Pain v Secretary of State  [2006] EWCST 636(PVA) (01 June 2007) 

Angela Pain

-v-

Secretary of State

[2006] 636.PVA

-Before-

Mr Stewart Hunter (Nominated Chairman)
Ms Geraldine Matthison 
Mrs Sallie Prewett

Decision

Heard on 7th August 2006, the 26th and 27th February 2007 and 2nd and 3rd May 2007 at Pocock Street, London.

Representation

The Appellant was represented by Ms Gillian Campbell of Counsel

For the Respondent - Mr A Sharland of Counsel.

Appeal 

1.	This is an appeal by Ms Angela Pain under Section 86 (1) of the Care Standards Act 2000 against her inclusion on the list kept by the Secretary of State under Section 81 of the Care Standards Act 2000 of individuals who are considered unsuitable to work with vulnerable adults, the "POVA" list.  

Preliminary Matters

 2.	On 11th April 2006 the President of the Tribunal made a Restricted Reporting Order under Regulation 18 (1) of the Protection of Children and Vulnerable Adults and Care Standards Regulations 2001 ("the Regulations"), prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any service user or co-worker.  At the conclusion of the hearing the Tribunal re-affirmed that the Restricted Reporting Order should remain in force until further order. 

The Evidence heard

3.	Greenbanks Home Care Limited provides services for elderly and vulnerable clients in their own homes.  A number of carers are employed by Greenbanks to deliver various aspects of care from domestic cleaning through to personal care.  Greenbanks were said to employ around 500 staff and to have 9 sites situated across southern England and Wales. One of their offices is situated in Winchester from where the work of about 40 carers working for Greenbanks is co-ordinated. 

4.	On 8th July 2003 the Appellant applied for employment with Greenbanks.  The application form provided by Greenbanks, asked applicants to indicate whether or not they had a full UK driving licence, to which the Appellant indicated that she had.  She was also asked to state whether she had any endorsements on her licence, to which she had responded “no”.  The Appellant as part of the identification documentation supplied to Greenbanks produced a copy of her driving licence, which showed that she had been convicted on 20th July 2001 of an offence of having no insurance, for which she received a £100 fine and 6 penalty points endorsed on her licence.

After receipt of the Appellant’s application form Geenbanks staff subsequently wrote certain information on the form.  This indicated that the Appellant was interviewed on 15th July 2003 by Ms KM, that references had been received on 17th July 2003 and that an induction had taken place on 18th July 2003.  The form also indicated that Greenbanks had seen the Appellant’s driving licence and that a police check in respect of possible previous criminal convictions had been received on 18th August 2003. The Appellant was offered employment with a start date of 1st August 2003.  The notes of the Appellant’s job interview, which had taken place on 15th July 2003 and was conducted by Ms KM, indicated that the Appellant had no previous experience as a care worker, but had done domestic work in a hospital.  Further the Appellant had indicated a preference not to do personal care to the extent of washing people and stated that domestic work was preferred. 

5.	In oral evidence to the Tribunal, the Appellant accepted that it had not been correct for her to state in her application form that she had no endorsements on her driving licence.  She had not registered what the question meant and had forgotten about the endorsement.  She had gone to court in relation to the offence of having no insurance and had been given 6 penalty points. 

6.	A copy of a document entitled “Greenbanks Care - Induction Programme” was produced to the Tribunal.  This included a section entitled “Greenbanks Policies and Procedures”.  The first paragraph in this section of the document reads as follows:-

“Please note that copies of Greenbank’s full policies and procedures are available on request from you local office. The following are in an abridged form only”. 

One of the policies to which reference was made during the course of the proceedings was the “Complaints Policy “GB 06/07”.  The first two sentences of the policy states that:-

“Complaints should in the first instance be directed to the office manger. A   GB O8, complaints form must be completed for all complaints and sent to the Area Manager.  If the complainant is not satisfied, the matter must be referred to the General Manager at Head Office”. 

The policy regarding the handling of client’s monies referred to as “Handling Client Monies GB 21” states:-

“Always obtain receipts for shopping.  Document any money transactions on the care plan and ask the Client to sign for all money transactions.  Receipts books can be obtained from the office, give the Client a copy and send a copy to the office, this is for your own protection.  Do not use your own reward cards when purchasing shopping”.  

7.	An additional document included within the “Induction Programme” was headed “Greenbanks Care Guidelines”.  One of the guidelines quoted in this section of the documentation headed “Gifts and Loans “, states as follows;-

“Do not accept gifts, loans or monies under any circumstances from a client.  Do not borrow anything that belongs to a client, breach of these directives will result in disciplinary action”. 

8.	In addition to the “Induction Programme” a number of other Greenbanks documents were also produced as part of the documentation in this appeal.  These included the Appellant’s “role profile” which described her as “a carer” and set out her responsibilities and the activities that she was required to assist service users with.  There was also a document headed “Code of Conduct for care staff.” Included within this document was the following information:-

•	All money transactions and pension collection must be recorded at all times with both the Service User and carer signing the Record of Financial Transaction.  The carer should provide receipts and must not profit from promotional offers or use personal loyalty cards when purchasing items for service users. 
•	Carers must not be witness to wills, legal or official document, or accept gifts or money.  If approached by a service user to do so, the carer must report this to the office. 

A further document was entitled “Greenbanks Care - Care Record Book Policy” this included a paragraph which reads as follows:-

“All financial transactions undertaken on behalf of the service user should be documented in the care record book and a signature of the service user obtained”. 

9.	A document entitled “Contract of Employment” was produced and appeared to have been signed by the Appellant and dated 18th July 2003.  On the 2nd page of the document under the heading “Agreement and Declaration” was contained the following statement:-

“Before you sign the agreement and declaration below, please ensure that you fully understand these Terms and Conditions, Statements, Policies and Code of Conduct, Service Users Rights and Contract Terms.  If you need advice place ask”. 

10.	An additional document produced was headed “Greenbanks Care Group - Record of Induction, Development and Training”.

It stated within the document that it was intended to be used to keep a record of an employee’s induction, carers development and the training courses attended.  The name of the carer to whom the document applied was stated to be the Appellant and the date of commencement 18th July 2003.  Section 5 of the document was headed “Declaration” and reads as follows:-

“I Angie Pain have attended my induction with Greenbanks Care Groups.  I have received instructions, guidelines and information on all areas within this booklet.  I have ticked each subject to indicate that I understand each one.

I have been given an induction book.  I was advised to read it.  I understand that the guidelines and policies in the induction book are an abridged version.  I can have copies of any of the policies.  I agree as an employee of Greenbanks Care Group to work to the policies and guidelines at all times, failure to do so is in breach of my contract”.

The declaration was purported to have been signed by the Appellant and Ms KM and was dated 18th July 2003. 

Section 7 of the document was headed “Training Courses” against which there were a number of entries including one dated 18th July 2003 which simply stated “Induction” and was signed by Ms KM.

