Miss Obafunke Yetunde Akinleye

: Social worker

: SW00535

: Final Hearing

Date and Time of hearing:10:00 29/09/2017 End: 17:00 29/09/2017

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

: Conduct and Competence Committee
: Suspended

Allegation

Allegation (as amended at the substantive hearing):

On 8 March 2016 at Isleworth Crown Court you were convicted of:


1. Dishonestly failing to notify change of circumstances affecting your entitlement to social security benefit, contrary to the Social Security Administration Act 1992 s.111A(1A).


2. Dishonestly failing to notify change of circumstances affecting your entitlement to social security benefit, contrary to the Social Security Administration Act 1992 s.111A(1A).


3. By reason of your convictions, your fitness to practise as a Social Worker is impaired.

Finding

Preliminary Matters


Amendment of Allegation

1. Ms Eales, on behalf of the HCPC, applied to amend the Allegation in that the date of conviction was actually 8 March 2016, and the date of 15 March 2016 as shown on the allegation was the date the Registrant was sentenced. She submitted that the amendment sought was consistent with the evidence before the Investigating Committee.


2. Ms Robertson, on behalf of the Registrant, did not object to the amendment.


3. The Panel accepted the advice of the Legal Assessor, who advised that it was open to the Panel to amend the Allegation, provided no injustice would be caused by the amendment. The Panel considered the amendment sought to be minor and would not change the substance of the Allegation. The amendment clarifies the Allegation, and would not cause injustice. The Panel therefore allowed the application to amend the Allegation. The amended Allegation is as set out above.

Background

4. The HCPC was notified by the Registrant on 21 July 2016 that she had been convicted on 8 March 2016 at Isleworth Crown Court of two counts of benefit fraud for which, on 15 March 2016, she was sentenced to 20 weeks imprisonment suspended for 24 months with a requirement of 100 hours unpaid work to be completed before 14 March 2017.

Decision on Facts


5. The Panel accepted the advice of the Legal Assessor. It heard the submission of Ms Eales and the admission of the Registrant to Particulars 1 and 2.


6. The Panel has before it the certificate of conviction from the Crown Court at Isleworth in relation to the Registrant and the criminal matters outlined above. It sets out clearly the offences for which the Registrant was convicted and the sentence imposed upon the Registrant.


7. Accordingly, the Panel finds the fact of the conviction proved.


Decision on Impairment


8. The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of the conviction.


9. Ms Eales outlined the background facts of the conviction and referred the Panel to the relevant practice note issued by the HCPTS in relation to impairment of fitness to practise and cases involving conviction. Ms Eales submitted that the Registrant’s fitness to practise is currently impaired in that the conviction was a serious matter and there is no evidence of remediation in that this was the second conviction for a serious offence of fraud in an approximate seven-year period. She informed the Panel that for the previous matter of mortgage fraud, the Registrant was sentenced to a period of imprisonment of 26 weeks suspended for a period of 12 months with a condition of 100 hours of unpaid work. She submitted that this new conviction demonstrated repeated behaviour.


10. Ms Eales further submitted that the Public Interest requires that a finding of impairment be found so as not to undermine public confidence in the profession and the regulatory process. Furthermore, the Registrant is still subject to a suspended sentence as the operative period lasts until 14 March 2018. Ms Eales referred the Panel to the case of CHRE v NMC and Grant [2011] EWHC 927 (Admin) and Cohen v GMC [2008] EWHC 581. She submitted that the relevant considerations in this case is the seriousness of the charge, the nature of the sentence, the public perception of benefit fraud, and the poor judgement of the Registrant.


11. The Panel received documentary evidence from the Council, which included the certificate of conviction for these matters, and the judges’ comments on this conviction, and for the previous matter where the Registrant was convicted of fraud.

12. Ms Robertson told the Panel that the Registrant accepted the fact of the conviction. She referred the Panel to documents submitted on Registrant’s behalf, consisting of a statement from her and references made on her behalf. The Registrant did not give oral evidence.


Legal Advice


13. The Legal Assessor reminded the Panel that its role was not to go behind the conviction nor was it to seek to retry the criminal case. The Legal Assessor advised the Panel that its task was to determine whether the Registrant’s fitness to practise is impaired, based upon the nature, circumstances and gravity of the criminal offences concerned. The Panel should consider whether the Registrant’s actions had brought the social work profession into disrepute or had undermined public confidence in that profession.


14. The Legal Assessor also advised the Panel that it should bear in mind the principle of public protection in its broadest sense. In doing so, the Panel was entitled to adopt a 'retrospective' approach and consider the conviction as if the Registrant was applying for registration with the HCPC.


