SW v Secretary of State, Court of Appeal, October 21, 2008, [2008] EWCST 1307(PT)

Resolution Date:October 21, 2008
Actores:SW v Secretary of State
 
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SW v Secretary of State [2008] EWCST 1307(PT) (21 October 2008)Schedule 4 cases: Protection of Children Act List and Prohibition from teaching and working in schoolsSWAppellantvSECRETARY OF STATE FOR CHILDREN, SCHOOLS AND FAMILIESRespondent[2008] 1307.PTBefore:Mark RowlandLinda RedfordPaul ThompsonMs Carine Patry Hoskins of counsel, instructed by the Treasury Solicitor, appeared for the Respondent.The Appellant appeared in person.D E C I S I O N1. We dismiss this appeal.2. So far as is material, section 142 of the Education Act 2002 provides – “(1) The Secretary of State, in relation to England, …, may direct that a person – (a) may not carry out work to which this section applies; (b) may carry out work to which this section applies only in circumstances specified in a direction; (c) may carry out work to which this section applies only if conditions specified in the direction are satisfied. (2) This section applies to – (a) providing education at a school; … … (4) A direction under this section may be given in respect of a person only – (a) on the grounds that the person is included (otherwise than provisionally) in the list kept under section 1 of the Protection of Children Act 1999 (list of individuals considered unsuitable to work with children), (b) on the grounds that the person is unsuitable to work with children, (c) on grounds relating to the person’s misconduct, (d) on grounds relating to a person’s health, or (e) in the case of a direction given by virtue of subsection (2)(d) [which is concerned with the management of an independent school], on grounds relating to the person’s professional incompetence (or on a ground mentioned in any of paragraphs (1) to (d)). … (6) The Secretary of State, in relation to England, …, may vary or revoke a direction under this section except in a case where – (a) the direction was given on grounds that a person is unsuitable to work with children, and (b) the person claims that he is no longer unsuitable to work with children. ….”The tribunal has power to revoke a direction in those cases where the Secretary of State does not (see section 144(2)).3. Section 144(1) provides – “(1) A person in respect of whom a direction has been given under section 142 may appeal to the Tribunal established under section 9 of the Protection of Children Act 1999 – (a) against the decision to give the direction; (b) against a decision not to vary or revoke the direction.”4. So far as is material, regulations 9, 12 and 13 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 (S.I. 2003/1184, as amended), made under sections 142(7) and 144(4) of the 2002 Act, provide – “9. - (1) Save where – (a) a direction was given because condition A or B is satisfied, or (b) a direction was given on the grounds that a person is unsuitable to work with children and the person claims that he is no longer unsuitable to work with children, a direction given under section 142 of the 2002 Act ("the earlier direction") may be revoked or varied by a subsequent direction on either or both of the grounds referred to in paragraph (2). (2) The grounds upon which an earlier direction may be revoked or varied under paragraph (1) are that – (a) the Secretary of State is in possession of information relevant to the decision to give the earlier direction which he did not have at the time that the decision was made; and (b) the Secretary of State is in possession of evidence of a material change of circumstances of the person concerned occurring since the earlier direction was given. (3) Where a direction was given because condition A is satisfied the direction shall be revoked if the name of the person concerned is removed from the list referred to in that paragraph. (4) Where a direction was given because condition B is satisfied the direction shall be revoked if the disqualification order ceases to have effect. … 12. - (1) Subject to paragraphs (2) and (3) an appeal to the Tribunal may be brought by a person in respect of whom a direction has been given under section 142 of the 2002 Act – (a) save where regulation 8 applies, against a direction given to him by the Secretary of State under section 142 of the 2002 Act; and (aa) …; and (b) against a refusal by the Secretary of State to revoke or vary a direction given to him under section 142 of the 2002 Act following consideration of the information or evidence referred to in regulation 9. (2) No appeal may be brought on the ground of information or evidence referred to in regulation 9(2) unless that information or evidence has first been brought to the attention of the Secretary of State under regulation 9. (3) Where a person has been convicted of any offence involving misconduct, no finding of...

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