Another document which appeared to have been signed by the Appellant on 18th July 2003 was described as “Greenbanks Care - Carers Check List”.  The first sentence of that document reads as follows:-

“It is a requirement of registration with Greenbanks homecare Limited that all carers read, understand and abide by Greenbanks policies.” 

The checklist then set out a list of individual documents which apart from those entitled organisation chart, stakeholders pension information and police check received on, all other sections had been ticked. 

11.	On 9th March 2004 the Appellant was interviewed at Winchester Police Station by PC 3477 Scothmer-Clay.  The interview was tape recorded and a transcript of the tapes was produced as part of the evidence.  During the course of the interviews the Appellant was asked a number of questions by the police officer.  One of the questions was:-

“When you started with Greenbanks you went on to some sort of induction course is that right and that just explains what the job is all about, yea?”

To which the Appellant responded, “yea”. 

Later in the same interview the officer asked the following question:-

“The next thing is a booklet (which for the benefit of the tape is exhibit reference “CJC/Greenbanks/2” it is a green booklet and is called an induction programme.)  Would you have been given one of those, yea on your induction?”, to which the Appellant responded “yea”. 

12.	In these proceedings the Appellant signed a witness statement dated 6th June 2006, paragraphs 62,63 and 64 of that witness statement read as follows:-

“62.    I did not have any training in handling client’s monies and the training/induction book that was produced during the trial did not exist when I was there and was subsequently completed without my knowledge. 

63.	When I first started working for Greenbanks it was not requested or required that I used a receipt book. I used to sign a slip at Victoria House, for example after collecting Mr D’s pension which was countersigned by the manager.  I do accept that after my disciplinary, I was aware of the necessity of using the receipt book.   Mrs CCW and Ms SL introduced a financial record at the back of the care plan which we used to use prior to the receipt book.  

64.	I received no training in complying with the care plan.  I was told to do what the client wanted me to do if it was possible and made them happy.  This was regardless of exactly what was contained within the care plan”. 

On 20th March 2007 the Appellant signed an amendment to her original witness statement to replace paragraph 62 with the following. 

62.	“I did not have any training in handling client’s monies.  When I signed the  “Record of Induction” none of the tick boxes had been completed.  The document was blank apart from my name and the date of commencement.  I was not taken through the document prior to signing it.  Ms KM asked me to sign the form and stated that we would go through it later.  I did not receive a copy of this booklet until a few weeks after my interview.  When I signed the “Carer’s Checklist” this document was also blank, save for my name and the office location”.

The Appellant said that when she was answering questions at the police station it had been a very traumatic experience for her.  She was not able to remember everything.  She told the Tribunal that she had gone on the induction course, but she had not been aware that it was a proper induction and most of the time had been spent talking with Ms KM about their respective families.  She had not been given the instruction booklet, she had been given a blank document to sign and she did not consider that she had been fully trained.  She could not remember everything that was in the induction book, at the time she was going through the induction she was intending to work in the area of domestic cleaning and not to do shopping or collecting pensions.  She might have been shown the various policies and guidelines, but she was not taken through the documentation. She was told by Ms KM simply to sign the documents such as the Check List and the Development and Training record and that they would be gone through later.

13.	The Tribunal heard from Ms SB who had been the general manager at Greenbanks, but was no longer employed by them.  As well as giving oral evidence she had also signed a witness statement dated 7th June 2006.  Ms SB told the Tribunal that Greenbanks documentation regarding the Appellant indicated that Greenbanks had not received the result of the Appellant’s Criminal Record Bureau check, until after she had started work. Ms SB would have expected Ms KM to have taken the Appellant through Greenbanks Induction programme on the Appellant’s first day of employment with Greenbanks.  The various guidance and policies would then have been re-enforced while the Appellant was being shadowed by another worker.  The induction could last more than one day, but the present practice was for the induction to last three days.  A lot more policies now had to be gone through. Ms. SB said that at the time the Appellant was being inducted the practice was for Ms SB to go through with the managers what they should cover during such inductions, but that the managers were not supervised during that process. Ms SB had not been present during the Appellant’s induction therefore was not in a position to say whether she was given blank forms or not or whether she had been given an induction book.  The position had now changed in that Greenbanks had in 2004 appointed a dedicated training officer.  The Appellant should have been given a receipt book.

In terms of the interpretation of the policies set out in the documentation regarding the Appellant’s induction, Ms SB said that taking a client’s watch for repair was not a money transaction and therefore a receipt would not be required under the policy on money transactions.  Further that if a carer went to cash a service user’s pension with the service user and the service user kept the money themselves that would not be a money transaction. 

14.	Greenbanks keep individual records in respect of each of the service users with whom they work.  One of the service users was Mrs E B who Greenbanks described as having mild learning disabilities and being vulnerable.  A number of comments are recorded in Greenbanks records regarding Mrs EB. On the 21st November 2003 a comment is recorded to the effect that a matter had been brought to Greenbanks attention by a friend of Mrs EB who had told another carer in the employ of Greenbanks Ms AC and Ms AC had reported it to Ms KM.  The comment then goes on to state as follows:-

“   Mrs CCW and Ms SL went to visit Mrs EB about an allegation that had been made via another carer (Ms AC).  The allegation was that Angie Pain had borrowed £135 and was not showing any signs of paying it back.  Also that her husband had decorated for Mrs EB and charged her £100, Mrs EB confirmed that Angie borrowed £100 one week and then a further £35 to have repairs done on her car, totalling £135. 

It is also confirmed that Angie’s husband did do decorating totalling £100 and he was paid for this in cash.  Mrs EB asked Angie when she could expect her money back, to be told 31st December 2003.  Mrs EB did stress that she needed her money sooner.  No problems with Angie Pain as a person but would prefer if she did not call again would very much prefer Ms AC”.

Greenbanks decided to instigate their disciplinary procedure and suspended the Appellant from work while they investigated Mrs EB’s complaint.  

On 24th November 2003 Mrs CCW wrote to the Appellant, the first paragraph of her letter reading as follows:-

“I am writing to confirm that whilst we are conducting investigations regarding serious allegations made from a client concerning yourself, you will be suspended from all care work with pay.  It is purely company policy to protect you and ourselves.  The allegations in question are borrowing £135 from a client, and introducing your husband’s services as a decorator for payment”. 