15. The Legal Assessor also advised the Panel to have regard to the sentence received, but also to bear in mind that the sentence imposed is not necessarily a good indicator of the seriousness of the offence when considered in a regulatory context. This is because the prime consideration of regulatory tribunals is the protection of the public and of the wider public interest.


Panel’s consideration and decision

16. The Panel accepted the advice of the Legal Assessor and had regard to the Practice Note issued by the HCPTS. In reaching its decision, the Panel had regard to all the evidence before it. It took account of the submissions of Ms Eales on behalf of the HCPC, and by Ms Robertson on behalf of the Registrant.


17. In considering whether the Registrant’s fitness to practise is currently impaired by reason of her conviction, the Panel adopted the approach formulated by Dame Janet Smith in her fifth report of the Shipman Inquiry by asking itself the following questions:


“Does the Registrant’s conviction, and the facts relating to the conviction show that her fitness to practise is impaired in the sense that she:
a) has in the past acted and/or is liable in the future to act so as to put patient or patients at unwarranted risk of harm; and/or
b) has in the past brought and/or is liable in the future to bring the social work profession into disrepute; and/or
c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the social work profession; and/or
d) has in the past and/or is liable in the future to act dishonestly?”

18. In coming to its decision, the Panel also took into account the following features of this case:


(a) The Registrant pleaded guilty to this offence in the Crown Court at the earliest opportunity;


(b) The Registrant did not inform the HCPC of her conviction until three months after she was sentenced for the offences;

(c) The Registrant did not inform her employer, for whom she was working at the time, of the criminal proceedings or of the sentence she received.


(d) This is the second conviction for an offence of fraud within approximately 7 years. The first conviction was also serious enough to warrant a suspended sentence of imprisonment.


(e) The nature of the criminal offence for which she has been convicted is one involving dishonest conduct over a period of time.

(f) The Registrant is still subject to the suspended sentence which runs until 14 March 2018.


19. The Panel determined that on the evidence before it, the Registrant has not demonstrated insight into her offending behaviour. No evidence was presented as to why these matters were allowed to continue over a period of time. The Panel did not find the Registrant’s account, that she completely forgot to inform the relevant authorities that she had started work, plausible nor sufficient to demonstrate insight.


20. The Panel determined that there is no evidence that the Registrant had put members of the public at risk of harm. The Panel determined that there is a risk of repetition of the Registrant’s criminal conduct. The Panel further determined that by this conviction, the Registrant had breached a fundamental tenet of the profession, namely that it is incumbent on members of the profession to be honest at all times.


21. The Panel determined that the conviction was such that the need to uphold professional standards and public confidence in the profession would be undermined if a finding of impairment was not made. Therefore, the Panel determined that the Registrant’s fitness to practise is currently impaired by reason of her conviction on both the personal and public component of the test for impairment.

Decision on Sanction


22. Ms Eales reminded the Panel of the wider public interest in the imposition of a sanction. She drew the Panel’s attention to the Indicative Sanction Policy issued by the HCPTS and the guidance contained therein. She reminded the Panel that any sanction must be proportionate and that it was important to note that the purpose of a sanction is not to punish the Registrant for a second time. That said, she also reminded the Panel of the case of CHRE v GDC and Fleischmann (2005) EWHC 87 and the general principle articulated therein, that where a practitioner had been convicted of a serious criminal offence, he should not be permitted to resume his practice until he has satisfactorily completed his sentence.


23. Ms Robertson stated that the Registrant accepted the Panel’s findings on impairment and that the Registrant regretted not informing her previous employment about the criminal proceedings. She informed the Panel that the
Registrant has not been working as a Social Worker since she left her employer in May 2016. Ms Robertson outlined the personal and financial circumstances of the Registrant. She drew the Panel’s attention to the positive references submitted on the Registrant’s behalf. Ms Robertson told the Panel that the Registrant remains committed to the profession and that there is no likelihood of repetition as she has learnt her lesson from these proceedings. She told the Panel that the Registrant has paid back most of the money obtained from her fraud.


24. Ms Robertson conveyed the Registrant’s deep sense of shame and regret for these matters.


25. The Panel took into account the submissions of Ms Eales on behalf of the HCPC, and Ms Robertson on behalf of the Registrant.


26. The Panel accepted the advice of the Legal Assessor. He advised the Panel that the full range of sanctions is available to the Panel as this was a case involving a criminal conviction, and he reminded the Panel that it was not to go behind the conviction. He advised the Panel that it should bear in mind its duty to protect members of the public and also the public interest which includes maintaining and declaring proper standards of conduct and behaviour, maintaining the reputation of the profession, and maintaining public confidence in the profession and the regulatory process.


