JF v Secretary of State, Court of Appeal, July 14, 2009, [2009] UKFTT 159 (HESC)

Resolution Date:July 14, 2009
Actores:JF v Secretary of State

[2009] UKFTT 159(HESC)1JF-v-SECRETARY OF STATE [2008] 1276.PVA /1277.PCBefore:Mr. Simon Oliver(Deputy Principal Judge)Mrs. Geraldine MatthisonMr. Graham HarperDecisionHeard on 6th to 11th February 2009 and 9th March 2009 at Care Standards Tribunal, 18 Pocock Street, London SE1 OBW.RepresentationThe Appellant appeared in person and was assisted by her husband.The Respondent was represented by Ms Sarah-Jane Davies of Counsel, instructed by the Treasury Solicitor. Appeal 1. This is an appeal by JF pursuant to section 86 of the Care Standards Act 2000 against her inclusion in the list kept by the Secretary of State pursuant to section 81 of the Act, of persons considered unsuitable to work with vulnerable adults and her related appeal against inclusion on the list of those unsuitable to work with children, kept by the Secretary of State pursuant to section 1 of the Protection of Children Act 1999. JF was provisionally placed on the list on 20th April 2005, that listing being confirmed on 28th September 2005. 2. JF appealed against her listing to this tribunal on 8th November 2005. A response was received from the Respondent on 13th December 2005. This appeal was originally determined in 2007. We are aware that a party appealed that decision to the High Court and that the matter was remitted to the Tribunal in early 2008 for a rehearing. 3. We deliberately did not look at the earlier decision or the decision of the High Court. We are unaware, therefore, of the conclusion reached by that earlier panel, the reason for the appeal to the High Court or the reasons why the case was remitted.4. In the papers we read in preparation for this hearing there were references to some partial admissions JF made before the last hearing. We are aware that these admissions were withdrawn prior to this hearing. We did not take any notice of the previous partial admissions in reaching our conclusions in this case, nor did we take the view that the apparent change of mind of JF should be held against her at this hearing. The Law 5. Appeals to this Tribunal against inclusion on the PoCA and PoVA lists are governed by section 4 of the Protection of Children Act 1999 and section 86 of the Care Standards Act 2000 respectively. Sections 4(3) and 86 (3) (combined) state that:If on an appeal or determination 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 (a child) or placed (a child) at risk of harm (a vulnerable adult); and (b) that the individual is unsuitable to work with (children) (vulnerable adults),the Tribunal shall allow the appeal or determine the issue in the individual's favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list.6. Thus there are two elements that the Tribunal panel needs to consider in relation to a PoVA and PoCA appeal. First, there is whether or not the applicant is guilty of misconduct. The second is whether the applicant is unsuitable to work with children or vulnerable adults. If the panel is not satisfied on one or other ground it allows the appeal. However, under section 4(3), if the two criteria are met the Tribunal must reject an appeal against listing: there is no discretion.7. The onus of proving each of the two matters in section 86(3) and 4(3) lies upon the Respondent. The standard of proof is the civil standard of proof. The civil standard of proof is a single standard, namely the balance of probabilities. The civil standard of proof does not recognise or embody a moving standard according to the gravity of the allegation. It is for this Tribunal to use its own collective experience in assessing the inherent likelihood of the particularised misconduct. It is that likelihood against which the totality of evidence is to be measured. 8. Where an adult has been included on the POVA List, that adult may at any time after 10 years apply to the Tribunal to be removed from it: sections 4A and 4B of the 1999 Act and section 88(4) of the 2000 Act. Inclusion in the List does not prevent the listed person from securing any other form of employment. The List is not a public document. The List is not punitive. It is not disciplinary. Still less is it intended to shame or stigmatise a person. The objective of the List is to lessen the risk of harm to vulnerable adults from those working or having extended contact with them. It secures that objective by preventing a person who has been guilty of misconduct that harmed a vulnerable adult, or risked the same, and who is unsuitable to work with vulnerable adult, from being in a position having extended, unsupervised contact with vulnerable adults. 