Smoller v The Secretary of State for Education and Science [2007] EWCST 862(PC) (13 July 2007)

CARE STANDARDS TRIBUNAL
0862.PC
0863.PVA

STEVEN SMOLLER

-v-

SECRETARY OF STATE FOR EDUCATION AND SCIENCE

[2006 862.PC]
[2006 863.PVA]

Before:

Mr. Andrew Lindqvist (Nominated Chairman)
Mr. Michael Flynn
Mr. David Tomlinson

Heard on the 25th, 26th, 27th and 28th June 2007 at the Assembly House, Norwich.

The appellant was represented by Mrs. Donna Carty

The respondent was represented by Mr. Jeremy Hyam

DECISION

1.  Mr. Steven Smoller appeals by an amended notice dated the 21st December 2006 against his inclusion by the Secretary of State in three lists, i) the list of individuals who are considered unsuitable to work with children kept under section 1 of the Protection of Children Act 1999, (“the PoCA list”)  ii) the list of individuals who are considered unsuitable to work with vulnerable adults, kept under section 81 of the Care Standards Act 2000, (“the PoVA list”) and iii) the list known as “List 99”, which includes individuals subject to a direction under section 142 of the Education Act 2002 that they may not carry out specified work such as teaching. The appeal in respect of “the PoCA list” arises under section 4 of the 1999 Act, the appeal in respect of “the PoVA list” under section 86 of the 2000 Act. The appeal in relation to “List 99” requires no separate consideration because Mr. Smoller’s inclusion in that list was a consequence of his inclusion in “the PoCA list”, so if his first appeal succeeds he will automatically be removed from “List 99”.

Interlocutory matters

2.  On the 22nd March 2007 the President gave directions about steps to be taken to prepare the appeal for hearing, including the appointment by agreement of Dr. Peter Taberner, B.Sc., M.Sc., Ph.D., a consultant forensic pharmacologist, as expert witness.

Reporting restriction

3.  No application was made at the hearing of the appeal for a direction under regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002. The matter was considered briefly and in the absence of any application the Chairman decided to make no order. The question was raised again by the respondent’s solicitor in a letter after the hearing had ended. No particular circumstances were cited as making such a direction desirable save that the appellant, who continued to live in Norwich, had a relatively unusual surname. The Chairman’s decision remained that there were no circumstances to justify any order under regulation 18.  

Background

4.  Mr. Smoller, an American, then living in New York, responded in 2004 to a recruitment drive carried out by TTM Recruitment on behalf of Suffolk County Council. There is a shortage of social workers in Suffolk and in many other local authority areas and overseas recruitment is one of the methods used to meet the shortfall. Suffolk County Council had previously recruited from Zimbabwe and Romania; the U.S.A. was a new field suggested by the agency.

5.  TTM Recruitment drew up the long list of candidates, obtained curricula vitae and carried out background checks. Officers of Suffolk County Council, together with TTM Recruitment drew up the short list and some twenty candidates were interviewed in New York at the end of 2004.

6.  Mr. Smoller completed a form called an Interview Checklist in which he said that thirty years ago he had been cautioned due to alcohol and substance abuse and had, between 1981 and 1988 been “homeless and in recovery programme”. He also completed a job application form in which he included “eight minor infractions/warnings related to past substance abuse”, said that his last encounter with the legal system was in 1988 and that all his offences were “minor property crimes”.

7.  A reference provided by a Mr. Anthony Assent, a Senior Specialist and Assistant Director of Social Services in New York, spoke of Mr. Smoller’s skill, honesty, hard work and self-discipline. Professor Neil Cohen of California State University in Los Angeles wrote of Mr. Smoller’s academic excellence and successful internship.

8.  By a letter from Suffolk County Council dated 16th December 2004, Mr. Smoller was offered a job as a social worker subject to a probationary period of six months. He signed the acceptance on the 28th December and returned it; it is stamped as received on the 6th January 2005. 

9.  On the 28th December 2004, Mr. Smoller also signed a Health/Disability declaration. The first question asks for details of any disability or treatment that could have an impact on ability to carry out the job offered. Mr. Smoller answered that question with “NONE”.

