England and Wales Care Standards Tribunal

 


Kaye-Engel v Secretary of State for Education and Skills [2003] EWCST 241(PC) (4 May 2004)

Natalie Kaye-Engel

-v-

Secretary of State for Education and Skills

[2003] 241.PC

Before

Mr. Simon Oliver (Chairman)

Dr. Jill Low

Dr. David Cochran

Sitting at 18 Pocock Street, London on 14^th April 2004

DECISION

Application

1. Ms Kaye-Engel ('the Applicant') appeals under Regulation 12 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 against a decision by the Secretary of State pursuant to section 142 of the Education Act 2002 to make a direction that the applicant be barred on grounds of misconduct from carrying out work to which s142 Education Act 2002 applies.

Appearances

2. Mr. Auburn of Counsel, instructed by the Treasury Solicitor, represented the Secretary of State. Ms Smith, a solicitor with the Treasury Solicitor, was also present and Ms Ann Hunter, team leader of the Misconduct Team of the Department for Education and Skills gave evidence. Ms Kaye-Engel did not attend and was not represented.

Preliminary

3. When the President of the Tribunal gave directions for the determination of this appeal, it had been intended that it would be considered on the papers alone. In the event, the Treasury Solicitor decided on 25^th March 2004 to make submissions in person.
4. As the Applicant is resident in Sydney, Australia, the members of the tribunal considered whether, in the interests of a fair hearing, the matter should be adjourned to enable Ms Kaye-Engel to either attend or be represented. We were aware that the Applicant is not working at present and has been unable to afford the cost of either a flight to this jurisdiction, obtaining representation or establishing a video link. The Applicant provided two mini cassettes of spoken evidence she wished the Tribunal to hear. The evidence ran to some two hours.
5. Having considered the matter, we came to the conclusion that we would not adjourn. We felt that an adjournment would not help the applicant as she would still be unemployed and would, therefore, face the same problems. We bore in mind the fact that her oral evidence was full and it was not as if she was not making a presentation to the Tribunal. We also felt that the interests of justice required a resolution to the matter as soon as possible. We announced this decision and the reasons for it at the start of the hearing.

Background

6. Ms Kaye-Engel was born on 8^th July 1950 and so is now aged 53 years. Although she was born in England, she spent 31 years in Australia before returning to the UK in about 2001. In August 2001, Ms Kaye-Engel was employed by Eastbourne College ('the school') as the matron of Gonville House. Eastbourne College is a boys' boarding school. The terms of Ms Kaye-Engel's employment required her to have a three month probationary period. Because the school had some doubts about her efficiency and ability to relate to pupils, it extended the probationary period until February 2002 to enable further assessments to take place.
7. According to the school, by February 2002 it had become clear that Ms Kaye-Engel was not suitable for a permanent contract as it was considered that she was finding the job difficult; there were continuing difficulties with pupils and she did not exert proper authority over petty cash and over-the-counter medicines. Because of these concerns, the school advised the Applicant on 20^th February 2002 that her employment would be terminated at the end of the summer term, in July 2002. For the avoidance of doubt, we make it clear at this stage that none of these matters have any bearing whatsoever on this case and the decision by the DfES to bar Ms Kaye-Engel.
8. On 28^th February 2002, Mr. Lamb, the Housemaster of Gonville House, received a formal complaint from a year 13 pupil, to the effect that the Applicant had made an accusation, in front of Year 9 pupils, that he was a homosexual and also that she had accused an unnamed Year 12 pupil of being a paedophile. As a result of the complaint, although she denied the allegation, Ms Kaye-Engel was suspended on full pay and a preliminary investigation undertaken. There were two meetings on 1^st March at which the applicant, Mr. Lower, the school's bursar, and others were present. During the second of these meetings terms were agreed for the immediate cessation of her employment with accommodation and pay in lieu of notice.
9. After a letter was sent by the Applicant to the school bursar on 3^rd March 2002, a further meeting was held on 6^th March during which revised terms in respect of pay, accommodation and food costs were agreed. Although there are details of other discussions, events and meetings which occurred subsequent to that meeting in our papers, Ms Anne Hunter made it clear in her evidence to the Tribunal that the decision to bar on the grounds of misconduct was made solely on the alleged accusations made on 28^th February 2002. On that basis, we do not need to and will not consider any other matters.
10. On 12^th April 2002 Mr. Lower wrote a letter to the Department of Health, on the basis of the school's statutory duty to inform that Department pursuant to DfE Circular 9/93, advising them of the alleged incidents that had occurred at the school. For reasons that are unclear, the Department for Education and Skills' Teachers Misconduct Team ('TMT') did not write to the school seeking evidence and documents until 13^th August 2002, some four months after they received the initial report. The applicant makes the point that she did not know about this referral and that had she been aware of it, she could have delayed her departure to Australia to answer it directly.
11. Upon receipt of the information from the school, TMT wrote to Ms Kaye-Engel, on 15^th September 2002, advising her that it had received a report from Eastbourne College about the incident on 28^th February 2002 and that the Secretary of State may have to consider whether to bar or restrict her employment under regulation 5 of the Educational (Restriction of Employment) Regulations 2000. These regulations were superseded by the 2003 regulations. After further information was sought from the School in January 2003, the TMT wrote to the Applicant on 17^th February 2003 asking for her explanation of the matter and inviting her to make representations (including mitigation) and to supply references and supporting evidence. That letter also indicated that the Secretary of State proposed to obtain a medical report from a psychiatrist to assist in making a decision and to shed light on whether Ms Kaye-Engel was suffering from a distinct condition which might be treatable.
12. No response to this letter or the further letter sent on 6^th May 2003 was received from Ms Kaye-Engel and no representations were received by TMT. On 28^th August 2003, Ms Hunter wrote to Ms Kaye-Engel informing her of the decision by the Secretary of State to bar her from carrying out work to which section 142 of the Education Act applied on the grounds of misconduct.
13. On 23^rd October 2003 the Applicant lodged her appeal to this Tribunal. The appeal is made on three grounds: that there is a lack of evidence, that the decision to bar was disproportionate and in breach of natural justice and that Ms Kaye-Engel's circumstances have changed. The applicant also makes a claim for damages. We are not able to consider Ms Kaye-Engel's change of circumstances as the regulations require us to determine the matter on the basis of the evidence available to the DfES at the time of the decision. As for damages, we have no jurisdiction to award them and so will not consider that request further. Directions were given by the President on 7^th January, 10^th and 23^rd March 2004 and there was a Preliminary Hearing (by telephone) on 8^th March 2004.
14. As indicated at the start of the decision, Ms Kaye-Engel did not attend the hearing. She did provide the Tribunal with two mini tapes. Having heard evidence from Ms Hunter, we listened to the taped evidence of the Applicant. Although the total length of the evidence ran to two hours, we heard only about 1 hour 40 minutes of that evidence because there were matters referred to which were either irrelevant to our decision, related to issues we had determined we would not consider or repeated points already made.