Mrs CCW wrote to the Appellant again on 26th November 2003 indicating that a disciplinary meeting was to be held on the 5th December 2003.  The letter went on:-

“the nature of the unsatisfactory conduct of performance to be covered in the interview is failing to adhere to company policy.  

a.	Monies have been reported as missing at Mr M’s totally £40.
b.	Handbag complete with contents missing at Mrs M’s.
c.	Purse missing containing £40 at Mrs B’s.
d.	Monies have been reported missing totalling £80 on one occasion and £40 on another at Mrs C’s
e.	pound coins have been reported missing at Mr and Mrs T’s.
f.	Watch taken from Mr D without producing a valid receipt.
g.	The ongoing problem with borrowing monies totalling £135 from Mrs EB,  and the decorating which was arranged against company policy to be done by Mr John Pain, your partner. “

15.	The Appellant denied at the disciplinary hearing that she had borrowed any money from Mrs EB and re-iterated that denial in her witness statement in these proceedings.  The Appellant also indicated in her witness statement that she believed Mrs EB had previously accused another carer Ms AC of borrowing money from her.

As far as the decorating was concerned the Appellant said in her witness statement that her husband had done some decorating work for Mrs EB and had been paid £100.  This has been as a result of a telephone call from a friend and neighbour of Mrs EB’s who had been known to Mr Pain for some time and had not been as a result of a request from the Appellant herself.  At the Tribunal hearing the Appellant acknowledged that she had asked her husband to do the decorating work, if he had said to her that he would to do the work then the Appellant would have referred the matter to Ms KM. 

16.	In respect of the other complaints dealt with at the disciplinary hearing on 5th December 2003, the first of these concerned Mr M.  There was a note in Mr M’s Greenbanks record dated 24th November 2003 which stated as follows:-

“Call from J whilst assisting G with collecting monies for Mr M, was called into the office at Victoria House.  He was told that money had gone missing from Mr M’s flat. I called G who would not confirm that monies had not gone missing as Mr M will not make a fuss.  Also, the staff were quite sure that some monies are missing.  Around £40 has been talked about.  Mr M will not report anything as he is now saying that he is not sure that anything was missing.”  

The Appellant stated in her witness statement that she had gone to clean for Mr M on a weekly basis and was aware that there were other carers who visited the premises.  She denied stealing any monies from Mr M.  

17.      As regards Mrs M, a complaint was based on a note from another carer Ms MN  which contained the following:-

“Conversation with MM

Carer Ms MN went in to do Mrs M’s lunch and on arrival she asked Ms MN to look for her navy blue handbag which had her purse as she was still unable to find it. Ms MN searched the property and it was no were to be seen.  After searching the property Ms MN said I am sorry M it is not here”.  No accusations were made.  Ms MN reported back to the office.” 

The Appellant indicated that she had only been to see Mrs M on one occasion and denied taking anything from her. 

18.       In the case of Mrs B, this matter was referred to in a Greenbanks incident file dated 27th November 2003. The allegation against the Appellant was that a purse had gone missing containing about £40. The allegation that it had been stolen by the Appellant was made by a neighbour of Mrs B.

The Appellant responded in her witness statement by stating that she did not think that Mrs B’s neighbour liked her.  In addition to the Appellant, Mrs B also had different carers at other times.  The Appellant denied stealing Mrs B’s purse or money.

19.     The matter relating to Mrs C was also set out in the Greenbank’s incident record dated 27th November 2003.  The allegation had originally been made against another carer, but it subsequently transpired that the Appellant had swapped shifts with the other carer. The allegation was that two sums of money had gone missing one of £80 and one of £20. The Appellant stated that she had covered for the other carer and denied stealing any money from Mrs C.

20.       In the case of Mr and  Mrs T  this was a matter recorded in an undated Greenbanks incident record headed,   “Conversation overheard by carer Ms MN whilst in Mr T’s and read as follows:- 

“While in doing the cleaning I overheard a conversation between Mr and Mrs T talking to their son that odd coins appeared to be missing, but no accusations were made against any carer”

The note appeared to have been signed by Ms MN. 

Mrs CCW in her witness statement had originally indicated that Mr and Mrs T had made a complaint that coins were being stolen and that the Appellant was implicated.  However, at the Tribunal hearing Mrs CCW amended that part of her witness statement to indicate that Ms MN had come into the office stating that Mr and Mrs T had noticed the level of one pound coins they kept in their home had dropped but “this was not a complaint just an observation”.  

The Appellant stated that Mr T suffered from Alzheimer’s and often used to forget where he put things.  She had not stolen any money from Mr and Mrs T. 

21       The allegation in respect of Mr D was that the Appellant had agreed to take his watch to be mended, but had not returned it. Further that she had not given Mr D a receipt for the watch. In her witness statement Mrs CCW indicated that the watch was worth around £1,000.  The Appellant accepted that she had taken Mr D’s watch with the intention of having it mended, but she had not been aware that it was worth £1,000.   She had asked the manager of the home where Mr D was living, whether she was required to give a receipt, and was told by the manager, Ms SD that it was not necessary. The watch was eventually given back to the manager at the home and a receipt obtained.  

22.	In her witness statement Mrs CCW stated that after the disciplinary hearing, “we decided to lift the suspension due to lack of evidence against the Appellant and she continued working for Greenbanks.”  At the tribunal hearing Mrs CCW said that in relation to the matters which were under investigation at the disciplinary hearing there had been no official complaint in any of the cases.  Further that there had been no reason to suspect any particular person in relation to the cases involving Mr M, Mrs M, Mrs C or Mr T. The Appellant was reinstated by Greenbanks.

Mrs CCW was during the course of her evidence referred to a letter from Greenbanks to the POVA team dated 31st March 2005 and the comment contained in that letter that: -

“We had a spate of thefts at that time and though we had no reason to suspect any particular person and no specific allegations were made of persons.  We were obliged to speak with Angela Pain who was a carer who had attended all these clients, albeit only in some cases for one or two visits.”

23     In January 2004 one of the people for whom Greenbanks was caring was a Ms MW who lived with her sister Ms RW.  In the client records for Ms MW is recorded an entry dated 16th February 2004 which reads as follows: -

“Angie Pain a carer came in and reported to us that Mrs W wanted fish and chips but had no money.  Mrs W mentioned that her pension could be cashed and that she could have some.  Angie offered to take her.  The pension hadn’t been cashed since November 2003 and the amount collected was £1,034.  Angie just wanted to report this to us to cover herself. CC.  The money was in a brown envelope and hidden in the house until they came to buy something.  CC”

24.  Ms SL told the Tribunal that she recalled on the 16th February 2004 the Appellant coming into the office with plants. She also recalled the Appellant telling her about having collected the pension, but that conversation had not taken place in the office. She was not 100% sure whether it was Ms MW or Ms RW whose pension had been collected. Ms MW was a client of Greenbanks at the time Ms RW was not and therefore there was no computer record kept for Ms RW.  Ms SL stated that she was aware that it was a breach of policy for a carer to accept gifts including plants, but she had decided to turn a blind eye to both the Appellant receiving the plant and her going to the post office to collect the pension.