10. Subsequent to his appointment further enquiries were made of Mr. Smoller and at the end of February 2005 he sent an e-mail with details of four convictions for petty theft and one for burglary of commercial premises. The last conviction was on the 15th  February 1988 and Mr. Smoller explained that the proceeds of these offences funded his then dependence on crack cocaine.

11.  Mr. Smoller arrived in the U.K. on the 1st April 2005. His wife, who is known as Mrs. Carty and acted as his representative at the hearing of his appeal, came with him. He started work on the 4th April 2005 but unfortunately his work with Suffolk County Council was never a success.

12.  At the end of May, a number of residents in Lowestoft complained of suspicious activities by a man generally answering Mr. Smoller’s description, driving a silver car. Some gave, completely or in part, the registration number WN05 OYP. That was the number of a silver Ford Mondeo hired by Suffolk County Council for Mr. Smoller’s use.

13.  In or about early June 2005 Mr. Smoller bought a ticket to fly from Heathrow to Madrid. He boarded the plane but changed his mind, had his luggage taken off and set off home. On the way home he changed his mind again and returned to Heathrow. A further change of mind took him back home. A few days later, on the 6th June, Mr. Smoller flew to New York where he stayed one night and returned home the next day.

14.  On the 13th June, Ms. Samantha Cook, who was subsequently married and is now Mrs. Lake, complained that she had seen a man masturbating in his car near her flat on the Heartsease Estate in Norwich. She subsequently picked out Mr. Smoller at an ‘identity parade’ conducted by means of video recordings. Mrs. Lake telephoned her friend Mrs. Abdelaoui to tell her what she had seen.

15.  Mrs. Abdelaoui recalls Mrs. Lake’s telephone call. A few days later she was walking with two young children in the area when she noticed a silver Ford Mondeo driven slowly ahead of her. As she came up to the car, it was driven a short distance then it slowed or stopped. It repeated the manoeuvre on a number of occasions until it was driven off. The car then evidently went round the block and Mrs. Abdelaoui saw it again, this time stationary. She noted the registration number by writing it on her hand, went home, telephoned the police and copied the number from her hand onto a piece of paper since lost or destroyed. It was Mrs. Abdelaoui’s report of the registration number that led the police (via the car hire company) to Mr. Smoller.

16.  Mr. Smoller was arrested on the evening of the 26th June 2005. He was subsequently charged, elected trial at the Crown Court and appeared there on the 9th December 2005, when the prosecution offered no evidence against him and an acquittal was directed.

17.  In the course of their enquiries into the ownership of the silver Ford Mondeo, the police contacted Suffolk County Council, who thus became aware of Mr. Smoller’s arrest for an offence of indecency. A strategy meeting was convened on the 29th June, it considered the allegations against Mr. Smoller, both in respect of the suspicious behaviour in Lowestoft at the end of May and the alleged indecency on the 13th June (there is some doubt about the date – the 16th also appears in some of the papers) and it was decided that Mr. Smoller should be suspended from duty.

18.  A disciplinary hearing was held on the 19th August 2005 at which it was decided that Mr. Smoller should be dismissed. His dismissal was confirmed by a letter dated the 22nd August. He appealed against his dismissal but shortly before the hearing, which was set for the 13th October 2005, Mr. Smoller, having taken advice from a solicitor, abandoned his appeal, thus bringing to an end his short and unhappy career as a social worker in the U.K.

The appeal hearing

19.  Mr. Smoller’s appeal was heard at the Assembly House in Norwich on the 25th, 26th, 27th and 28th June 2007. He was represented by his wife, Donna Carty. Mr. Smoller himself appeared only to give evidence and was not otherwise present during the hearing, but he gave his wife a written and signed authority “to make any and all decisions in my case before you this week. She is my full and authorised representative in all matters and decisions concerned with my case with no restrictions.”

20.  Mr. Jeremy Hyam, who appeared for the Secretary of State, submitted in advance a helpful opening statement in which he suggested that it would be of assistance to clarify Mr. Smoller’s position in relation to the main issues as to which there appeared to be some doubt, not to say inconsistency. The three main issues were i) the alleged suspicious conduct in Lowestoft at the end of May, ii) the alleged offence of indecency on the 13th June and iii) an undisclosed dependency on codeine during Mr. Smoller’s employment with Suffolk County Council.

