England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
(JUDGE LEVENSON)

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 14th October 2014

1. LORD JUSTICE LAWS: This is an appeal with permission granted by Elias LJ on 12th February 2014 against a decision of the Upper Tribunal (Administrative Appeals Chamber) dated 16th July 2013 (see [2013] UKUT 339). By that decision the Upper Tribunal dismissed the appellant's appeal against an earlier determination of the First Tier Tribunal ("the FTT") made as long ago as 3rd March 2009.
2. The history of the case is complex and unusual. The appellant was a qualified mental health nurse. On 22nd November 2007 his name was placed on the Protection of Children and Protection of Vulnerable Adult lists. The placement was confirmed on 10th July 2008. As the Upper Tribunal was to observe, nothing turns on the statutory setting of the lists; it is enough to say they are a mechanism by which a person may be prohibited from working with children or in education or with vulnerable people if he is unsuitable by virtue of his conduct or on certain other grounds.
3. There were three reasons for the appellant's inclusion on the list of which, according to the appellant at least, the most serious was an allegation of assault on a patient referred to as "KG" during a riot at a secure unit. Of course, as Miss Blackmore for the Secretary of State has been at pains to insist, the issue is not strictly as to a criminal assault but as to the appellant's suitability to work with children or the vulnerable.
4. The appellant appealed against the listing. He claimed to have been acting in legitimate self-defence on the occasion of what I will call the assault.
5. On 3rd March 2009 the FTT dismissed his appeal. Permission to appeal to the Upper Tribunal was refused by the FTT and then by the Upper Tribunal, which also declined to set aside their refusal. These decisions on the applicant's application for permission to appeal against the FTT determination were made in 2009 and 2010.
6. However, in separate proceedings before a panel of the Conduct and Competence Committee of the Nursing and Midwifery Council it was found on 21st February 2011, following a hearing, that the allegation of assault was not well-founded. The appellant thereafter sought judicial review of the Upper Tribunal's refusal of permission to appeal to it against the FTT decision of 3rd March 2009. Judicial review permission was granted by Wilkie J on 8th July 2011, by which time the Supreme Court had delivered judgment in Cart, [2011] UKSC 28, on the availability of judicial review against a refusal by the Upper Tribunal to grant permission to appeal to itself.
7. The appellant's judicial review claim came before His Honour Judge Sycamore, who delivered a reserved judgment on 13th June 2012 ([2012] EWHC 2196 (Admin)). Judge Sycamore quashed the 2010 decision of the Upper Tribunal to refuse permission to appeal to itself and directed that the matter be remitted to the Upper Tribunal for it "to reconsider the application for permission to appeal and to reach a decision in accordance with this judgment": see paragraph 69 of the judge's judgment and the order made in consequence. And so the matter went back.
8. On 15th August 2012 the Upper Tribunal granted permission to appeal against the March 2009 decision of the FTT, but on 16th July 2013 the Upper Tribunal dismissed the substantive appeal and this is the decision now under appeal to this court.
9. The principal question in the case, to put it compendiously, is whether the Upper Tribunal was in error in failing to be loyal to the reasoning of Judge Sycamore in the Administrative Court.
10. The essence of the Administrative Court's reasoning concerned the witness statement of a colleague of the appellant, Mr William Buck, who was also present at the riot at the secure unit at which the alleged assault by the appellant took place. In a passage quoted at paragraph 34 of the Administrative Court judgment, Mr Buck in his statement said this:

"As this was happening, Mr Kuteh lashed out at [KG], hitting her somewhere in the face. I am not sure exactly where Mr Kuteh hit [KG], but my impression was that, while he was defending himself, he was not trying to assault her, it seemed to me more like he was trying to stun her into stopping her attack on him. However, I was still shocked at Mr Kuteh's actions, and shouted at him, saying, 'What are you doing?'."

Mr Buck, as I understand it, gave oral evidence to the panel of the committee of the Nursing and Midwifery Council. There were other witnesses to the incident, pro and con the appellant's factual case.