The Appellant told the Tribunal that she had gone into town with Ms RW to cash her pension which had not been cashed for some time and an amount of around £1000 was obtained from the post office. Despite the Appellant having suggested to Ms RW that the money should be paid into the bank, Ms RW had insisted on taking it home because she was going to pay the council tax on her house with the money. Ms RW had given the Appellant a plant.  After having taken Ms RW home the Appellant said that she had gone to Greenbanks office and had reported both that she had received the plant and that she had gone to the post office with Ms RW to cash her pension and that Ms CC had entered this information on the computer.

In her written witness statement Ms CC stated as follows:-

“On the 16th February 2004 the Appellant came into the office with a tray of plants. She said that Ms WH (Ms RW) had brought them for her as a thank you gift for taking her into town to cash her pension at the post office.”

And later in the same statement said:-

“The Appellant informed Mrs CCW the Area manager at the time that the pension which had been cashed was for £1039 and this was recorded on the computer system at the time.”

Mrs CCW told the Tribunal that in her experience service users quite often asked carers to do things for them that were not in their care plan. In Mrs CCW‘s experience carers often did these tasks to keep the clients happy. Greenbanks were not obliged to provide care for a service user’s partner, but partners were not ignored.

25.    The client records for Ms BR record a telephone call being made to Greenbanks the weekend prior to the 9th February 2004 by a carer, saying that Ms BR had told her that money had been taken from her flat on two occasions. Ms SL said that she had subsequently visited Ms BR who had told her that she was frightened that the Appellant and her family would get her. The carer who had made the telephone call regarding Ms BR was Ms MN.

Mrs CCW told the Tribunal that she had gone to see Mrs BR with Ms MN at some point after the 5th March 2004. Ms SL said that Ms BR had stated that it was the Appellant who had taken the money from her, but that Ms BR had decided that she did not want any trouble and she just wanted Greenbanks to ensure that the Appellant was not sent to her home again. Ms SL gave evidence that there were a number of carers visiting Ms BR at the time and there was no evidence against the Appellant and accordingly no action was taken. Ms BR, who Greenbanks described as vulnerable did make a statement to the police dated 30th March 2004 in which she stated that she felt angry the Appellant had taken advantage of her, but because of her age and frailty did not wish to attend court.

The Appellant denied having stolen any money from Ms BR.

26.      On the 3rd March 2004 Ms SL recorded as a file note a conversation between herself and Ms MN. The relevant part of the note reads as follows:

“Ms MN came into the office and asked me the outcome of the duvet that Angela Pain took from Mrs W.  I said that it was being dealt with at the moment.”

In her witness statement Ms SL stated that she had been told by Ms MN who had in turn been told by Mrs W that Mrs W had put out a duvet in her hall and had been asked by the Appellant why it was there. Mrs W had told the Appellant that she had put it out for the charity shop. The Appellant was alleged to have said that she did not have much bedding and asked if she could take it herself as she was struggling financially and Mrs W had agreed and given it to the Appellant. Ms SL had gone on in her witness statement to say that later the same day she had spoken to the Appellant who denied having taken the duvet for herself and said that she had taken it to the charity shop. In oral evidence at the hearing Ms SL said that she accepted that the Appellant had not kept the duvet for herself, but she should have obtained a receipt from the charity shop.

The Appellant told the Tribunal that she had taken the duvet to an Oxfam charity shop in Winchester. She had subsequently gone back to try and obtain a receipt, but the woman that she had originally seen was not there and accordingly she had not pursued it any further.

27.       Ms SL said that she had been made aware of a complaint regarding a Mrs G, she thought the complaint had come via a telephone call from the police. It was an allegation that £60 had been taken from Mrs G. The position was that Mrs G was cared for both by Ms SL herself and the Appellant. The investigating police officer’s report dated 19th March 2004 was produced to the Tribunal, the report having been written by WPC 3513 Hayes. In the report WPC Hayes mentioned that Mrs G, “ has numerous carers from three care agencies coming in – she has carers four times a day – and they are not always the same carers due to holidays, sickness, etc etc.” Later in the report WPC Hayes stated as follows:-

“Mrs G kept repeating that Angie had taken her money – when I asked her why she thought this, she seemed confused, and mumbled something about that it must have been her as now she has more money, now that Angie has gone.  (I feel that the influence of some of the carers may have something to do with this!).

I don’t think that it would be of any benefit for the investigation if a statement/statement on tape was completed. Mrs G has no evidence that Angie is responsible for the missing money. If Angie was to be questioned about this incident, then there would be a need to question all of the carers that visited Mrs G over the same period.”

The Appellant said that she had been one of the carers visiting Mrs G, but that she had not taken £69 from her.

28.    The evidence from Mrs CCW was that at this stage a decision was taken by Greenbanks to set a trap in order to establish once and for all whether the Appellant was behind the recent thefts. It was decided to involve a service user Ms QW who was a client with dementia, a particularly vulnerable service user and the proposed plant was agreed with her daughter as her next of kin.

Mrs CCW’s evidence was that she had been told that she needed to take someone with her as a witness to make the plant.  Ms SL was the only person available. Mrs CCW had previously photocopied the bank notes that were intended to form the plant, there were five notes in number, 2 five pound notes and 3 ten pound notes. The serial numbers on the notes were recorded in advance. Mrs CCW and Ms SL attended Ms QW’s house on the afternoon of the 5th March 2005 and placed the £40 in Ms QW’s kitchen drawer where her medication was kept. The reasoning being that Mrs CCW considered that the Appellant would need to go into the drawer.

29.      After having planted the £40 in Ms QW’s home, Mrs CCW and Ms SL left and returned an hour later having been informed that the Appellant had been and gone. Mrs CCW and Ms SL looked in the drawer where the notes had been placed and noticed that the notes had been moved and that one of the £10 notes was missing. The Appellant had been asked to return to Greenbanks office on the pretext that she was required for a supervision meeting with her team leader.

Ms SL confirmed that she had accompanied Mrs CCW to plant the £40 and had witnessed £10 having gone missing when they returned. Ms SL stated that when she had returned to the Greenbanks office, she had noticed the Appellant’s car parked outside and a £10 note folded up on the dashboard.  She had then reported this to Mrs CCW.

The Appellant was interviewed at the Greenbanks office by Mrs CCW and another Greenbanks employee Mr RL. The Appellant was told about the trap that had been laid at Ms QW’s, and she was asked whether she had any £10 notes. Mrs CCW gave evidence that the Appellant had said that she was not sure and that her handbag was in her car and that she would go and check. The Appellant was accompanied back to her car and Mrs CCW had asked to see the £10 on the dash board, which she said was quite visible. When asked about the £10 the Appellant is reported as having said that it was not hers, but that it was her sister’s. The serial number on the £10 note was compared with the serial numbers from the planted notes and it was shown to be one of them. It was put to the Appellant that she had taken the £10 note from Ms QW’s house. 

Mrs CCW told the Appellant that she no longer had a job and that any property that she had belonging to Greenbanks should be handed over. In the course of doing this the Appellant produced a pension book belonging to another service user Ms RW. The explanation given by the Appellant was said by Mrs CCW to have been that the Appellant had intended to cash it for Ms RW in the next few days. The Appellant had not given Ms RW a receipt, because she did not have any to give out.

