Social workers in England who appeal against misconduct rulings could be saddled with huge legal bills when the appeals system is reformed in 2012, legal experts have warned.
And there is growing concern that the new system, under which appeals will go to the High Court instead of a specialist tribunal, will be too formal and lack an appreciation of the unique pressures facing social workers.
Under existing legislation, social workers have the right to appeal against decisions taken by the General Social Care Council’s conduct committee to the health, education and social care chamber of the First-tier Tribunal (Care Standards Tribunal).
Panels of the Care Standards Tribunal are made up of three members and typically include a lay member with first-hand knowledge of the realities of frontline social work.
But this will change when responsibility for the social care register transfers to the Health Professions Council, which will be renamed the Health and Care Professions Council, in April 2012. The details were published in yesterday’s Health and Social Care Bill.
From next year, appeals against decisions taken by the HPC’s conduct and competence committees will go to the High Court, rather than the Care Standards Tribunal.
This means that, for the first time, social workers who lose their appeals may have to cover the other parties’ costs.
“The default assumption in court is that the loser pays the costs of the winner; the default assumption in the tribunal is that there are no such costs orders,” Allan Norman, solicitor at independent law firm and social work practice Celtic Knot, told Community Care.
“The tribunal is therefore a relatively safe place to appeal because you are not running the costs risk of having to pay your well-resourced opponent’s costs if you lose.”
Norman also expressed concern about the perceived lack of specialist knowledge held by the High Court.
He said: “High Court judges reviewing decisions of regulatory bodies tend to focus on the legal soundness of the decision, the reasoning and the outcome, but show deference to the aspects of professional judgement of the regulatory body.
“By contrast, the Care Standards Tribunal is specifically constituted as a specialist tribunal whose members will have relevant expertise, and do not need to show that deference.”
Norman’s view was shared by Ed Mitchell, solicitor and editor of Social Care Law Today, who said: “Social workers often have to make decisions in a very fast-moving and highly-sensitive environment, against a background of serious budgetary pressure.
“I would be concerned that the High Court would not have the same appreciation as the tribunal when hearing appeals against a finding of misconduct of the context within which a social worker has to operate.”
Mitchell also said that proceedings before the courts are less relaxed, potentially deterring social workers. He said that if, for example, an adviser from the British Association of Social Workers did not have legal qualifications, they would be unable to represent a social worker in court proceedings.
“The effect of this change in atmosphere should not be underestimated,” said Mitchell. “For many appellants, it is likely to inhibit them from telling what they consider to be the full story.”
A spokesperson for the HPC said: “Appeals for the HPC final decisions are made to the High Court for all the healthcare regulators.
“We have not experienced situations where judges do not understand the issues before them.
“The HPC seek recovery of its costs as appropriate. We are funded solely by registrants’ fees and it would be wrong for us to not recover costs where it is fair and reasonable for us to do so.”
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