Conclusions

15. Ms Hunter confirmed that the TMT relied upon what had been said by the school in relation to their decision to dismiss Ms Kaye-Engel. Ms Hunter said that she was of the opinion that the Applicant's behaviour amounted to misconduct because it was not the type of behaviour one would expect from a house matron or a person in a position of trust. It seems to us that, apart from asking for further information, the TMT did not undertake much of an investigation and relied on the information provided by the school. Whilst that might not be of great concern in many cases because the evidence is of a high quality (for example in the form of police interviews), we are concerned here by the quality of the evidence that the school had available to it when the decision was made. For example, we note that the statements of the boys involved are not their own statements but a summary of what they said to Mr. Lamb (the house master). Also, the statements have, in some places, a gloss or comment from the House Master. They are anonymous and unsigned. We note that, apart from his initial complaint to Mr. Lamb, there is no direct evidence from the year 13 pupil. We regard the evidence as poor and unreliable.
16. Ms Hunter said, in evidence to us, that TMT were concerned about the impact that the applicants comments had on the boys. She also said in her affidavit that the Year 9 pupils were clearly distressed by what Ms Kaye-Engel is alleged to have said. We note that, there is no evidence of distress or any comment upon the impact of the words upon them in any of the statements by the pupils as recorded by the house master that we have seen.
17. Our concerns about the quality of the evidence are increased when we note that the statements were obtained from the boys at the end of the school day (the note refers to it being the evening). The alleged comments were made before school on 28^th February. The fact that the statements were obtained at the end of the school day means that it is possible that the boys involved had ample opportunity to discuss matters during the day and that what they said was a composite view rather than a direct report of what they heard.
18. Given the immediate denials made by Ms Kaye-Engel and recorded in the minutes of the meeting of 1^st March 2002, we felt that TMT ought to have undertaken a more thorough investigation, had that been possible. The four month delay between the receipt of the report from the school and the initial letter from TMT would not have helped any investigation, however, as memories fade.
19. Ms. Hunter confirmed to us that Ms Kaye-Engel was barred under section142 of the Act because of misconduct. The only guidance available on what might constitute misconduct is to be found in "Preventing Unsuitable People from Working with Children and Young Persons" issued by the DfES in May 2002. Ms Hunter told us that TMT relied upon Paragraph 19c which states that misconduct is 'behaviour which involves a breach of position of trust or a breach of standards of propriety, expected of the profession.' This paragraph is qualified by Paragraphs 20 to 22 which identify that the behaviour involved ranges from a sexual or otherwise inappropriate relationship with a pupil to violent behaviour and any offence involving serious violence. They are clearly of a criminal nature.
20. We are not satisfied that Ms Kaye-Engel's comments, even if they were said, amount to misconduct as understood in the guidance. We believe that the language which some of the boys are reported to have said the applicant used was inappropriate and ill-advised but that falls far short of misconduct. Indeed, even Ms Hunter accepted in her evidence that the applicant's behaviour was not the same level as the behaviour set out in the guidance. There is considerable difference between violent behaviour or an inappropriate sexual relationship (for example) and making comments to pupils. We anticipate that had it been thought appropriate to include less serious behaviour as a basis for misconduct, the Secretary of State would have done so at the time the guidance was issued. Just because conduct may have been (as Ms Hunter said) unusual or unpredictable, it does not mean it amounts to misconduct.
21. We were given no information about previous warnings about her behaviour given to the applicant and, in fact, Ms Hunter confirmed during the hearing that from the school's perspective as at 20^th February 2002, they felt that there was nothing inappropriate in her behaviour other than that referred to in Paragraph 7 of this decision. In the circumstances, we believe that the applicant's conduct would have merited a reprimand and perhaps an assurance that there would be no repetition of the behaviour concerning the year 13 pupil or any other pupil. By reaching this conclusion, we do not condone what Ms Kaye-Engel may have said, rather we feel that the steps taken were in excess of what would have been required.