In her written witness statement Ms CC stated that she had gone to see Ms RW the following day to return her pension book. On the visit Ms CC had enquired whether Ms RW had banked the large amount of money that she had collected from her pension the previous month. On being told by Ms RW that she had not Ms CC examined the envelope in which the money was said to have been placed and found there was only £120. Ms RW said that she had not spent any of the money that she had brought home from the post office and there should have been just under £1000 in the envelope.

30.   The Appellant said that the 5th March was the anniversary of her father’s death and that she had gone to the crematorium on that date with her sisters. She had received a number of telephone calls during the course of the day from Ms CC asking her to cover Ms QW’s tea time visit. The Appellant had agreed to do the visit with some reluctance, particularly given that her son was unwell. The Appellant in her police interview stated that in her conversations with Ms CC, she had been told that Ms QW needed to eat some food. When the Appellant had attended Ms QW’s she had tried to persuade her to have something to eat and had offered her a bowl of soup, but Ms QW had only had a little of the soup. The Appellant had then gone to fetch Ms QW’s pills from the kitchen drawer and that in doing so had noticed some money in the drawer. She had then offered to go to Tesco’s to buy some microwave meals to have in the fridge. When Ms QW had said that she had no money the Appellant had said that there was some money in the kitchen drawer and Ms QW had told her to take some of the money and go to Tesco’s and buy some shopping. The Appellant had told Ms QW that she would take £10 of the money.

The Appellant had said in her witness statement that she had been present with Ms QW on a previous occasion when a District Nurse had been in attendance and the Nurse had said that Ms QW should be eating more substantial food. 

Whilst at Ms QW’s on the 5th March, the Appellant had received a telephone call from Ms CC telling her she was urgently needed back at the office and accordingly the Appellant had decided to go to the office first and then go to Tesco’s afterwards. The Appellant gave evidence that she had not given Ms QW a receipt for the £10 as she intended to go out and buy the food immediately. She had put the £10 note folded up in an indentation on her car dashboard, in order to keep it separate from her own money. On reaching Greenbanks office she had been asked to fetch the £10 from the dashboard which she had duly done and handed to Mrs CCW. The Appellant confirmed that she had said that the £10 belonged to her sister, the explanation given by the Appellant was that she realised that she had not given Ms QW a receipt for the £10 and she had panicked and said the £10 belonged to her sister. She had been given some money by her sister earlier in the day, some £30, which she had placed in the glove box of her car. The Appellant stated that it had not been her intention to steal the £10.

31.   When interviewed by the police the Appellant is recorded as having said that Ms QW had told her where the £10 was. The Appellant told the Tribunal that she had been confused when she had said that.

In terms of why she had Ms RW’s pension book in her possession on the 5th March, the explanation that she had given to the police was that on a previous visit to Ms RW and Ms MW she had been asked by Ms RW to help her cash her pension and had originally picked up the pension book and put it in her folder. However being aware that she was not supposed to keep service users’ pension books she had intended to give it back before leaving, but had forgotten to do so. In her witness statement in these proceedings the Appellant stated that she had not realised that she had the pension book.

32.    It was suggested during the hearing that a possible motive for the Appellant allegedly taking money from service users was as a result of her financial difficulties. The principal evidence of any such financial difficulties was set out in the witness statement of Ms CC who said that the Appellant had frequently told her about her financial problems. Ms CC also stated that the Appellant had told her that she had organised a 40th birthday party for her husband at a cost of around £300 and had work done to her garden. Ms CC also commented that the Appellant always had £20 top up cards for her mobile phone. The Appellant denied that she had told Ms CC that she was struggling financially, she had organised a party for her husband but had only spent about £30 and that the garden work was done by family members.  As far as the phone was concerned she normally only put £5 on.

The Tribunal were also shown the Appellant’s rent statements with Winchester City Council, in particular that a payment had been made of £500 on the 27 February 2004 and a further payment of £200 around the same time. The Appellant said that she had paid money off her rent account but that she had borrowed the money from her sister, Christine Few, who had taken a loan out of £700.

Christine Few gave evidence and confirmed that she had lent the Appellant £700 having had £300 available in cash and taken out a loan for the balance of £400. She had paid the £700 in cash to her sister on the 27th February 2004, the agreement being that the Appellant would repay her in instalments.

33.    The Tribunal were told by the Appellant that she believed that other carers at Greenbanks wanted to get her dismissed. The Appellant took her job seriously and gave the service users that she worked with extra time, which they enjoyed. She believed that some of the other workers at Greenbanks saw her as a threat. There had been a meeting of some of the carers around the time that she had been suspended and three of the carers had threatened to leave Greenbanks if the Appellant was reinstated.

Ms SL told the Tribunal that two of the carers Ms MN and Ms AC disliked the Appellant and wanted to see the back of her. Ms SL accepted that a lot of the complaints regarding the Appellant came from Ms MN originally.

Mrs CCW had said that a number of the carers had wanted Greenbanks to take action against the Appellant, but had been told that Greenbanks needed proof. Three of the carers, Ms MN, Ms SR and Ms AC threatened to leave if the Appellant came back after suspension.  This was a comment made after a meeting of carers at which the Appellant was not present. Mrs CCW went on to say that carers’ meetings were supposed to be on a monthly basis and she was surprised that the Appellant had said that she was not aware of such meetings. Mrs CCW accepted that Ms MN, Ms SR and Ms AC had a personal dislike of the Appellant and probably wanted to see the back of her.

34       The Appellant was dismissed by Greenbanks for Gross Misconduct.  A referral was subsequently made by Greenbanks to the POVA list on the 28th September 2004.  The Appellant was provisionally included on the POVA list. On the 16th November 2005 the Appellant was confirmed on the POVA list.

35       On the 7th June 2004 the Appellant was charged with two counts of theft. The first count being that between the 15th February and the 17th March 2004 she had stolen money belonging to Ms RW namely £1000. The second count of theft was that the Appellant had stolen £10 belonging to Greenbanks.  A trial took place at Winchester Crown Court on the 18th October 2004, and the Appellant was acquitted in respect of the theft of the pension monies from Ms RW. The jury could not reach a verdict on the second count of theft and as a result a re-trial was ordered. That re-trial eventually took place in the Bournemouth Crown Court on the 21st March 2005 when the Appellant was acquitted of the second count.