27. He reminded the Panel that, whilst the Panel was entitled to take into consideration the sentence that the Criminal Court imposed upon the Registrant, the sentence imposed is not necessarily a good indicator of the seriousness of the matter in the context of regulatory proceedings.


28. The Legal Assessor advised the Panel that any sanction it imposes must be the least restrictive sanction that is sufficient to protect the public and the public interest. He reminded the Panel that the purpose of a sanction is not punitive, although it may have that effect. The purpose of a sanction is to protect members of the public and the wider public interest, weighing the Registrant’s interest against the public interest.


Panel’s consideration and determination


29. The Panel had close regard to the HCPC’s Indicative Sanctions Policy document in reaching its decision on sanction. The Panel reminded itself that the purpose of a sanction is not to punish. Rather, a sanction should only be imposed to the extent that it is required to protect the public, to maintain a proper degree of confidence in the profession and the regulatory process, and to declare and maintain proper standards among fellow professionals. To ensure this approach the Panel reminded itself to first consider whether its findings require the imposition of any sanction at all. If they do, then the available sanctions must be considered in ascending order of seriousness until one that satisfies the factors already identified is reached. The Panel confirms that it has followed this approach in the present case.


30. The Panel has had regard to all the documentary evidence presented, and to the submissions of both parties. It reminded itself of the matters it took into consideration above when deciding whether the Registrant’s fitness to practise is impaired.


31. The Panel determined that the fact that the Registrant has engaged with these proceedings and has made admissions to the allegation to be factors in her favour. The Panel determined that the Registrant had been convicted of a serious criminal offence. Furthermore, in the light that it was the second offence of a similar nature, and the lack of sufficient evidence as to insight, the Panel could not be satisfied that there was a low risk of repetition. The Panel noted that there is no evidence that the Registrant has been dishonest in her professional life.


32. In considering the matter of sanction, the Panel started with the least restrictive moving upwards.


33. The Panel first considered taking no action but concluded that, given the seriousness of the criminal offence, this would be wholly inappropriate.


34. The Panel then considered whether to make a caution order. The Panel determined that the circumstances of the criminal offence are such that a caution order is not appropriate for the same reason as set out above.


35. The Panel next considered the imposition of a Conditions of Practice Order. However, this is not a case that is suitable for the imposition of a Conditions of Practice Order. There are no concerns with the Registrant’s practice or competency as a Social Worker, and the serious nature of the criminal offence makes a Conditions of Practice Order inappropriate as a sanction.


36. The Panel then considered whether a period of suspension would be a sufficient and proportionate response in order to maintain a proper degree of confidence in the profession and the regulatory process, and to declare and maintain proper standards among fellow professionals. Taking the
circumstances of the criminal offence into consideration and the general principal articulated in the above mentioned case of Fleischmann, the Panel has determined that the Registrant has been convicted of a serious criminal offence and that she should not be permitted to resume her practice until she has satisfactorily completed her sentence. The Panel did not consider there to be exceptional circumstances to depart from the general principle.


37. The Panel weighed all the above considerations, and determined that a Suspension Order for the maximum period would be sufficient to maintain and declare proper standards of conduct and behaviour, to maintain the reputation of the profession, and to maintain public confidence in the profession and the regulatory process.


38. The Panel went on to consider the sanction of striking-off and determined that such a sanction would be disproportionate at this stage.


39. It is important that the Registrant should understand that in common with all Suspension Orders, the order made today will be reviewed before it expires. The panel undertaking the review will have all the sanction options available to the Panel today, including the power to make a Striking-Off Order. If the Registrant chooses to take advantage of the opportunity that has been extended to her by the making of a Suspension Order to seek to persuade the reviewing panel that she should be permitted to return to practice, then the present Panel suggests that she consider taking the following steps, which are not to be taken as an exhaustive list:


(a) Engaging with the fitness to practise process and attending the review hearing.


(b) Preparing a reflective piece of writing explaining what insight she has developed into the matters that have been considered by the Panel and how she would seek to prevent a recurrence of similar failings.

(c) Provide evidence of any training undertaken to maintain her professional standards and CPD.

(d) Provide up-to-date testimonials from people able to comment on structured activities she has undertaken.

Order

Order: That the Registrar is directed to suspend the name of Miss Obafunke Akinyele from the Social Work part of the Register for a period of 12 months.

Notes

No notes available

Hearing history

History of Hearings for Miss Obafunke Yetunde Akinleye

Date Panel Hearing type Outcomes / Status
29/09/2017 Conduct and Competence Committee Final Hearing Suspended