England and Wales Care Standards Tribunal

Homewood v Secretary of State for Education and Skills [2005] EWCST 551(PT) (27 February 2006)

In the Care Standards Tribunal

Between:

Alison Jane Homewood

Appellant

v

The Secretary of State for Education and Skills

Respondent

[2005] 551.PT

Before:

Mrs Meleri Tudur (Chairman)

Ms Marilyn Adolphe

Mrs Susan Last

Hearing date: 20^th February 2006

Appeal

The Appellant appealed under Section 144 of the Education Act 2002 against the direction made by the Secretary of State for Education and Skills that pursuant to Section 142 of the Education Act 2002 she may not carry out work to which the section applies on the grounds that she was unsuitable to work with children.

Representation

On the request of the Appellant, the appeal was dealt with on the papers alone and submissions were made by the Appellant by letters and by Ms L Busch of Counsel and Helen Turnbull, Solicitor, on behalf of the Respondent.

Facts

1. On the 24^th July 2003, the Appellant was convicted upon indictment of cruelty to a person under 16 years contrary to Section 1(1) of the Children and Young Persons Act 1933.
2. She was sentenced to a Community Punishment Order for 100 hours and ordered to pay £1718 towards the costs of the prosecution, on the 27^th October 2003. There was no appeal against conviction or sentence.
3. On the 21 November 2003, the Respondent was made aware of the conviction and sentence by a referral by letter from the London borough of Bromley Council.
4. On the 3^rd February 2004, the Respondent notified the Appellant by letter that it was her intention to investigate whether it would be appropriate to make a direction under Section 142 of the Education Act 2002. The Appellant submitted representations against the making of the direction on the 9^th March 2004.
5. Because the Appellant had made reference in her representations to her medical condition, a medical interview and medical report were requested by the Respondent. Obtaining the medical evidence and the Appellant's response to the note of interview was competed on the 9^th February 2005.
6. On the 10^th June 2005, the Respondent made a direction pursuant to Section 142 of the Education Act 2002 that the Appellant be prohibited from working with children in schools or FE establishments for a period of 10 years from the making of the direction.
7. The Appellant appealed against the making of the direction on the 8^th September 2005. The letter of appeal stated that the 10 year ban commenced 23 months after the conviction and 31 months after the Appellant was originally suspended from her employment in November 2002.
8. On the 10^th October 2005, the Respondent filed a Response, confirming her intention to oppose the Appellant's appeal.
9. On the 16^th November 2005, His Honour Judge Pearl, President of the Tribunal made directions to progress the case. He confirmed that the Appellant had notified the Tribunal Secretariat by telephone that the only basis for her appeal is on the ground that the Respondent had waited 23 months to issue the direction, and issued a direction that the applicant inform the Tribunal whether she challenged the submission made to the Tribunal by Ms Busch on the 8^th November 2005 and that the Respondent submit a further short submission in response to the Ground of Appeal.
10. In a letter dated the 24^th November 2005, the Appellant explained that her appeal was against the date of her inclusion onto "List 99". It was the Appellant's view that the fact that the 10 year ban started 23 months after her conviction in effect made the ban a 12 year ban instead of 10, thereby adding a further 20% to its length.
11. The Respondent's submission in response to the direction confirmed the Respondent's view that the time taken to reach the decision was entirely reasonable but that notwithstanding the reasonable timescale, invited the Tribunal to dismiss the appeal because the Tribunal has no power to order the Secretary of State to back-date the direction, which was the Appellant's only requested remedy.
12. The submission referred to Section 144 of the Education Act 2002, which creates the right of appeal to the tribunal "..against the decision to give the direction.", and to Regulation 13 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003, which identify the tribunal's powers on appeal: "where on an appeal…the tribunal considers that the direction is not appropriate it may order the Secretary of State to revoke or vary the direction.".
13. The submission was that the Tribunal's power to order the Secretary of State to vary the direction does not extend to the date of the direction itself. Because the Secretary of State has no power to backdate the direction it was submitted that the Tribunal cannot order her to vary the direction in that way either.
14. On the basis that the Tribunal has no power to provide the Appellant with the remedy sought the Respondent invited the Tribunal to dismiss the appeal.
15. In the alternative, the Respondent submitted that the Tribunal should dismiss the Appellant's appeal on the basis that the Appellant did not assert any ground of appeal which goes to challenge the appropriateness of the direction itself.
16. Finally, the Respondent submitted that the Appellant's appeal should be struck out on the basis that the appeal is outside the jurisdiction of the tribunal or otherwise misconceived, pursuant to Regulation 4A(1)(b) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002.
17. On the 8^th December 2005, Mr Mark Rowland, the nominated chairman, issued a further direction that the Appellant should make further written submissions in reply to the submissions of the Respondent on the jurisdiction of the Tribunal.
18. By email dated the 3^rd January 2006, the Appellant sought an extension to the 10 working days form the date of receipt of the Directions of Mr Mark Rowland to allow her to take legal advice from her Union. His Honour Judge Pearl allowed the application and extended the time for submission to the 16^th January 2006.
19. By letter received by the Tribunal on the 13^th January 2006, the Appellant expressed her disagreement with the contents of the submission and particularly with the submission that the Tribunal has no jurisdiction to order the Secretary of State to backdate the direction. The Appellant argued that if there was no right of appeal against the date the decision was made, the process was unfair and one sided.

Tribunal's conclusions with reasons.

20. We considered the application of the Respondent to strike out the appeal as a preliminary issue.
21. The Appellant's request was for the Tribunal to backdate the direction to an unspecified date which was earlier than the 10^th June 2005, on the basis that the Respondent had taken an inordinate time to make the decision in respect of the direction.

The Law

22. Section 144 of the Education Act 2002 provides that: "A person in respect of whom a direction has been given under section 142 may appeal to the Tribunal….. (a) against the decision to give the direction; (b) against a decision not to vary or revoke the direction."
23. Regulation 13(1) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 provides that: "Where on an appeal under Regulation 12 the Tribunal considers that the direction is not appropriate it may order the Secretary of State to revoke or vary the direction."
24. We considered the powers given to the Tribunal under the Regulations. In the event that the Tribunal considers that a direction is "not appropriate", it can only order one of two things: it can revoke the direction or vary it. If the direction is revoked then it ceases to exist in its entirety. If it is varied then it continues, essentially in its original form, but with some variation.
25. In our view, the Tribunal can only vary the content of the direction and not its basic structure: the power to change the date of the decision would be far reaching indeed, and it is our view that it was not the intention of the legislation to give the Tribunal that power.
26. The Appellant in this case has not sought to contest the appropriateness of the direction. She is not therefore questioning the content of the direction, despite the fact that she does appear to be questioning its length. In those circumstances, we have concluded that the Appellant is asking the Tribunal to do that which it cannot, namely to change the date on which the decision which is the subject of the appeal was made and consequently the appeal is outside the jurisdiction of the Tribunal.
    
27. This is the unanimous decision of the Tribunal

Order

The appeal is struck out.

Dated the 27^th February 2006

Meleri Tudur Chairman.

Ms Marilyn Adolphe

Mrs Susan Last