36.    Since April 2004 the Appellant has been employed at Park House Care Home initially as a carer, but since being placed on the POVA list she has been doing kitchen duties. The Tribunal had sight of witness statements from the owner of Park House Care Home, Patricia Walton-Masters, from the son of one of the residents, Richard Anstruther and also from the current manager Veronica Robinson.  Patricia Walton-Masters described the Appellant as being, “reliable, trustworthy and honest” and Mr Anstruther stated that, “she did a wonderful job making my mother’s last days comfortable. “

Veronica Robinson gave oral evidence to the Tribunal and stated that she rated the Appellant very highly and in her view the Appellant was one of the best carers that they had employed. She had empathy with the residents, saw her role as being more than just a job and was prepared to go the extra mile to help. Ms Robinson said that she had been aware of the criminal proceedings and the present case and would be happy to re-employ the Appellant as a carer in the future if that were possible. There had been some difficulties between the Appellant and other staff in the early days because the Appellant was so conscientious and this caused some friction. The Appellant did so much work that this sometimes showed up the other staff. The Appellant had resolved the matter herself, supported by Ms Robinson.

The Findings of the tribunal on the evidence

37.	The Appellant applied for a job with Greenbanks as a carer, but initially wanted to do domestic duties only.  She had a background in child minding and cleaning.  The Tribunal was provided with considerable evidence in relation to the induction information that was said to have been provided to the Appellant. This information included various documentation which was said to have been given to the Appellant including details of Greenbanks policies, procedures and guidelines, as well as a code of conduct for care staff and a care record book policy.  A carers’ checklist signed and dated by the Appellant was produced in which receipt of various policy documents was acknowledged.  

38.	The Appellant’s evidence was that she had been given blank forms to sign and had not received all of the documentation. Further there had not been a proper induction, having been carried out on an informal basis by Ms KM.  Ms SB’s evidence was that the induction and training regime at Greenbanks had changed since the Appellant had been inducted.  There were now a lot more policies that needed to be gone through and since 2004, Greenbanks had a dedicated training officer.  The induction process now lasted 3 days.  

The Tribunal did not have the benefit of a witness statement from Ms KM or hearing oral evidence from Ms KM.  Whilst we acknowledge that the Appellant did sign to say that she had received copies of various policies, we consider that on a balance of probabilities, given the training regime in operation at Greenbanks at the material time, that if policies were discussed with the Appellant it was likely to have been on a very superficial basis, particularly given the type of work that she was interested in carrying out, namely as a domestic.  There have clearly been improvements in Greenbanks practice since the Appellant was recruited, particularly as it seems that the Appellant was allowed to start work before police checks were completed. Moreover no thorough examination was made to identify discrepancies between the information given in her application form and the supporting documents provided. 

39.	The Respondent at the outset of this appeal sought to establish that the Appellant was guilty of misconduct causing harm to vulnerable adults, by being involved in a number of instances of theft from vulnerable adults in her care.  A schedule was provided setting out 12 incidents involving Mr. M, Mrs. M, Mrs. B, Mrs. C, Mr. and Mrs. T, Mr. D, Mrs. B, Ms RW, Mrs. G, Ms QW, Mrs. W and Mrs. R.  In a footnote to the schedule the Respondent stated as follows: -

“By far the most significant incidents are numbers 8 and 10 and the majority of the evidence will relate to these two matters.  However, the Secretary of State is of the view that the other 10 incidents are relevant to the issues before the Care Standards Tribunal in this case.”

Instance 8 related to Ms RW and the withdrawal of over £1000 on behalf of Ms RW from the Post Office and allegedly stealing the majority of the money.  Instance 10 related to the allegation of having stolen £10 belonging to Greenbanks from the home of Ms QW.

In submissions at the end of the hearing, Mr. Sharland on behalf of the Secretary of State indicated that he was only seeking a finding of fact from the Tribunal in relation to the taking of £10 from Ms QW’s home intending to steal the same and the failure to give a receipt for the money.  In order to reach a conclusion on this incident we do consider it necessary to look at the Appellant’s conduct towards other vulnerable adults and her general credibility.

40.	In the case of Mr. M there is no direct evidence that any money went missing.
 
As far as Mrs. M is concerned the carer Ms MN reported that Mrs. M was unable to find her handbag and purse, however no specific allegation was made that the purse or handbag had been taken by the Appellant.

 In the case of Mrs. B, an allegation was made that the Appellant had taken a purse containing about £40, that allegation having been made by a neighbour.  Considerable doubt was cast on whether or not the purse had in fact gone missing by Mrs. B’s godson, who is recorded as making a call to Greenbanks to the effect that he was sure that the purse was mislaid.  The police had been involved and no action taken.  We consider that there is considerable doubt as to whether the purse in question was stolen and secondly, there is no evidence to suggest that the Appellant, as opposed to any other person who had access to Mrs. B’s house, took the purse.

There is limited information available in the case of Mrs. C where the allegation was that two sums of money had gone missing; £80 and £20.  It is unclear when the money is said to have gone missing and the Appellant was not the only carer who had visited Mrs. C.  Again we find there is insufficient evidence to establish that the Appellant had stolen money from Mrs. C.

We turn next to Mr. and Mrs. T; this was an allegation against the Appellant which was effectively withdrawn during the course of these proceedings, following an amendment to Mrs. CCW’s witness statement.  It had originally been thought that pound coins had gone missing from Mr. and Mrs. T’s house, but it transpires that this was an observation made by one of Mr. and Mrs. T’s carers and not an accusation against the Appellant.

The situation in relation to Mr. D did not involve cash as such, but the taking of a watch.  The Appellant accepted that she had taken the watch, but said that it was at Mr. D’s request in order to have the watch mended.  The Appellant had not given him a receipt, having checked the position with the manager of the home where Mr. D was a resident.  We did not hear from the manager of the home in evidence, the Appellant did however go back at a later stage to obtain a receipt from the manager, a copy of which was included within the Tribunal papers.  

Ms SB in her evidence said that the taking of a watch was not a money transaction and therefore a carer was not required to give a receipt under Greenbanks policies dealing with “Handling Clients Money”, nevertheless we take the view that it should be a matter of commonsense when for whatever reason a carer takes into custody any property belonging to a service user, whether that is money or valuables, then a receipt should be given. In this case the Appellant stated that she had checked the position with the manager of the home and copies of subsequently obtained receipts were provided.  It seems to us unlikely that such receipts would have been produced if it was not the practice of the home to give receipts.  As far as any intention to take the watch permanently is concerned we cannot find any evidence to support this contention.  

Mrs. B is said to have made an allegation via another carer namely Ms AC, that the Appellant had borrowed £135 from her and also that the Appellant’s husband had decorated Mrs. B’s house and been paid £100.  In relation to the borrowing of money this was something that the Appellant denied.  We did not have the benefit of hearing evidence direct from Mrs. B in relation to the alleged loan and as there is nothing by way of corroboration to suggest money was loaned to the Appellant we do not find this allegation  proven.  As far as the decorating is concerned, it was accepted that Mr. Pain had done some work for Mrs. B, although the Appellant’s evidence had been that this had been requested of Mr. Pain by a mutual friend of Mrs. B and Mr. Pain’s.  In oral evidence the Appellant indicated that she had herself at one point asked her husband and that if he had agreed to do the work, she would have reported the matter to the office.    