9. By virtue of her inclusion in the Protection of Children Act list, the Secretary of State for Education made a direction that the Appellant may not carry out work to which section 142 of the Education Act 2002 applies and her name was included on the list kept pursuant to that Act (commonly referred to as List 99). This listing is consequent on the Appellant's inclusion in the Protection of Children Act list, and if her appeal against inclusion in that list is successful she will be removed from List 99.10. The referral by Westminster Health Care (``WHC'') was made in accordance with section 82(1) of the Care Standards Act 2000 It was referred as a matter of discretion, since the misconduct alleged pre-dated the commencement of the section: section 82(10) and the decision of the Court of Appeal in Wright [2007] EWCA Civ 999 make it clear that such referrals are permissible.11. It is the Respondent's case that the misconduct identified in each of the 7 particulars set out in paragraphs 26 to 34 below, either singly harmed a vulnerable adult or placed a vulnerable adult at risk of harm. Taken as a whole course of conduct, the risk of harm was all the greater.12. The issues in respect of the Applicant's period of employment at Ashby House are:a. Was the Appellant guilty of misconduct (``Misconduct'')?b. Did that misconduct harm a vulnerable adult or place a vulnerable adult at risk of harm (``Harm'')?c. If so, is the Appellant unsuitable to work with vulnerable adults (``Suitability: vulnerable adults'')?d. Is she unsuitable to work with children (``Suitability: children)?13. As to the first issue, misconduct, the approach to be adopted was considered by the Tribunal in the case of Angela Mairs v Secretary of State [2004] 269 PC. The Tribunal held at para 109:...In principle, a single act of negligence could constitute misconduct (per Webster J in R v Pharmaceutical Society of Great Britain ex p Sokoh (1986) The Times 4th December) but in most cases the misconduct will be an incident forming part of a course of erroneous or incorrect behaviour undertaken by a person who knew or ought to have known that what he or she was doing was contrary either to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling.In the context of a profession, for there to be a finding of misconduct there must be a falling short, whether by omission or commission, of the standards of conduct expected from members of that profession (Doughty v General Dental Council [1987] 3 All ER 843).It is not helpful to attempt to further refine ``misconduct'' by reference to any adjective having moral overtones. The word ``misconduct'' does not necessarily connote moral censure. An individual can be ``guilty of misconduct'' without being, for example, dishonest or disgraceful.An individual is not guilty of misconduct if he or she was unable to avoid the improper act or omission complained of or was in a position where it was impossible to avoid breaching the relevant code of conduct. If the requirement to act properly or in accordance with a code was merely rendered more difficult by the acts or omissions of others or by the prevailing circumstances, there can still be a finding of misconduct. Mitigation of an offence is always possible and, where the circumstances are such that the individual guilty of misconduct was overworked, short of time and/or unsupported it may be possible to excuse his or her misconduct. However, misconduct is only extinguished when the extenuating circumstances rendered proper performance of a duty impossible as opposed to more difficult. 14. The High Court has recently made clear, in Joyce v Secretary of State for Health [2008] EWHC 1891 (Admin), that the Tribunal can consider misconduct going beyond the terms of the employer's referral to the Secretary of State, for example misconduct that comes to light in the course of the Secretary of State's consideration of the matter.15. As to the issue of unsuitability, the Tribunal has considered this on many occasions. In CN [2004] 398 PC; [2004] 399 PVA it held as follows:``We cannot underestimate the importance we attach to public confidence. When the Tribunal considers the question of unsuitability, it must look at the factual situation in its widest possible context. It may well be, as the Tribunal has said before (e.g. BR [2003] 205 PC) that it is unfortunate that the 1999 Act does not enable the Secretary of State or a Tribunal to prohibit a person from being employed by a child care organisation in some positions while allowing him or her to be employed in others, in the way the Education Act 2002 does. It is our view that it is the clear intention of Parliament that the language of the Act requires us to take a broad view having regard to the degree of risk posed by the Appellant, but also to acknowledge that the public at large and those who entrust their children into the hands of professionals have a right to expect, indeed to demand, that such people who are placed in such important positions of trust working with children ``in a child care...

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