21.  Accepting Mr. Hyam’s suggestion, the Tribunal asked Mrs. Carty at the start of the appeal hearing what was Mr. Smoller’s position on those three matters. She said that he denied any misconduct in Lowestoft and denied the alleged indecency on the 13th June. He admitted that he had become dependent on codeine at the end of May 2005, though it was not a problem until then, and admitted that he did not tell Suffolk County Council about it but said that he had solved the problem without outside assistance other perhaps than that of his wife.

Undisputed matters

22.  In his opening submission, Mr. Hyam, accepting that the respondent, the Secretary of State, carried the burden of proof, set out what he had to prove, which put simply is a) misconduct, b) harm or risk of harm to a child or vulnerable adult and c) unsuitability to work with children or vulnerable adults. He submitted that those three elements were established by the admitted or undisputed evidence.

23. Those admitted or undisputed matters were the undisclosed dependency on codeine at or about the end of May 2005 and prevarication and inconsistency about the alleged masturbation incident (though the incident itself, as alleged, was denied). Also admitted were incidents of bizarre behaviour which may or may not have been the product of codeine dependency/excess consumption, though the admissions were less extensive than the allegations. 

Codeine dependency

24.  Mrs. Carty accepted that Mr. Smoller became dependent on codeine at or about the end of May 2005. Medical records introduced by agreement at the start of the hearing showed that a few years ago, in or about 2002, Mr. Smoller suffered a fracture of his right ankle. He made a good recovery after surgery but still suffered occasional pain. In May 2005 he began to take Nurofen Plus for such pain. Nurofen Plus is an over-the-counter medicine, the main constituents of which are Ibuprofen (an anti-inflammatory) and codeine (an opioid analgesic).

25.  Before long, Mr. Smoller was taking about twenty-eight Nurofen Plus tablets per day (a little over twice the maximum recommended dose of twelve). In June he went to his G.P’s surgery and Dr. Grunstein referred him to the Community Mental Health Team and to the Bure Clinic (alcohol and drug service) where methadone was prescribed to reduce and eventually eliminate Mr. Smoller’s opiate dependency.

26.  In October 2005 Mr. Smoller requested a reduction in his methadone from 50mgs/mls to 45. In March 2006 he was planning to reduce the methadone a little more and to embark on detoxification in May. In fact it began on the 28th April, loxefidine, diazepam and nitrazepam were prescribed. A report of the 28th May 2006 records insomnia and overuse of loxefidine. Another note of the same date records hyperagitation and desperate lack of sleep. On the 30th May Mr. Smoller was admitted to hospital (“sectioned”) as the result of an incident in which he stood naked outside his home, with a knife and fork, evidently with the intention of drawing attention to his distress. He was allowed home on the 8th June; his care plan mentions ‘bipolar affective disorder – manic episode’. His medication included zopiclone to help him sleep.

27.  A letter of the 17th July 2006 from Dr. J. Wilson – consultant psychiatrist, is encouraging about Mr. Smoller’s recovery and suggests reducing and stopping the zopiclone. A note of the 12th August records a telephone call for help with anxiety and panic attacks, a similar note on the 4th September refers to “strange thoughts”. On the 15th September an Assessment and Brief Intervention Team discussed alternatives to medication to combat anxiety “but Steven does see medication as a first line of treatment.”  Dr. Jones, in a letter of the 11th October 2006 says that Mr. Smoller’s condition is much improved and in a letter of the 7th November that he is to attempt a return to work and wants to reduce his zopiclone. Dr. Jones’s letter of the 19th December mentions a successful return to work and repeats the determination to reduce the zopiclone but Dr. Pannett (Mr. Smoller’s G.P.) says in a letter of the 9th February 2007 that he could not tolerate any reduction and was back on 15mg at night. A letter three weeks later suggests that Mr. Smoller had not been successful in reducing his zopiclone and had approached different doctors in the surgery to obtain benzodiazepines. It adds ominously, “His drug misuse problem would seem to be becoming a problem again.”