41.	We have looked afresh at the evidence in respect of all of the above matters and do not find any wrong-doing on the part of the Appellant.  We also take into account the fact that these allegations were considered at a disciplinary hearing held at Greenbanks on the 5th December 2003 and not found to be proven against the Appellant.  

42.	It was implied during the hearing that because there were so many allegations regarding the Appellant at this time, this had to be more than coincidence, .and should at least cast doubt on the Appellant’s conduct. The Appellant gave evidence that a number of other carers employed by Greenbanks disliked her and were trying to obtain her dismissal and that a number of the complaints that were made came through those carers.  Although we did not hear from the carers concerned, Mrs. CCW in her evidence said that three of the carers Ms MN, Ms SR and Ms AC had a personal dislike of the Appellant and in the view of Mrs. CCW probably wanted to see the back of her.  They had threatened to leave if the Appellant returned to work after the disciplinary hearing.

The suggestion that other members of staff “had taken” against the Appellant is to some extent made more plausible by the evidence of Veronica Robinson, the Appellant’s current manager who stated that when the Appellant had first started at Park House Care Home there had been difficulties with other staff, because the Appellant was so thorough with her work and showed up other members of staff.

43.	One of the central issues in this appeal was the question of giving receipts, particularly in circumstances where client’s money was taken to buy shopping or for some other purpose or goods taken.  The Greenbanks policy is that a receipt should always be given when client’s money was taken, from a receipt book provided for carers or if for any other reason a carer did not have their receipt book immediately available, then a note should be endorsed on the clients care plan.  There was some doubt as to whether or not the Appellant had been given a receipt book at the outset of her employment with Greenbanks or was familiar with the policy in this regard.  However, it was accepted by the Appellant that following the disciplinary hearing in December, she was fully aware of the circumstances in which receipts should be given.  

44.	Mrs. G had made an allegation that £60 had been taken from her purse at some point between Saturday 28th February and Monday 1st March 2004 from her home address.  This was an allegation that was investigated by the police and we had sight of the investigating officer’s report.  It was also established that Mrs. G had numerous carers with 3 care agencies visiting her and there was no evidence that the Appellant was responsible for the missing money.  On this basis we cannot find any wrong-doing by the Appellant.  

45.	In relation to Mrs. W it was suggested that the Appellant had taken a duvet for herself that was intended to go to a charity shop and further that she had not given a receipt. Ms SL in her evidence said that she accepted that the Appellant had not kept the duvet.  The Appellant herself gave evidence that she had taken it to an Oxfam charity shop.  In her written evidence to the police, Ms SL had indicated that carers were aware that it was the procedure when taking items to charity shops for clients, that they should obtain a receipt.  However, in oral evidence at the tribunal hearing Ms SL confirmed that the Greenbanks procedures and policies in existence at the time did not specify obtaining a receipt for goods.  Again we find no evidence to establish that the Appellant took the duvet for herself and we accept her version of events that she did take it to the charity shop. Nevertheless it would have been sensible to obtain a receipt from shops when dealing with goods belonging to vulnerable adults.  

46.	The original complaint in respect of Mrs. R appears to have come from another carer, possibly Ms MN, the note in the file says that Mrs. R was subsequently visited by Ms SL and that Mrs. R told Ms SL that a carer namely the Appellant had taken money from her.  Mrs. R subsequently made a witness statement to the police dated 30th March 2004 in which she indicated that £10 and £30 and some toilet roll had gone missing and she had suspected the Appellant of having taken these.  However, she indicated due to her age and frailty she did not wish to attend court.  In a meeting on the 5th March 2004 with herself, Ms MN and Mrs. CCW, Mrs. R had indicated that she didn’t want the police involved but simply wanted to ensure that the Appellant did not call on her again.  

Mrs R in her statement to the police indicated that she had a private cleaner as well as carers provided through Greenbanks all of whom could let themselves into her house by pulling a key on a string through the letterbox.  The list of carers provided by Greenbanks visiting Mrs R totalled some 10 people in addition to the Appellant. Again there is no direct evidence to establish that the Appellant took money from Mrs. R and there were a large number of people visiting Mrs R’s home.  We did not have the opportunity of hearing direct from Mrs R and therefore although we attached some weight to her witness statement, given the Appellant’s denial it is not in our view sufficient to establish wrong doing on behalf of the Appellant.  

47.	One of Greenbanks clients visited by the Appellant was Ms MW who lived in the same house as her sister Ms RW.  It is accepted by the Appellant that she took Ms RW on the 16th February 2004 to the Post Office to cash her pension, which produced a sum in excess of £1000.  It is accepted by Greenbanks that on the same day the Appellant attended their offices and reported that she had been given a plant by Ms RW and also that she had accompanied Ms RW when she had cashed her pension and that Ms RW had kept a large amount of cash in her home.  At the time the Appellant went with Ms RW it would appear that Ms RW was not a client of Greenbanks, although she subsequently became one.  It was however accepted by Mrs. CCW in evidence that it was not unusual for carers to look out for the interests of clients’ partners, at the same time as looking after the clients themselves.  Although on this occasion it might be said that the Appellant had gone beyond what was expected of her, but this does not constitute misconduct.  Subsequently it would appear that a large proportion of the £1000 drawn out by Ms RW went missing from her home.  The Appellant was a suspect, but it appears that the only reason for that suspicion was that the Appellant was aware that Ms RW had money in the house.

This was one of the matters on which the Appellant faced criminal charges in respect of which she was subsequently acquitted.  We accept that in these proceedings we are operating to a lower standard of proof than in the criminal proceedings, but nevertheless we still cannot find any direct evidence to suggest that the Appellant took money from Ms RW.  The precise time the money went missing is unknown and there were other visitors to the house.  Moreover it seems to us inconsistent that the Appellant should have reported to Greenbanks the fact that she had gone with Ms RW to cash her pension, if it was her intention to subsequently steal some or all of that money from her Moreover the suggestion that the money the Appellant used to pay her rent arrears could have been stolen from Ms RW had little credibility in the light of the evidence from Christine Few about the amount and timing of her loan to her sister.  We are therefore not satisfied that Angela Pain took money from Ms RW.  

48     There is another connected issue in relation to Ms RW namely that the Appellant was on the 5th March 2004 found to have in her possession Ms RW’s pension book.  Although there was some discrepancy between the version of events given by the Appellant when interviewed by the police, to that given in these proceedings, nevertheless the pension book was voluntarily given to Greenbanks by the Appellant. As far as we are concerned there is no compelling evidence to establish that the Appellant intended to retain the pension book and to use it to obtain cash for herself. This in circumstances where we had evidence that carers did assist clients in obtaining their pensions.  We are concerned however that  the Appellant, having taken the pension book possibly with Ms RW’s consent, that a receipt was not given or an endorsement made on the care plan, as it would appear that by this time Ms RW was a client of Greenbanks. 

