England and Wales Care Standards Tribunal

 


Slaney v Secretary of State [2007] EWCST 1078(PC) (08 November 2007)

Edward Leonard Slaney

-v-

Secretary of State
[2007] 1078.PVA

[2007] 1079.PC

APPLICATION TO STRIKE OUT UNDER REGULATION 4A

DETERMINATION

1. By a letter dated 24^th August 2007, the Secretary of State applies under Regulation 4A(1)(b) and 4A(1)(d) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 ('the Regulations') to strike out this appeal against the decision to include the applicant's name on the PoVA and PoCA lists. The application is made on the basis that the appeal is misconceived and/or has no reasonable prospect of success.
2. In accordance with Regulation 4A(2), before striking out an appeal, the parties must be invited to make representations on the matter and, if the applicant so requests in writing, the parties must be afforded an opportunity to make oral representations.
3. On 28^th August 2007 Mr. Reddish (nominated Chairman) made an order directing the Applicant to make representations within 10 working days of receiving the order as to why the appeal should not be struck and, at the same time, to indicate whether he wanted an oral hearing.
4. On 19^th September 2007 the Applicant submitted his response and indicated that he wished the application to be dealt with on the basis of the papers submitted. Mr. Slaney was released from prison on 26^th September 2007.

Background

5. The applicant was confirmed on both the PoVA and PoCA Lists on 1^st May 2007 in a letter dated that day and signed by Lisa Hill, the manager of the Safeguarding Children Operations Unit (PoCA). The Applicant was also placed on the Education Act list, commonly known as 'List 99'. The letter specifically states on the third page and under the heading 'What you can do now' "You now have the right of appeal, under section 4 of the Protection of Children Act 1999 to the Care Standards Tribunal against the decision to confirm your name on the PoCA List. You also have the right of appeal under section 86 of the Care Standards Act 2000 to an independent Tribunal against the decision to confirm you on the PoVA list. If you wish to exercise this right of appeal you must make an application to the Tribunal within three months of the date of this letter." The applicant is given the address of the Secretary of Care Standards Tribunal to whom any appeal should be made and he has exercised his right of appeal.
6. The reason that the Applicant was put on the PoCA list was because on 27^th June 2006 he was convicted of six counts of sexual activity with a female child under the age of 18. She is a person with diagnosed learning difficulties. He was sentenced to a 2 and a half year custodial sentence (three year extended sentence, although this latter element was quashed on appeal in early 2007); was placed on the Sex Offenders' Register for life, disqualified from working with children for life and placed on a Sexual Offences Prevention Order for life.
7. Mr. Slaney is now aged 68 years. The offences were against a close family member – a 15 year old girl that Mr. Slaney and his wife had been fostering for 6 years. He and his wife have been fostering for over 30 years. As a result of the conviction, Mr Slaney was deregistered as a Foster Carer with the National Fostering Agency on 28^th June 2006, which thereafter referred the Applicant to the PoCA team.
8. The main application made by the Secretary of State is that the appeal should be struck out as there is no reasonable prospect of success. 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.
9. The Respondent relies upon the applicant's conviction as evidence of his misconduct. In relation to misconduct, section 86(4) of the Care Standards Act 2000 makes it clear that this tribunal is not able to 'go behind' a conviction – that is we have to accept that there is a conviction and cannot revisit the facts upon which the conviction was based. I am satisfied that the convictions mean that the issue of misconduct is made out and that any panel at a full hearing would not able to consider it further. The only issue for the Tribunal, therefore, is whether the applicant is suitable to work with vulnerable adults and children. The burden of proving this is placed in this instance on the applicant. The answer to this point depends on what evidence the Applicant puts before the tribunal.