28.  Dr. Taberner gave evidence about the nature and pharmacology of zopiclone. There was little challenge to his evidence and none at all to his evidence about zopiclone. He said that it was not licensed for long-term use, official guidance suggested a term of about four weeks. It is a benzodiazepine type drug and dependence, likely to arise after about two months, is a major problem.

29.  In relation to codeine, Dr. Taberner said, again without challenge, that the plasma half-life of codeine was two to four hours, the effects of a single dose would persist for up to eight hours. Those effects included drowsiness and confusion. 

The masturbation incident – prevarication and inconsistency

30.  As has already been stated, the incident itself, as alleged, was denied. When he was arrested on the 26th June 2005, Mr. Smoller denied the incident. On the 8th August, in the course of an interview prior to the disciplinary hearing, Mr. Smoller said that he might have been doing “something of this nature that this woman saw”. He later admitted that it had happened but denied waving to the woman. Asked for an explanation as to why it had happened, Mr. Smoller said that he was looking for comfort and felt the urge to relieve stress.

31.  At the disciplinary hearing on the 19th August Mr. Smoller again denied masturbating in his car and said that he had admitted it on the 8th August because his wife had advised him to. The reason for that advice, as it appears from Mr. Smoller’s witness statement and evidence to the Tribunal, was that a denial would look like an obvious lie and that an admission would do no great harm. Mr. Smoller and his wife appeared to think the practice of masturbation in cars to be widespread in the U.K. as they contended it was in the U.S.A.

32.  When Mr. Smoller received details of Mrs. Lake’s allegations, he reverted to his original denial because he had had a free consultation with an employment lawyer who told him that he never should have admitted to anything.

33.  Mrs. Carty told the Tribunal at the start of the hearing that masturbation was denied, but in his evidence Mr. Smoller admitted such an act. He said that it was not in the place or in the circumstances described by Mrs. Lake, but in a secluded place where there was no risk of his being seen.

Misconduct

34.  As a social worker of some experience, Mr. Smoller must have been aware that he was expected to be part of a team, which could function properly only if its members exchanged between themselves and with their superiors information affecting the carrying out of the team’s work. His dependence on codeine at around the end of May 2005 very probably did affect his performance at work as he was taking a regular overdose and the effects of dependence include drowsiness and confusion. It is likely that that dependence contributed to, if it did not cause, the bizarre and pointless abandoned journey to Madrid and the brief trip to New York. The seriousness of the dependence is all too obvious from the duration and complexity of its treatment. The conclusion that Mr. Smoller’s failure to report the dependency was misconduct is inescapable. His answer, that he recognised his problem and dealt with it by himself, is plainly substantially untrue – the problem persisted for a very long time even after the cessation of his employment with Suffolk County Council and it required the concerted efforts of consultant, hospital, mental health team and general practitioner to deal with the problem.

35.  Mr. Smoller’s tactical admissions and denials in respect of the masturbation incident betray an almost cynical disregard for the truth. In the Tribunal’s view, in the context of the work of a social worker, that constitutes misconduct, for it is essential that a social worker is frank and honest with his colleagues and superiors about matters which do or could affect their work.

Risk of harm

36.  Such misconduct inevitably involves the risk of harm to a child or children and to vulnerable adults. Mr. Smoller is able to say that no actual harm to any child, children or vulnerable adult has been proved. The Tribunal was satisfied, however, on the balance of probability, that his codeine dependence placed at risk of harm the two children whom he transported in his car from Felixstowe to Woodbridge and back on the 27th May 2005. It was after completing those journeys that Mr. Smoller drove to Lowestoft and, for a while, drove aimlessly around the Tedder Road area, suggesting that on that day he was in a state of some confusion. The Tribunal did not accept that Mr. Smoller timed his codeine intake so that, during working hours, his performance was unaffected.

37.  Less directly but equally seriously, Mr. Smoller’s lack of candour and honesty was generally likely to place a child or vulnerable adult at risk of harm because honest exchange of information is essential to the proper working of any social care team.