49.	We turn to the principal matter on which the Respondent now relies, namely the allegation that the Appellant took £10 from Ms QW’s house, being money belonging to and planted by Greenbanks. It is not disputed that the Appellant took £10.  What is in issue is whether she intended to steal the money and the fact that she did not give a receipt.
It is said on behalf of the Respondent that the Appellant’s explanation is not credible and her evidence on this issue should not be believed.  Firstly, that she lied when confronted with the £10 note at Greenbanks offices, by saying that it belonged to her sister and secondly she was shown at various points during the proceedings to have given more than one explanation of various events that had occurred whilst she had been working at Greenbanks. It is also suggested that she had financial problems at the time.  Further that there had been lots of allegations of theft made against her prior to this particular incident. 

We were given as examples of the Appellant not having told the truth, the fact that she had indicated in her application form that she had no endorsements on her driving licence, but in reality she had an endorsement for having no insurance. Secondly, there were several examples in her interview with the police where the information she gave on that occasion was different from the information she gave in these proceedings, for example having said that Ms QW had told her that there was money in her drawer, when clearly that cannot have been the case because Ms QW was not aware of the “plant”.  The explanations given by the Appellant were that she had overlooked the endorsement on the licence and that when she was at the police station she had been confused and found the whole experience daunting.  In relation to the £10 she had panicked when asked about the note on her car dashboard and she did have money in her glove box from her sister.  
We take into account the inconsistencies in the Appellant’s evidence and the fact that she did not tell the truth about the £10 when originally confronted.  However in our view this needs to be seen in context.  In respect of the endorsement, her driving licence was submitted at the same time as the application form.  If it was an attempt to deceive Greenbanks it was going to be something that was going to be very quickly discovered and therefore we think that it is possible that the Appellant did not read the application form with sufficient care.  As for the police interview we accept that the Appellant, who was not represented at the interview, could have been confused.  As far as the explanation given to Greenbanks regarding the origins of the £10 note on her dashboard are concerned, again it seems unlikely on a balance of probabilities that if the Appellant were intending to steal the £10 she would have left the note in full visibility on the dashboard of the car rather than mixing it in with her own money.  That in our view is not consistent with the actions of someone who intends to steal money.  Again we note that this was a matter on which the Appellant faced criminal prosecution and was acquitted, we taking into account that we need to be satisfied on a lower balance of proof, but nevertheless for the reasons already given, we are not satisfied that the Appellant intended to steal the £10. 

The remaining issue is the question of her failure to give a receipt for the £10. The Appellant was by this stage fully aware of the need to give receipts, but she nevertheless adopted a somewhat cavalier attitude in respect of the need to do so as is evidenced by her conduct with other service users. However on this occasion it again needs to be seen in context.  This was a situation where the Appellant had been contacted on the day in question a number of times by telephone to ask her to cover Ms QW’s visit on a day when she was visiting the crematorium.  She had also been told that it was important that Ms QW should be given food.  In those circumstances it is perhaps not surprising, given what we have learnt during these proceedings about the Appellant that she should take it upon herself to go and fetch food for Ms QW, given that Ms QW did not want to eat all of the soup that was prepared for her. It was a trap that the Appellant was almost bound to fall into. The Appellant was in a rush and we were told that one of her children was unwell and she had been told that she was urgently required back at the Greenbanks office.  Whilst it is undoubtedly true that a receipt should have been given, we are prepared on balance to accept her explanation as to why this did not happen.  

Therefore we accept that the Appellant did intend to use the £10 to buy food for Ms QW and did not steal the money and that there was a reasonable explanation as to why a receipt was not given. 
In reaching this conclusion we also considered whether or not the Appellant had a motive for stealing the £10.  It was suggested that she was in financial difficulties.  The principal evidence for this proposition came in the witness statement of Ms CC who made reference to being told that the Appellant was in financial difficulties and that she was spending significant amounts of money, examples that were given were of the birthday party organised for her husband, work carried out to their garden and mobile phone top ups.  We did not have the benefit from hearing from Ms CC and therefore attached little weight to her witness statement in circumstances where this was denied by the Appellant. The explanation given by the Appellant as to the source of the monies used to pay rent arrears was supported by Christine Few, who we found to be a very credible witness. 

The Law

50       Section 86 (1) of the Care Standards Act 2000 (“the Act”) states as follows:-

“An individual who is included (otherwise than provisionally) in the list kept by the Secretary of State under Section 81 may appeal to the Tribunal against:-

(a)	the decision to include him in the list …

Section 86 (3) states that:-

“If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely:-

(a)	that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult and 
(b) 	that the individual is unsuitable to work with vulnerable adults

the Tribunal shall allow the appeal or determine the issue in the individual’s favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual’s inclusion in the list. 

Conclusions

51.	As indicated in Section 86 (3) above the reaching of a decision in this case is a two part process.  Firstly we need to consider whether or not the Appellant was guilty of misconduct which harmed or placed at risk of harm a vulnerable adult.  The burden of proof is on the Respondent to establish misconduct on a balance of probabilities.  The only finding of fact that we were asked to make by the Respondent in this case was in relation to the £10 taken from Ms QW by the Appellant. In forming a view of the Appellant’s conduct in this matter we were effectively asked to look at the history of her employment with Greenbanks and the various allegations that had been made against her in respect of other service users.  We are also asked to take into account the explanations given by the Appellant.

52     A number of allegations were considered by a disciplinary hearing conducted by Greenbanks staff in December 2003, in respect of which no findings were made against the Appellant of misconduct.  We have considered afresh the evidence in relation to those matters and have come to the same conclusion. 

53.     We have also considered events after the disciplinary hearing involving, Mrs. G, Mrs. W and Mrs. R and again have concluded that there was no misconduct by the Appellant. 

54     As far as Ms RW was concerned we have found that the Appellant did not steal money from her and that her failure to give a receipt for her pension book was technically not in breach of Greenbanks policy, although common sense should have dictated to the Appellant that a receipt should have been given, but a failure to do so in these circumstances does not amount to misconduct.

55.     That then brings us the question of Ms QW.  After having considered all the evidence we have concluded that whilst the Appellant took £10 from Ms QW, being money belonging to Greenbanks, it was not with the intention of stealing.  In this case a receipt clearly should have been given, but we consider that there were mitigating circumstances which provided an explanation as to why that had not happened. 

56        Therefore having concluded that the Appellant is not guilty of misconduct which harmed or placed risk of harm a vulnerable adult, it is not necessary for us to consider the second part of the test, namely whether the Appellant is suitable to work with vulnerable adults. 

Accordingly our unanimous decision is:-

APPEAL ALLOWED

Mr. S A Hunter (nominated Chairman)
Ms Geraldine Matthison
Mrs Sallie Prewett