England and Wales Care Standards Tribunal

 


Smoller v The Secretary of State for Education and Science [2007] EWCST 862(PC)_1 (20 August 2007)

STEVEN SMOLLER

-v-

SECRETARY OF STATE FOR EDUCATION AND SCIENCE

[2006] 862.PC

[2006] 863.PVA

DECISION ON APPLICATION FOR REVIEW

1. Mrs. Donna Carty, who represented her husband, Mr. Steven Smoller in his appeal, has, by a letter of the 29^th July 2007, sought a review of the Tribunal's decision.
2. Under regulation 25 of the Protection of Children and Vulnerable Adults and Care Standards Regulations 2002, a party may apply for such a review on one or more of three grounds,

a) that the decision was wrongly made as a result of an error on the part of the Tribunal staff,

b) that a party, who was entitled to be heard at a hearing but failed to appear or to be represented, had a good and sufficient reason for failing to appear,

c) that there was an obvious error in the decision.

3. The application for a review must set out the grounds in full (reg 25(2)(b)) and may be refused by the President or by the chairman of the Tribunal which decided the case if, in his opinion, it has no reasonable prospect of success (reg 25(3)).
4. Mrs. Carty's letter does not refer to the regulations at all, but it contains no allegation of any error on the part of Tribunal staff. Mr. Smoller was represented (by her) and had the opportunity (although he did not fully avail himself of it) to be present during the hearing. Mrs. Carty must therefore be relying on ground c) – that there was an obvious error in the decision.
5. Much of Mrs. Carty's letter reiterates evidence given in support of Mr. Smoller's appeal. In particular she revisits extensively the evidence about the masturbation incident. She also deals at some length with the evidence about Mr. Smoller's codeine dependency. In so far as the letter suggests any obvious error, the suggestion seems to be that the Tribunal failed to examine and consider all the evidence before it and failed properly to explain how and why it had accepted and rejected evidence in reaching its decision.
6. A Tribunal must state the reasons for its decision (reg. 23(3)). In so doing, it will, necessarily, make clear what evidence it has accepted and what it has rejected. It does not have to deal separately with each piece of evidence, or indeed each witness, so long as the reasons for its decision are clear. A failure to give reasons sufficient to enable the parties to understand how the decision was reached would be an obvious error.
7. Mrs. Carty complains that the decision does not contain any reference to her evidence (in addition to representing her husband, she also gave evidence on his behalf), nor any reference to the cases of other American social workers and she complains about the Tribunal's treatment of Dr. Taberner's evidence.
8. The Tribunal's decision was primarily founded on facts which were admitted or undisputed, as set out in paragraphs 4 to 40 of the decision. Those matters included Mr. Smoller's prevarication about the masturbation incident, but not the incident itself, which was denied.
9. Mrs. Carty's complaint about the rejection of her evidence about that incident has therefore no relevance to the primary decision of the Tribunal. The evidence of the fate of other American social workers has no relevance to the questions of whether Mr. Smoller was guilty of misconduct, whether any misconduct caused risk of harm and whether he was suitable to work with children. That part of Dr. Taberner's evidence which related to the primary decision was undisputed; the points accepted and relied on by the Tribunal are set out at paragraphs 28 and 29 of the decision.
10. So far as the Tribunal's primary decision, founded on facts which were admitted or undisputed, is concerned, Mrs. Carty has failed to show any lack of proper explanation or clarity about the reasons for the decision.
11. For the reasons set out in paragraph 41 of the decision, the Tribunal, having expressed its primary decision, went on to consider the disputed matters – principally the Lowestoft incidents (in respect of which it was not satisfied as to misconduct) and the masturbation incident (in respect of which it was so satisfied).
12. It is in relation to the rejection of her evidence about the masturbation incident that Mrs. Carty's complaint is at its most vigorous.
13. The Tribunal said at paragraphs 44 and 45 of its decision that it accepted the evidence of Mrs. Lake and Mrs. Abdelaoui. It explained at paragraph 47 that it did not find Mr. Smoller's account convincing, not least because of his previous prevarication and manipulation of his account. At paragraphs 48 and 49 the Tribunal makes clear its finding that the incident occurred as Mrs. Lake described it. As Mr. Smoller admitted that on that occasion he was out in the car on his own, the Tribunal did not need to deal specifically with Mrs. Carty's evidence that, at that time, she did not allow him to go out in the car on his own.
14. Mrs. Carty has not shown any failure properly to explain the Tribunal's treatment of the evidence relating to, and the basis for, its secondary decision.
15. Accordingly, no obvious error in the decision having been demonstrated, Mrs. Carty's application for a review under regulation 25 has, in my opinion, no reasonable prospect of success and it is refused under regulation 25(3).

Andrew Lindqvist

Chairman

Date: 20 August 2007