the register on 5 November 2015 due to unpaid fees and was re-admitted to the register on 17 December 2015. The evidence of AW was that the Registrant was asked to undertake administration duties only from 24 November 2015 until he was re-registered, as he was unable to practise as a social worker without HCPC registration. The Panel therefore finds this particular proved.


Particular 5

23. 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, 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. Accordingly, 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 the relevant particulars 1 a), 1 b), 1 c), 2 a), 2 b), 2 c), 3 a), 3 b), 3 c), 3 d) and 3 e). The Panel considered possible motives for the alleged dishonesty and any explanations given by the Registrant for his behaviour.


24.  In respect of 1 a), 1 b) and 1 c): when interviewed by AW as part of the Council’s investigation, the Registrant was not able to explain why the Council’s records show that he was not in the office on the relevant dates and therefore was not entitled to claim any travel expenses. He suggested that he may have come into the office when he was on leave due to an emergency or left early due to sickness; but there was no evidence before the Panel to support this. NS’s evidence was that she was not aware of any occasions where the Registrant had booked annual leave or called in sick and subsequently cancelled it and come into work. The Registrant would have been provided with a copy of the Council’s Expenses Policy at the time of his induction and the Policy is available on the Council’s intranet system. He made a declaration that his expenses claims were true and accurate when he submitted them but the Panel finds that he must have known this was not the case. The Panel finds that a reasonable and honest social worker would find claiming mileage for days that the Registrant was not actually working to be dishonest, and he would have known that his conduct was dishonest by those standards.
25.  In respect of 2 a), 2 b) and 2 c): the Council’s records show that on 30 different dates, the Registrant claimed travel expenses far in excess of the distances involved based upon an AA Route Planner search. The Panel finds that AW conducted a fair investigation. When asked by the Council, the Registrant said he had lost his work diary but would be able to find it. It has never been produced. He did not provide a satisfactory explanation for any of the 30 excessive mileage claims he made. The Registrant would have been well aware of the requirement in the Council’s Expenses Policy that mileage claims should be restricted to the shortest possible routes for journeys undertaken. He also made a declaration that his expenses claims were true and accurate. However, the Panel finds he must have known that this was not the case for the 30 relevant mileage claims when he submitted them. The Panel finds that a reasonable and honest social worker would find claiming for more miles than the Registrant actually travelled to be dishonest, and he would have known his conduct was dishonest by these standards.


26.  In respect of 3 a), 3 b), 3 c), 3 d) and 3 e): on 23 December 2015, despite being on sick leave and without being authorised to do so, the Registrant collected gifts donated for charitable purposes. He collected a total of 257 children’s toys, without following the correct procedures, including not signing the radio station’s paperwork for 50 of the gifts. He notified the Council of this collection only when he was confronted by his line manager. The Council still had some surplus gifts and did not need any further gifts at that time. His explanation given to NS for collecting the toys, (that he was doing “something nice for the team”) was not credible. On the contrary, what he had done created extra work for his colleagues and was of no benefit to them. The Panel finds that the Registrant’s unauthorised collection of a large quantity of toys donated by members of the public to a radio station (for distribution to disadvantaged families as part of a charity appeal) and which were not required for service users, would be considered dishonest by a reasonable and honest social worker, and he would have known that his conduct was dishonest by those standards. The Panel therefore finds this particular proved.


Grounds


27. 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.

28. Under the HCPC Standards of conduct, performance and ethics (2012 edition), Registrants are required to comply with the following standard:


 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…’


29. The HCPC Standards of proficiency for Social workers states that social workers must:


 2. ‘be able to practise within the legal and ethical boundaries of their profession’.
 3.1‘understand the need to maintain high standards of personal and professional conduct.’


30. In respect of particulars 1 and 2, the Panel has found that the Registrant dishonestly claimed mileage payments to which he was not entitled on a number of occasions over an extended period of time. This was a breach of the standards set out above and is serious enough to amount to misconduct.


31. In respect of particular 3, the Panel has found that the Registrant was dishonest in collecting toys donated by the public in good faith, which were not required for service users, without authorisation and on a day when he had said that he was too ill to work. This was a breach of the standards above, and serious enough to amount to misconduct.

 
32. In respect of particular 4, the Panel has found that on two occasions, the Registrant practised as a social worker whilst not having the required registration with the HCPC. The Panel heard from AW that on the second occasion, the Registrant undertook administration duties only for a period of time, which had a significant impact on his colleagues. Particular 4 was a breach of the above standards and also of Standard 2.10 of the Standards of Proficiency for Social workers: ‘understand what is required of them by the Health & Care Professions Council’, and serious enough to amount to misconduct.


Impairment


33. The Panel considered the Practice Note on Finding that Fitness to Practise is Impaired and accepted the advice of the Legal Assessor. 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.


34. The Panel bore in mind that the test of impairment is expressed in the present tense: that fitness to practise is impaired at the current date.

