JVS v Secretary of State, Court of Appeal, January 20, 2009, [2009] UKFTT 6 (HESC)

Extract

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JVS v Secretary of State, Court of Appeal, January 20, 2009, [2009] UKFTT 6 (HESC)

[2009] UKFTT 6 (HESC)

JVS v Secretary of State [2009] UKFTT 6 (HESC) (20 January 2009)

Schedule 5 cases: Protection of Vulnerable Adults list - Inclusion on PoVA list

IN THE FIRST TIER TRIBUNAL (CARE STANDARDS)

[2008]1283.PoVA

[2008] 1284. PoCA

BETWEEN:

JVS

Appellant

-and-

SECRETARY OF STATE FOR HEALTH and SECRETARY OF STATE FOR CHILDREN, SCHOOLS AND FAMILIES

Respondent

-Before-

Mrs. Carolyn Singleton

(Tribunal Judge)

Ms. Bez Chatfield

Ms. Claire Trencher

Heard at Pocock Street, London on 1st, 2nd, 3rd and 4th December 2008

Representation

1.The Respondent was represented by Mr. Little of counsel. The Appellant appeared in person.

Burden of Proof

2.The burden of proof lies with the Respondent to prove misconduct in this case which harmed or placed at risk of harm a vulnerable adult. If misconduct is proved, the burden of proof switches to the Appellant to prove his suitability.

Standard of Proof

3.The standard of proof is on the balance of probabilities.

The Appeal

4.This appeal is against the Appellant's inclusion on the PoVA and PoCA lists. Appeal against inclusion on the PoVA list lies under s86(3) of the Care Standards Act 2000 which states;

``If on an appeal.....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.....direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list.''

Similar requirements apply to the Appellant's inclusion on the PoCA list, save for the fact that the word ``child'' should be read for ``vulnerable adult'' and the appeal lies under s. 4(3) of the Protection of Children Act 1999. The Tribunal can consider matters up to the hearing itself.

History of the Case

5. The Appellant was formerly employed as a driver and part-time support worker by the London Borough of Barnet, working at New Fieldways, a residential care home for people with learning difficulties.

6. On 14th August 2005, HT, a resident at the Home made allegations of a sexual nature concerning the Appellant to Ian Hutchison, the Deputy Manager of New Field ways. HT suffers from communication problems with features of autism. The nature of the allegation was that the Appellant had showed her his penis and had asked her to show him her vagina.

7. On 24th August, 2005, HT was video interviewed in order to achieve best evidence (``ABE interview'') by police. In this interview she alleged that the Appellant had raped her.

8. The Appellant was subsequently charged with rape and sexual assault. He was acquitted of those charges at the Crown Court in September 2006. The Borough of Barnet carried out its own enquiry into the allegations and the Appellant was provisionally included on the PoVA and PoCA lists on 28th November 2005. He was dismissed by his employers on 4th May 2007 and confirmed on those lists on 25th March 2008. He lodged his appeal to this Tribunal on 9th April 2008.

9. At a directions hearing on 11th July 2008, a direction was made under Regulation 19(1) excluding members of the press and public (with the exception o...

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