11. The Administrative Court held that the FTT in March 2009 had failed to consider Mr Buck's evidence when they came to draft their reserved judgment. The evidence had been brought to the FTT's attention and the Administrative Court was clear about that: see paragraph 22 of Judge Sycamore's judgment. Mr Buck's witness statement was not however referred to in the FTT judgment, although it dealt with other evidence in the case exhaustively. The Upper Tribunal, dealing in 2010 with the appellant's renewed application for leave to appeal, acknowledged that the FTT had made no reference to Mr Buck's statement. At paragraph 12 Upper Tribunal Judge Wikeley stated in a passage cited by the Administrative Court at paragraph 40:

"... But of course a tribunal is not required to deal with every piece of evidence. This tribunal dealt with the evidence of two staff witnesses which was firmly adverse to the applicant. It also dealt with the evidence of two staff witnesses who had not seen any assault by the applicant on the KG. As the tribunal noted 'Given the chaotic situation it is not surprising that the incident was not seen by all staff [and] their failure to see it does not mean it did not happen as described'. While I accept that Mr Buck was closer to the incident than any of the other four witnesses, it does not necessarily follow that he had the best view, given he and the applicant were on either side of KG seeking to restrain her. It is also right to say that Mr Buck's evidence is by no means a vindication of the applicants behaviour. It is ambivalent about the applicant's conduct. It is true that in his witness statement Mr Buck states that his impression was that the applicant was defending himself, rather than trying to assault KG, but it still described himself as 'shocked' at the applicant's action, which is consistent with his incident report. I cannot say that it is arguable that the tribunal erred in law in not referring to the Mr Buck's evidence, not least as it had over 400 pages of documentary evidence to consider."

12. Judge Sycamore considered the law relating to a court or tribunal's duty to consider all the evidence before it. At paragraph 53 he said this:

"As I have already observed, on the issue of whether the claimant was using lawful self-defence, Mr Buck's statement is of considerable significance particularly when taken with the evidence of Ms Marsh. The inference that the First-tier Tribunal did not consider Mr Buck's statement when considering and drafting its reserved judgment is a strong one. The following factors are relevant:

(a) As I observed at paragraph 30, the First-tier Tribunal bundle provided to the Upper Tribunal did not contain Mr Buck's statement;

(b) The description by the First-tier Tribunal of a bundle containing nearly 450 pages when in fact Mr Buck's statement was or should have been at pages 448 to 453;

(c) The specific references by the First-tier Tribunal to all of the evidence before it, both oral and written, with the exception of Mr Buck's statement;

(d) The lack of any evidence to support the Secretary of State's assertion that the First-tier Tribunal read the statement during the January 2009 hearing."

13. Miss Blackmore has submitted -- and I will return to this -- that paragraph 53(d) is in error.
14. The learned judge in the Administrative Court proceeded to his conclusions. He said this:

"58. In my judgment, the failure by the First-tier Tribunal to consider the evidence of Mr Buck was a serious procedural irregularity. It seems clear that the Upper Tribunal either failed to appreciate the First-tier Tribunal had simply not considered Mr Buck's evidence or did appreciate that it had not considered it but did not recognise that this vitiated the First-tier Tribunal's decision, which it clearly did.

59. It therefore follows that the Upper Tribunal's approach itself was vitiated by serious procedural irregularity and a failure to apply the rules of natural justice or procedural fairness.

60. The Upper Tribunal could have cured the First-tier Tribunal's procedural irregularity by directing a full rehearing of the evidence, either by remitting to the First-tier Tribunal or arranging for a hearing by the Upper Tribunal.

61. I accept the claimant's submission that it was not sufficient for the matter to be dismissed at a permission to appeal hearing."

15. As I have said the Upper Tribunal thereafter granted permission to appeal against the FTT decision, rightly feeling bound to do so by force of the Administrative Court's decision.
16. In dealing with the substantive appeal which necessarily followed the Upper Tribunal went into considerable detail in describing the history, including facts other than the riot and the alleged assault which also went to the appellant's name being put on the lists. In particular, he had been cautioned for a common assault on his daughter which it appears he had not disclosed to the employment agency which found him work. The Upper Tribunal cited the decision of the FTT of March 2009 at some length.
17. The Upper Tribunal considered that the Administrative Court had held that the FTT had not seen Mr Buck's statement (see paragraphs 31, 38 and 39). However, that was clearly not so. As I have indicated, at paragraph 22 Judge Sycamore stated in terms that it had been brought to the FTT's attention. It is plain that Judge Sycamore's conclusion was, in contrast, that the FTT had failed to consider Mr Buck's statement "when considering and drafting its reserved judgment" (paragraph 53). However, as I shall show, Miss Blackmore submits that the High Court's conclusion that Mr Buck's statement was not considered was to say the least vulnerable.
18. But Judge Levenson in the Upper Tribunal saw fit in terms to differ from Judge Sycamore's conclusion about Mr Buck's statement:

"38. It is important to appreciate what the Administrative Court did and did not do in this case. It was dealing only with the refusal of the Upper Tribunal to grant permission to appeal to it from the First-tier Tribunal. Everything that it said must be seen in that context and not in the context of considering a substantive appeal from either the First-tier Tribunal (which is within the exclusive jurisdiction of the Upper Tribunal: Tribunals, Courts and Enforcement Act 2007 section 11(1) or from the Upper Tribunal itself (which in England and Wales lies to the court of Appeal, not to the High Court or the Administrative Court: section 13(12)). The Administrative Court took the view that there had been an error in the refusal by the Upper Tribunal to grant permission to appeal to it. Had it taken the view that there was only one possible decision that the Upper Tribunal could have made on the application for permission, it could have granted permission itself or mandated the Upper Tribunal to grant permission. It did not do this. However, permission has now been granted by the Upper Tribunal. There is nothing in the Administrative Court's order that bites on the decision that the Upper Tribunal should make on the substantive appeal in this case (especially as it was based on a mistaken factual assumption), and there is a limit as to how much there could properly have been, in view of the above appeal provisions.

...

40. Where a tribunal deliberates in private and gives detailed reasons later, only its members can ever really know what was considered. It is virtually always (and virtually always accurately) assumed that if a matter is specifically referred to in a statement of reasons then it was in fact considered. However, it cannot be assumed that in the absence of a specific reference to it, a matter was not considered. (I say this having been a member, a chair and a judge of various tribunals for 35 years). Judge Wikeley was absolutely correct if he meant to say that a tribunal is not obliged to refer to every single piece of evidence that was placed before it. This is well-established. It was unfortunate that, as pointed out by HHJ Sycamore, Judge Wikeley used the term 'deal with' which could be seen as ambiguous.

...

42. As the First-tier Tribunal did in fact read the written evidence of Mr B, and given what I have said above about its contents, I see no reason at all to suppose that the First-tier Tribunal failed to consider or take account of that written evidence. It certainly cannot be assumed from the contents of the written evidence that the First-tier Tribunal must have failed to take account of it.

43. The Secretary of State's original decision(s) was or were based on several incidents and I have dealt with them above in some detail. Although Ms Misra has challenged in general terms the weight put on the earlier incidents by the First-tier Tribunal, there has been no challenge to the findings of fact in relation to them. If the First-tier Tribunal had been unable to reach a conclusion on the incident of 1st September 2007 or, indeed, if that incident had never happened, it seems to me that the earlier incidents by themselves would have been enough to justify the appellant being placed on the relevant lists.

44. I can only interfere with the decision of the First-tier Tribunal if it got the law or procedure wrong. In the case I am not persuaded that it did so. For the above reasons this appeal does not succeed."

So the appeal was dismissed.

19. The appellant cites authority: Cart in the Supreme Court paragraph 33 (compare Cart in this court [2010] EWCA Civ 859) to the effect that the Administrative Court binds the Upper Tribunal; and that in this case the Administrative Court's finding of a serious procedural irregularity on the part of the FTT was res judicata: Thrasyvolou [1990] 2 AC 273, 289B-D.
20. In my judgment the real point at the centre of the case is as to the efficacy of the High Court's judicial review jurisdiction. Where a judicial review claim is allowed and the case sent back to be considered by the reviewed body or court in light of the High Court's judgment, as happened here, then the ratio of the High Court's decision is a given, an axiom, for the purpose of the lower body's reconsideration. If it were not so the efficacy of the judicial review jurisdiction would be undermined and so therefore would the rule of law. The ratio of the High Court's decision here is the conclusion at paragraph 58, which I have read. Miss Blackmore however does not accept that the ratio is to be found in that passage. She says the ratio is really at paragraph 42, where the judge says:

"It is unclear whether the Upper Tribunal formed a view as to whether the First-tier Tribunal had considered or failed to consider Mr Buck's statement or simply failed to refer to it in its judgment. Similarly the decision does not address the question as to whether Mr Buck's statement was in the bundle before the First-tier Tribunal when it deliberated and produced its decision."