Unsuitability

38.  This is a question which falls to be answered as at the time of the Tribunal hearing. If he did not admit at the hearing that he was unsuitable to work with children, Mr. Smoller came very close to it in his answers to questions by Mr. Flynn. In his statement he refers to thinking that his own experiences as a looked-after child would be an advantage but then discovering that he had not yet worked through his own issues in that respect. He said, “I can’t see myself taking another job working with children”. Mr. Smoller had returned the first two children’s case files he had been given to read, saying that the contents made him feel uncomfortable.

39.  Mr. Smoller’s dependence on drugs – he was still not entirely free of benzodiazepine dependency at the date of the hearing – was, in the Tribunal’s view, sufficient to render him unsuitable to work with children or vulnerable adults. He was still suffering work-related stress and had in the recent past behaved in a bizarre and sometimes alarming way – the aimless driving around, the pointless journeys to Madrid and New York, the former abandoned at the very last minute, and the incident which resulted in his being “sectioned”.

Conclusion

40.  For those reasons, on the basis of the admitted and undisputed evidence alone, the Tribunal was unanimously satisfied for the purposes of section 4 of the Protection of Children Act 1999 and section 86 of the Care Standards Act 2000

i) that Mr. Smoller was guilty of misconduct, and

ii) that that misconduct placed a child and vulnerable adult at risk of harm, and

iii) that Mr. Smoller was at the time of the appeal hearing, unsuitable to work with children or vulnerable adults.

For those reasons on the basis of the admitted and undisputed evidence alone, the Tribunal found grounds for dismissing Mr. Smoller’s appeals.

41.  However, the Tribunal recognised that as Mr. Smoller was recruited to work with children and what little actual work he had had time to do was of that kind, the evidence of risk of harm to vulnerable adults was of potential rather than actual risk. If the expression “risk of harm” is to be narrowly construed (which in the Tribunal’s view it is not), it is possible for Mr. Smoller to argue that no risk to vulnerable adults is shown by the admitted and undisputed evidence because he had no professional contact with that group. Lest it be wrong in its conclusion about harm to vulnerable adults, the Tribunal went on to consider the disputed evidence, in particular that relating to the incidents in Lowestoft on the 27th, 31st May and 2nd June 2005 and to the masturbation incident in mid-June.

The Lowestoft incidents

42.  Mr. Smoller accepted that he was in Lowestoft on the 27th and 31st May. He said that he was not there on the 2nd June, but on that day an informant was sufficiently concerned about the behaviour of the driver of a silver Ford Mondeo to write down the number of the car. It proved to be the number of the hire car used by Mr. Smoller.

43.  There are, however, some reported incidents in which the identification of the driver and the car is far less precise. In one such incident the driver is said to have attempted to entice a four year old girl into his car and to have told her six year old sister, in obscene terms, to go away. The Tribunal was not satisfied that that driver was Mr. Smoller. It was not satisfied that Mr. Smoller’s behaviour in Lowestoft on those occasions, though bizarre, ever threatened any child or vulnerable adult or placed any child or vulnerable adult at risk of harm.

The alleged indecency

44.  The Tribunal found Mrs. Lake to be a convincing witness. She may have been a little confused about the date and she may have thought that she had telephoned the police when in fact she had not, but telephoned only her friend, Mrs. Abdelaoui. In the Tribunal’s view that did not detract from the honest and essentially accurate nature of Mrs. Lake’s evidence.

45.  Likewise the Tribunal found Mrs. Abdelaoui to be a reliable and honest witness. The only part of her evidence which was seriously challenged was her assertion that Mr. Smoller’s car, the number of which she accurately recorded, was on a number of occasions driven a little way ahead when she caught up with it. It was not necessary for the Tribunal to make any specific finding on that, if it had been, the Tribunal would have accepted Mrs. Abdelaoui’s account.

46.  Mr. Smoller, as has already been set out, was inconsistent in his account of the masturbation incident and his motives with regard to that inconsistency do him no credit. His final account, in his evidence at the hearing, was an admission of masturbating in his car, qualified by an assertion that it had occurred in an area selected by him with some care as one in which he could not possibly be observed. He described the area to Mrs. Carty who, he said, identified it by using ‘Google Earth’ or the like, on her computer.