35. The Panel has also taken into account the critically important public policy issues. Dame Janet Smith in the 5th 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 his integrity can no longer be relied upon. In respect of the public interest, the following guidance was provided in the case of Grant [2007] EWHC 1806. 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.


36. The Panel finds the dishonesty and misconduct in this case to be a breach of the fundamental tenets of the profession and likely to undermine the relationship of trust required between social workers and service users. There has been no evidence of insight, remorse or remediation demonstrated by the Registrant, who has not engaged with the HCPC process. The Registrant has not provided any information about his current circumstances. A risk of repetition arises because these were not isolated incidents and can properly be regarded as a course of conduct. The Registrant’s fitness to practise is impaired on personal grounds. The Registrant’s behaviour fell far below what would be expected of a social worker in the circumstances. Therefore, it is also necessary in order to maintain confidence in the profession and uphold the HCPC standards of conduct and proficiency, to make a finding that the Registrant’s fitness to practise is also impaired on the public policy grounds.


Sanction


37. The Panel accepted the advice of the Legal Assessor and considered the guidance in the HCPC Indicative Sanctions Policy (ISP).

38. The Panel bore in mind that the purpose of fitness to practise proceedings is not to punish registrants, but to protect the public. There is also a public interest in upholding the reputation of the profession and maintaining public confidence in the HCPC regulatory process. In deciding what, if any, sanction to impose under Article 29 of the Health and Social Work Professions Order 2001, the Panel has had regard to the principle of proportionality and the need to balance the interests of the public with those of the Registrant.


39. The Panel considered, in ascending order, what, if any, sanction to impose.

40. In the Panel’s view, the aggravating factors in this case include the significant risk that damage has been caused to the reputation of the profession. The Panel’s findings of dishonesty put the Registrant in breach of a fundamental tenet of the profession and are likely to undermine the relationship of trust required between social workers and service users. There has been no evidence of insight, remorse or remediation demonstrated by the Registrant, who has not engaged with the HCPC process or provided any information about his current circumstances. These were not isolated incidents and can properly be regarded as a course of conduct involving a number of incidents over a significant period of time. There is therefore a risk of repetition. The Panel noted that the Registrant was employed as a Social Worker at the Council from 2014-2016, and his misconduct spans almost the whole period.


41. There are no mitigating features in the information before the Panel.


42. The Panel first considered whether it is necessary to impose a sanction, and decided that it was due to the seriousness of the Registrant’s misconduct and the extent of the current  impairment of his fitness to practise.

43. The Panel next considered whether to impose a Caution Order. However, this would be contrary to the ISP, and would not be appropriate due to the Registrant’s lack of insight and remediation. His repeated dishonest behaviour and misconduct are not minor matters. A Caution Order would not address the significant public interest matters in this case, or the risk of repetition.


44. The ISP states, in relation to Conditions of Practice that: The imposition of conditions requires a commitment on the part of the Registrant to resolve matters. Therefore Conditions of Practice are not appropriate due to the Registrant’s lack of engagement, and the lack of any evidence of insight. In addition, the Panel did not find it possible to frame conditions that would appropriately deal with repeated dishonesty.

45. The Panel next considered whether to impose a Suspension Order. The ISP states that this is an appropriate sanction where the allegation is of a serious nature but unlikely to be repeated. It goes on to state that if the evidence suggests that the Registrant will be unable to resolve or remedy his failings, then striking off may be the more appropriate option.  Suspension orders cannot be made subject to conditions. The Panel had before it no information to suggest that the Registrant is willing or able to resolve or remedy his failings. He has not engaged in these proceedings in any way. The Registrant was dishonest on a number of occasions over a period of time.  The nature and gravity of his misconduct, and the lack of engagement, mean that a Suspension Order would not be appropriate in this case. A Suspension Order would also lack deterrent effect and undermine public confidence in the social work profession and the regulatory process. 

46. Therefore the Panel finally considered imposing a striking off order. The ISP states:


‘Striking off is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust such as…dishonesty…’ and ‘…where there is a lack of insight’
‘…A Registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate.’


47. The dishonesty and misconduct of the Registrant has breached one of the fundamental tenets of the profession. He has undermined public trust and confidence in social workers. A deterrent sanction is therefore justified. 


48. The Panel concluded that striking off is the appropriate, proportionate and necessary sanction in this case in order to maintain public confidence in the profession and the regulatory process, and to uphold the HCPC standards.

Order

Order:
The Registrar is directed to strike the name of Mr James David Holland from the Register from the date this order comes into effect.

Notes

At a Hearing held in London on 17-19 July 2017 The Registrant's name was struck off the Register.

Hearing history

History of Hearings for Mr James David Holland

Date Panel Hearing type Outcomes / Status
17/07/2017 Conduct and Competence Committee Final Hearing Struck off