21. Of course it is right that that observation, and more particularly paragraph 53 which I have also read, underpins the conclusion at paragraph 58; but paragraph 58 is the conclusion of law which constitutes the genesis of the judge's decision and the order he made.
22. I can see that it may be said here that the logic of Judge Sycamore's reasoning might perhaps have led him to indicate that permission to appeal against the March 2009 FTT decision ought to be given, and he did not in terms give any such direction. But the Upper Tribunal's duty to reconsider in light of the judgment must in the circumstances have led the Upper Tribunal to grant permission to appeal. Having granted permission to appeal, the Tribunal might in my judgment have allowed the appeal and sent the matter back so that the FTT could reconsider the merits having proper regard to Mr Buck's evidence; or, as Mr Fordham accepted, the Upper Tribunal might have reheard the evidence itself on the merits. Either course would have been consistent with the loyalty required of them to the reasoning of the High Court, and in particular to Judge Sycamore's ratio. But as Mr Fordham submits, the Upper Tribunal did neither. That is apparent from the passages I have read at paragraphs 38, 40, 42 to 44.
23. Miss Blackmore for the Secretary of State says that the High Court judgment was clearly based on a factual mistake on the evidence before Judge Sycamore. She has also shown us material appearing to demonstrate that Mr Buck's statement was indeed read by or to the FTT and put to witnesses at the FTT hearing. That material comes from a witness statement by a Ms McConnell of the Treasury Solicitor's department. It appears, as I understand it, that there was some attempt to put such material before Judge Sycamore but that was declined.
24. Miss Blackmore's case is really two-fold: first, she submits that the Upper Tribunal was not bound by the High Court conclusion that there had been a serious procedural error because that conclusion was based, as she puts it, on a mistake; secondly, she submits that in any event the High Court conclusion would only be binding to the extent that the Upper Tribunal had to decide whether to grant permission to appeal in the light of it, and not when they came to consider the substantive appeal.
25. In my judgment, both these submissions are, with respect to Miss Blackmore, erroneous. The first is wrong because if Judge Sycamore's decision was indeed flawed by error of fact then it could have been appealed, and that would have been the remedy for any such error. The second submission is wrong because the reviewed body is obliged to be loyal to the axiom which is the judge's ratio, wherever in the particular case that leads. The result is that the Upper Tribunal were bound to act consistently with the judge's conclusion at paragraphs 58 and 59 of his judgment. That must have led them not only to grant permission to appeal, but either, as I have indicated, to allow the appeal and send the matter back or to reconsider the case substantively on the merits.
26. I have in the course of the hearing for my own part wondered whether it might be said that the Tribunal in fact undertook the latter course and reheard the matter on the merits properly dealing with the witness statement of Mr Buck; but it seems to me plain, again from the passages I have cited (paragraphs 38, 40, 42 and 44), that Judge Levenson in the Upper Tribunal was confining himself to a consideration of the legality of the decision of the FTT.
27. Miss Blackmore's predecessor, Miss Olley, compiled a skeleton argument for the Secretary of State. That written argument contains a large number of points on the merits. For example, the appellant did not seek to call Mr Buck as a witness before the FTT. It is said that that assists the Secretary of State. Mr Buck was not referred to in the grounds of appeal from the FTT. As Judge Wikeley stated, Mr Buck's evidence is not a vindication of the appellant's conduct. On a true reading of Mr Buck's statement and having regard to the context, which involves of course protection of the vulnerable, the evidence does not really support the appellant's case; indeed, it is said it is not "substantially at variance" with that of other witnesses. The FTT and the Nursing and Midwifery Panel, it is asserted, were engaged on different exercises. The other allegations against the appellant, perhaps particularly the assault on his daughter, could arguably be said to be at least as serious, perhaps more serious, than the riot assault. A further hearing before the FTT, submitted Miss Olley, would after all this time be unlikely to serve the interests of justice and might be unfair to the other witnesses.
28. Relying on this material so far as relevant to her submission, Miss Blackmore argued that a full consideration of Mr Buck's evidence could not have made a difference.
29. But it is a premise of the High Court's conclusion to which, for reasons I have given, the Upper Tribunal were obliged to be loyal that Mr Buck's evidence might have made a difference. Were it otherwise, Judge Sycamore should have refused the application before him. In any case as my Lady, Macur LJ observed during the course of argument, the appellant is entitled to have the incident at the secure unit properly adjudicated without any flaw constituted by a serious procedural irregularity.
30. I acknowledge, indeed I would I think assert, that the appellant may have been fortunate in the result he obtained from Judge Sycamore. Some of Miss Blackmore and Miss Olley's points have very considerable force on the facts, but after the High Court judgment the Upper Tribunal was bound by law to proceed on the footing that the FTT had perpetrated a serious procedural irregularity which was not merely academic or hypothetical. The appellant has not had a decision within the tribunal system in which the evidence of Mr Buck has been properly considered.
31. For all these reasons I would for my part allow the appeal. We have not discussed the question of relief with counsel. If my Lord and my Lady agree, I am inclined to think it would be right to direct that the matter be returned to the Upper Tribunal for them to consider the appeal to it, permission having been granted earlier, upon the clear footing that there was a serious procedural error as described by Judge Sycamore in the FTT.
32. LORD JUSTICE PATTEN: I agree.
33. LADY JUSTICE MACUR: I agree too.