England and Wales Care Standards Tribunal

Maude v Secretary of State [2006] EWCST 766(PC) (23 October 2006)

Helen Louise Maude -v- Secretary of State [2006] 766.PC DECISION ON APPLICATION FOR LEAVE UNDER s 4(2) PROTECTION OF CHILDREN ACT 1999.
1. Ms H Maude, born on 20^th February 1987, was employed by the Little Ladybirds Nursery from 10^th July 2005 until 15^th July 2005 when she was dismissed, for reasons that are not relevant to this Application for Leave.
2. She was notified by the Secretary of State that she had been provisionally included on the PoCA s 1 list on 31^st October 2005. She was notified that she had been provisionally included on the PoVA list on 14^th February 2006.
3. By Appeal Application Form A dated 10^th August 2006, but received by the Tribunal on the 22^nd August 2006, Richmond Anderson Goudie, Solicitors on behalf of the Applicant, sought leave under s 4(2) of the Protection of Children Act 1999 to have the issue of her inclusion on the PoCA list determined by the Tribunal instead of by the Secretary of State.
4. Section 4(2) states "Subject to subsection 5 below (not relevant in this case), an individual who has been provisionally included for a period of more than 9 months in the list kept by the Secretary of State under section 1 above may, with the leave of the Tribunal, have the issue of his inclusion in the list determined by the Tribunal instead of by the Secretary of State".
5. The application was considered by Mr Simon Oliver, a nominated Chairman of the Tribunal. Mr Oliver asked the Secretariat to write to both parties as follows: "Having read the appeal application form it seems that the criteria in section 4 of the Protection of Children Act 1999 and schedule 4 paragraph 2 of the Tribunal Regulations are made out. The Chairman is minded to grant leave to appeal but before he does, he has written to the Respondent to ask if he has any objection or observations to make. ..[I]f [the Respondent] object to leave being granted the Chairman will give directions to determine that issue." This letter was sent to the parties on 23^rd August 2006.
6. The Respondent replied to this letter by a letter dated 24^th August 2006 from Mr I Alderson, the Manager POCA Team, Children's Safeguarding Operations Unit (PoCA) received by the Tribunal on 29^th August 2006. Mr Alderson states that the Secretary of State considers that a risk assessment to be crucial to any consideration of the Appellant's suitability to work with children and vulnerable adults, and requests that the application to the Care Standards Tribunal under s 4(2) be stayed to allow the completion and outcome of the medical risk assessments. The letter incorrectly refers to the "Appellant's application for leave to appeal the provisional listing." It of course should have said "for leave to have the issue of his inclusion in the list determined by the Tribunal instead of by the Secretary of State."
7. The Secretary of State sought a stay of the leave application until 20^th November 2006.
8. Mr John Reddish, as Nominated Chairman, asked the Secretariat to copy Mr Alderson's letter to the Appellant's representative seeking a Response from him. The letter was sent on 5^th September 2006.
9. The Appellant's Solicitor responded by letter dated 19^th September 2006, received by the Tribunal on the 20^th September 2006 asking for the matter to be progressed promptly.
10. It is relevant to note that paragraph 6(1) of Schedule 4 states that "the President or the nominated chairman shall grant or refuse leave in relation to an application under paragraph 2 without a hearing, as he sees fit."
11. The papers were placed before me subsequent to the letter from the Appellant's Solicitor, and in view of the difference of approach taken by the parties, I decided to set the matter down for an oral hearing. The parties were informed on 10^th October 2006 that the hearing would take place on 20^th October 2006 at Newcastle Combined Court.
12. The Tribunal then received an email from the Children's Safeguarding Operations Unit dated 12^th October 2006 stating that having received the outstanding risk assessment, the Secretary of State had made the decision to confirm Miss Maude on both lists. The letter goes on to say: "As the matter of her provisional listing has now been decided I would assume the matter will now be closed…"
13. This letter was followed by a more detailed letter from Treasury Solicitors dated 17^th October 2006. The letter states: "We consider that, now that the Secretary of State has confirmed Ms Maude's inclusion on the PoCA list, the Tribunal lacks the power to make its own determination under section 4(2). If the Appellant is not prepared to withdraw her application, then the appropriate course would be for the Tribunal to strike it out either on the basis that the Tribunal lacks jurisdiction to consider it or on the basis that the application is misconceived."
14. Solicitors for the Applicant confirmed by email dated 17^th October 2006 that the Applicant wished to proceed with her present application.
15. At the hearing before me on 20^th October 2006, Mr J Barker Solicitor of Richmond Anderson Goudie Solicitors appeared on behalf of the Applicant and Mr P Kramer of Counsel appeared on behalf of the Respondent.
16. It was agreed that the following matters were before the Tribunal for decision:

The effect on an application under s 4(2) (for leave to have the issue of inclusion to be determined by the Tribunal instead of by the Secretary of State) if the Secretary of State confirms the name on the list subsequent to the application for leave being lodged but prior to a decision being made by the President, although after the date for the oral hearing to consider leave has been set down;

If, contrary to the Treasury Solicitors letter dated 17^th October 2006, the view is taken that the application for leave should not be struck out, whether leave should be granted;

If leave is granted, Directions relating to bringing the matter to a hearing before the Tribunal.

17. I deal initially with the first bullet point as set out above. I agree with Mr Kramer to the extent that there is no provision in the 1999 Act for the duty or power of the Secretary of State to confirm listing to be suspended pending an application for leave being considered and decided. Thus prior to leave being granted, the Secretary of State retains the power to confirm a person's name on the list. However, I disagree with him when he submits: "[Once confirmed] there is no longer any power in the Tribunal to determine the issue 'instead of' the Secretary of State."
18. I believe that the Tribunal has the discretion to grant leave under s 4(2) as soon as the Response ( Paragraph 4, Schedule 4) to the application for leave has been obtained. The President shall grant or refuse leave without a hearing, as he sees fit (Paragraph 5, Schedule 4). There is nothing in s 4(2) of the Protection of Children Act 1999 that excludes the President from considering whether to grant leave to appeal other than s 4(5), which is not relevant in this case.
19. The important issue in this case in my view is whether leave should be granted in circumstances where the Secretary of State has confirmed the Applicant on the list. Here I do agree with Mr Kramer. He cited the debates on the Bill when it was before the House of Commons on 30^th April 1999. The Member of Parliament who introduced the Bill said: "What is now Clause 4(2)…safeguards the position of individuals listed provisionally by giving them an avenue of approach to the Tribunal, with the Tribunal's leave, if they have been listed provisionally for more than nine months. That will not, and cannot, be a right of appeal; rather it protects individuals against being kept provisionally listed for unreasonable periods without a decision from the Secretary of State by transferring the decision, where the Tribunal agrees, to the Tribunal itself."
20. I agree with Mr Kramer therefore that the fact that confirmation has been made by the Secretary of State is of itself, on the facts of this case, reason not to grant leave under s 4(2). The Tribunal's normal role is an appeal body applying s 4(1) when hearing appeals from the administrative decision of the Secretary of State. It would be only in the most unusual set of circumstances where it would grant leave under s 4(2) to consider the question whether to include the person's name on the List. As the Member of Parliament who introduced the Bill said: "The tribunal will most appropriately function as a reviewing body, rather than substituting the Secretary of State's initial administrative decision. However, it is clearly right that there should be protection from unreasonable delay, and individuals should not be kept waiting interminably for the Secretary of State to act."
21. Accordingly:

The application by the Secretary of State to strike out the application for leave under s 4(2) is dismissed.

The application by the Applicant for leave under s 4(2) is refused under paragraph 6(1) of Schedule 4.

ORDERS ACCORDINGLY

His Honour Judge David Pearl

President

23^rd October 2006.