47.  The Tribunal did not find Mr. Smoller’s evidence convincing. His previous prevarication and manipulation of his account suggested that the final explanation might represent another attempt to minimise the incident. Moreover it was improbable in the extreme, if Mrs. Lake’s evidence is accepted, as it was. It would mean that two men of strikingly similar appearance in almost identical cars were engaged in similar acts of indecency at about the same time in locations very close to one another.

48.  There can be no question of mistaken identity because Mrs. Lake identified Mr. Smoller though she never saw his car number plate. Mrs. Abdelaoui did not get a good view of the driver but accurately recorded the number of Mr. Smoller’s car. In the absence of an extraordinary coincidence, Mrs. Lake must have seen Mr. Smoller masturbating in the car identified by Mrs. Abdelaoui a few days later.

49.  Mr. Smoller’s account could be true only if Mrs. Lake’s were entirely fabricated. The Tribunal was wholly satisfied that that was not the case and that the incident had occurred as she had described it.

The appeals

50.  Such indecency is without doubt misconduct for the purposes of section 4 of the Protection of Children Act 1999 and section 86 of the Care Standards Act 2000. If a child or vulnerable adult had witnessed it, he or she might, and probably would, have suffered shock and distress. Mrs. Lake, who appeared to the Tribunal to be sensible and at least normally robust, was understandably upset by it. It placed persons of either category at risk of harm.

51.  That incident, in itself, is, in the Tribunal’s view, sufficient to establish unsuitability to work with children or vulnerable adults. There are, in addition, the matters of the drug dependence and the lack of candour about that and about the masturbation incident, which also show such unsuitability. For the purposes of section 4 of the 1999 Act and section 86 of the 2000 Act, the Tribunal had no doubt that Mr. Smoller was unsuitable to work with children or with vulnerable adults.

52.  It follows from those findings and the consequent dismissals of the “PoCA list” and “PoVA list” appeals that Mr. Smoller must remain included on “List 99”, the list kept by the Secretary of State under section 142 of the Education Act 2002. This is the result of a somewhat intricate trail of legislation. The Tribunal is indebted to Mr. Hyam for his guidance along it.

53.  Section 142 creates “List 99”. Subsections (5) and (7) give the Secretary of State power to make regulations. The Education (Prohibition from Teaching or Working with Children) Regulations 2003 were made, inter alia, under those powers. Regulation 8(1)(a) provides that if certain conditions are satisfied (conditions A to F) the regulation applies. Conditions A to F are set out in Schedule 2 to the Regulations. Part 1, condition A is that the person is included in the list kept by the Secretary of State under section 1 of the Protection of Children Act 1999 (the “PoCA list”). If the Secretary of State is satisfied that the regulation applies to a person he must give a direction under section 142, i.e. include him in “List 99”.

54.  Although the Tribunal reached its findings and conclusions unanimously and without hesitation, it did not do so without some regrets. Mr. Smoller had suffered extremely grave childhood disadvantages, followed, not surprisingly, by drug addiction and petty crime. He had, to his great credit, and doubtless as the result of great effort and determination, left that world behind in 1988. Since then he had met with success in his academic studies and used his knowledge and his own experiences to help others out of similar problems, again with a considerable measure of success. The only crumb of comfort available to Mr. Smoller is provided by section 4B of the 1999 Act and section 87 of the 2000 Act which allow him to apply to the Tribunal, after ten years, to have his name removed from the respective lists.

55. Mrs. Carty’s plea for justice for her husband is understandable. He has, for misconduct, largely, if not entirely, arising out of drug dependency for which he may not be wholly to blame (the Nurofen Plus was bought quite legitimately and Mr. Smoller at first may not have realised its perils), lost the only career he knows and his talents will no longer be available to assist the deprived and unfortunate.

56.  The plain object of the relevant legislation, as is made clear by the very names of the Acts, Protection of Children Act and Safeguarding Vulnerable Groups Act (the latter not yet in force) is not the furthering of the interests of social workers and other carers, but the protection and safeguarding of their clients. Mitigating features in relation to the misconduct itself or in relation to the offender’s background are therefore of little relevance. The important matter is not culpability, it is the effect or likely effect on the young and vulnerable.

Accordingly the Tribunal unanimously dismisses both appeals.

Andrew Lindqvist
Michael Flynn
David Tomlinson  
13 July 2007