10. In his Appeal Form, the Applicant states that the circumstances prevailing at the time will not be repeated as he is no longer fostering. Mr. Slaney also states that he "abused the relationship but now understand how and why the relationship was corrupted (SOTP course) and this will not be repeated. I know and understand other failures in my lifestyle at the time of the offence and can now ensure that these failures are corrected." Mr. Slaney further comments that he has a very wide support network, with whom he has been honest and that he has not offended against any other person. Mr. Slaney states that he will not be seeking employment to work with children or vulnerable adults and that he his sorry and ashamed for what he did and the hurt he has brought to his victim, family, friends and the community. He says that he is remorseful and working hard to make it up to those he hurt and will continue to make it up to all his 'victims' for the remainder of his life.
11. In his letter dated 8^th September 2007 the applicant states that in allowing his appeal against sentence it was said (although it is unclear by whom and on what basis) that "No finding that there was a significant risk to members of the public of serious harm occasioned by the commission of further specified offences." In the letter Mr. Slaney also states that 'my offending period was for 1 month following a life time of work with young and old people' and 'for many years I have voluntarily assisted older people including a period as a relief warden in an older people's residence.' Although the applicant does not expressly state as much, I assume form his comments that he takes the view that the appeals are neither misconceived nor without a reasonable prospect of success and so would ask me to dismiss the application.
12. In the application to strike out, the Respondent relies on the case of Cowell v Secretary of State [2005] 521.PC; [2005] 522.PVA and Anthony Roger Crouch v Secretary of State [2005] 0802.PC/0803.PVA. In both cases the applicants were convicted of sexual offences against minors and sentenced to a period of custody. Crouch was given a lifetime Sexual Offenders' Prevention Order and placed on the Sexual Offenders Register for life. I note that in Crouch (where I accept that the offences were against a male rather than a female) it was said by the Tribunal that "the seriousness of the offences that he [Mr Crouch] committed make it inevitable that he would be found unsuitable to work with both children and vulnerable adults so that the second limb of the test would also be satisfied in respect of both lists."
13. The Respondent submits that given the serious and onerous nature of the applicant's convictions in this case, his inclusion on the Sex Offenders Register for life and his (then) incarceration the Tribunal can only come to one decision – to dismiss the appeals.
14. I have already indicated that I was satisfied that the first limb of the test (misconduct) was made out. I have to determine now whether or not the applicant is suitable to work with children and vulnerable adults. In considering this matter I have borne in mind that the applicant's victim was a young girl who had been in foster care with the family for about 6 years. The offences were a massive breach of trust in any circumstance but compounded by the fact that the girl had learning difficulties. This suggests that vulnerable people are at risk. There is nothing in what Mr Slaney has said in his documents that persuades me that a panel considering this case at a full hearing would come to any other conclusion other than that it is the seriousness of the offences (which cannot be diminished by reference the OASYS (the re-offending score system) or that the applicant is a 'category D' prisoner) that will make it inevitable that he will be found to be unsuitable to work with children and vulnerable adults.
15. In those circumstances I find that there is no reasonable prospect of success and so dismiss the appeals on that ground. In considering whether the appeal is misconceived, if it necessary for me to consider it given that I have dismissed the appeal on the basis of no reasonable prospect of success, I bear in mind the same matters I have set out above and come to the conclusion that, for the reasons set out in the preceding paragraph, the appeal is misconceived and should be dismissed.

ACCORDINGLY THE APPEAL IS STRUCK OUT

16. According to Regulation 4A(4), where the President or nominated chairman has made a determination to strike out an appeal, the applicant may apply to the President for that determination to be set aside. Such an application must be made no later than 10 working days after the date on which notice of the determination was sent to the applicant. Any application to set aside this determination must be made in writing, setting out the grounds in full (Regulation 4A(5)(b)).
17. So far as costs are concerned, I invite the Respondent, if it seeks an order for costs, to apply under Regulation 24 setting out why it considers the applicant had acted unreasonably in bringing or conducting the proceedings, and to provide a schedule of costs incurred.

Simon Oliver

Deputy President

8^th November 2007