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

Resolution Date:January 20, 2009
Actores:JVS v Secretary of State

[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 listIN THE FIRST TIER TRIBUNAL (CARE STANDARDS)[2008]1283.PoVA[2008] 1284. PoCABETWEEN:JVSAppellant-and-SECRETARY OF STATE FOR HEALTH and SECRETARY OF STATE FOR CHILDREN, SCHOOLS AND FAMILIESRespondent-Before-Mrs. Carolyn Singleton(Tribunal Judge)Ms. Bez ChatfieldMs. Claire TrencherHeard at Pocock Street, London on 1st, 2nd, 3rd and 4th December 2008Representation1.The Respondent was represented by Mr. Little of counsel. The Appellant appeared in person.Burden of Proof2.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 Proof3.The standard of proof is on the balance of probabilities.The Appeal4.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 Case5. 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 of the Appellant's spouse) and a Restricted Reporting Order under Regulation 18(1) was made. The Tribunal directs that this should continue to be in force.Evidence for the Respondent10. Allegations of misconduct relied upon by the Respondent were handed in in documentary form. HT had given her evidence at the Crown Court by video link. A transcript of that evidence formed part of the bundle. It was not intended that HT should attend the tribunal hearing to give oral evidence. The allegations of misconduct were as follows: 1. The Appellant at New Fieldways: (a) asked HT to show her vagina to him (b) showed his penis to HT (c) asked HT to touch and kiss his penis (d) penetrated HT's vagina with his fingers (e) penetrated HT's vagina with his penis (f) sucked HT's breasts (g) showed HT his anus2. In the front seat of the minibus the Appellant touched HT's vagina.11. The Tribunal watched the video of HT's ABE interview on 24/08/05. The transcript of that interview is at document 416 of the papers. The interview was conducted by Alison Preece, a police officer. Before the interview actually starts, HT states ``I need to have space from JS''. Sergeant Preece then leaves the room temporarily and Ian Hutchison, the deputy manager of New Fieldways says ``...When the lady comes back we'll talk about J, OK?'' When the interview is conducted HT describes how JS took her to the old day centre in New Fieldways and asked her to show him her vagina. He then showed her his penis and penetrated her with it. As to when this happened she said that it had happened on a Monday, quite a few weeks before. She goes on to say that JS asked her to lift her top and he sucked her breasts. He also asked her to kiss his penis and she did not like it. She gave a description of what JS looks like and what both she and he were wearing. She then states that JS asked her to pull her pants down but she did not want to do that and she pushed him away. When asked what happened then, she states that she told her key worker, Afshan. When asked by the police officer when she told Afshan, she says, ``I told Afshan before''. At this point Ian Hutchison intervenes and says ``That was the day you let staff know'' and HT replies ``Yes''. HT is asked to describe the penis, which she does and then she refers to sperm coming out of it. She also, at this point, says that he showed her his anus. She states that JS penetrated her vagina with his fingers and that all this took place in the hall whilst she was standing up . When asked if J has ever done anything like this before or after, she says he hasn't; `` it happened this one time''. She is asked if J said anything afterwards and replies that he talked about holidays and she did not like that because holidays make her homesick. She goes on to say that this took place after lunch. She had been sitting in the garden when JS had approached her and said ``I want to take you into the hall so that you can see my penis''. She reiterates that she does not like JS. He upset her and was rude to her. He was nasty to her. Once more, she is asked if JS has ever done anything to her before or after this incident which she says took place on a Monday and she replies that he has not.12. In addition to this interview, the Respondent relies on the transcript of the further interview with HT conducted on 14th November 2006 which appears at document 101 of the bundle. This formed part of the enquiry undertaken by Barnet Borough. HT states that JS tried to ``make me have babies with him'' lots of times in the old school room downstairs. She says that she pushed him away when he tried to do this and told her key worker, Afshan, about it. She is asked what else JS has done to her and she replies that he lifted her high up into a big lorry and squeezed her. She then says that she has made a mistake and, in fact, JS only took her into the day centre once and had intercourse with her. She confirms that C, who is a fellow resident at New Fieldways, has tried to do this before but she told him to stop. She states that she does not like JS because he is rude to her and drives the minibus ``loudly''. She states that JS touched her ``front bottom'' when she was sitting in the front seat of the minibus. She told JS that she did not like that. Other people were in the minibus at the time. She goes on to say that she was downstairs in the office when JS told her to go with him to the hall. He also lifted her up when she was at Brook Hill. He stuck his tongue out at her and gave her a dirty look. He poked her in the eye with his finger. It hurt when he put his penis in her vagina. She told Afshan straightaway and she, Afshan, then told Ian Hutchison. She states ``My mummy said that JS is a very bad man and my daddy said that as well''.13. Ian Hutchison, at the relevant time, was the Deputy Manager at New Fieldways. His statement appears at document 40 of the bundle. He had known HT since the beginning of June 2005. In that statement he describes HT as ``unique''. She is very articulate but does not engage in social conversation. She tells you what she wants you to know. When she is very anxious she self-harms, screams and shouts and bangs objects. Staff at New Fieldways were wary of approaching her. Rules are important to her, for example, she wears bangles on each arm which provide her with a sense of security. She also has a rule that no-one is allowed into her bedroom without her permission.14. On 14th August 2005, when he was Acting Manager, HT and another service user were in the TV lounge. HT appeared anxious, talking about her bangles and, in the middle of talking about those she said that she did not want JS to show her his willy because it was dirty. Mr. Hutchison took this very seriously and offered HT the opportunity for HT to talk privately and moved to the kitchen. There she repeated that she did not want JS to show her his willy. Mr. Hutchison requested Afshan to attend and take notes. Whilst not able to remember the conversation in detail, he is satisfied that Afshan's notes are accurate. He read the notes afterwards and signed the typed copy. The hand written notes are at document 176 of the bundle. They say, inter alia, that JS ``pulled his pants down and showed me his willy'' and then took HT to a private room and asked her to pull her pants down and show him her vagina. According to the notes, HT says that this happened on a Friday afternoon. JS sucked her bosoms and HT did not like it. She thinks that JS will get the sack. She says ``I don't want JS to come into my room because it is...

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