22. A matter that gave Ms Hunter cause for concern was the fact that TMT had no explanation from the applicant and that all they had was the school's version of events and the impact on the school of the effect of terminating the applicant's employment at short notice. Of course, none of these amount to misconduct. Ms Hunter said that TMT had to rely on misconduct because there was no medical evidence available. This issue arises because there is a suggestion in the meetings of 1^st March 2002 that the Applicant was talking about having "twin souls" and that one of them might have taken over at the time the words were said. However, listening to the tapes, the applicant said that she had been joking about the twin souls at the time. Although we appreciate that we did not have the benefit of seeing the applicant in person or hearing her being cross-questioned by Mr. Auburn, we find from what we heard on the tapes that Ms Kaye-Engel was clear and put forward coherent arguments. Whilst there was a suggestion in the paperwork that Ms Kaye-Engel might have mental health problems, we found no evidence to support this in her oral evidence.
23. In the correspondence with the applicant TMT had asked her to undergo a psychiatric examination. It became clear during the hearing that this could be by a psychiatrist of the applicant's choice and at the TMT's cost. However, we do not regard it is a condition not to be barred that someone should provide a medical report as to their mental health. The burden of proof lies with the Secretary of State at the tribunal hearing and the obligation to be satisfied that an individual should be subject of a section 142 direction also lies with the Secretary of State. It is not for a person to prove why they should not be the subject of the direction.
24. Ms Hunter told us that she was faced with one side of the story and that she had limited evidence from the school and the applicant. She said that the choice she faced was either to do nothing or to bar Ms Kaye-Engel on the grounds of misconduct. We appreciate that Ms Hunter was faced with a dilemma, but we are entirely satisfied that the allegations do not amount to misconduct and so the direction under section 142 was inappropriate.
25. As we have determined this appeal on the basis that there was no misconduct, we do not need to make any findings on many of the issues that were in dispute. For example, at the meetings on 1^st March 2002, the applicant complained about what she thought was happening at the school at that time. The allegations made by the applicant include institutionalised psychological and physical bullying (with the latter resulting in bruising about which a parent had complained) and a regime which allegedly affords both opportunity for and the possibility of other forms of physical, sexual and emotional abuse. Ms Kaye-Engel has repeated these concerns in both her written and oral evidence. We are not able to judge whether they are valid or not. However, we feel that in case there is any substance in what Ms Kaye-Engel has said, on the basis that they raise child protection issues, it would be appropriate for the Treasury Solicitor to disclose the evidence (including the tapes) in this case to the Principal Officer in charge of Child Protection in East Sussex County Council so that he can determine whether or not there are child protection issues that should be considered by them. We intend to make an order that the evidence (together with a copy of this decision) shall be disclosed 21 days after the date of this decision unless either party objects in writing (with reasons for the objection) within that time, whereupon we shall consider the matter further. If there is no objection received, we request that the Treasury Solicitor sends the documents with a covering letter.

Order

1. We allow this appeal.

2. Pursuant to regulation 13(1) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003, we order the Secretary of State to revoke the direction made on 28^th August 2003 pursuant to section 142 of the Education Act 2002 in respect of Natalie Kaye-Engel.

3. We order the Treasury Solicitor, 21 days after the date of this decision to disclose the evidence in this case (together with a copy of this decision) to the Principal Officer in charge of Child Protection in East Sussex County Council provided that neither party has objected in writing before that date.

4. Pursuant to regulation 24 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, we make no order as to costs.

The decision was unanimous.

Dated the 4^th day of May 2004

Signed:

Simon Oliver, Chairman

Jill Low

David Cochran