England and Wales Care Standards Tribunal

AW3

-v-

Secretary of State for Education and Skills

[2007] 0954.PT

-Before-

Mrs. Carolyn Singleton

(Chairman)

Mr. James Churchill

Mr. Ron Radley

Heard at the Combined Courts, Leeds on 17^th September 2007

The Appeal

1. AW3, (the Appellant) appeals against a direction by the Secretary of State under section 142 Education Act 2002 that his name be included on the list of people prohibited from working with children because of his unsuitability. His appeal lies under s. 144(1)(a) of that Act.

Representation

2. The Appellant was represented by Ms. Hart of counsel and the Respondent was represented by Ms. Olley of counsel.

Burden of Proof

3. It was accepted that the burden of proof lay with the Respondent; the standard of proof being on the balance of probabilities.

Preliminary Issues

4. At a directions hearing on 13^th June, 2007, a Restricted Reporting Order under Regulation 18(1) was made. That Order was extended at the hearing.

Facts of the Case

5. By letter dated 10/12/2006 from the Respondent, the Appellant was placed on the list barring him from employment to which S.142 of the Education Act 2002 applies on the grounds of his unsuitability to work with children. The grounds for that action are contained in that letter.
6. The Appellant's grounds of appeal are at document 5 of the tribunal bundle, although it was accepted at the hearing that all those, except for ground 5 were no longer issues for the Tribunal to consider.
7. The facts of the case were, mostly, agreed.
8. The Appellant had been a pupil at Colne Valley High School ("the school"). In 1997, after leaving school, he began to work there as a trained first aider and then as a classroom assistant from September 2000. He was also a volunteer worker with St. John Ambulance.
9. In March 2002 unsubstantiated allegations of inappropriate text messages being sent and inappropriate conduct were made against the Appellant by two female pupils at the school. Following the investigation, detailed recommendations were made to the Appellant by the head teacher, both verbally and in writing, as to how the Appellant should conduct himself in order to protect his own security when dealing with young people outside of the school environment.
10. On 10^th June 2005 a complaint was made by the mother of SL, a pupil at the school, concerning the Appellant's contact with SL. This included, inter alia, an allegation that SL had told the Appellant that she had been raped but that he had not reported this matter to the appropriate authorities because SL had told him that she had already informed the school nurses.
11. Following this, the Appellant was given specific instruction by the deputy head teacher at the school not to have any contact with SL, either in or out of school, not to counsel pupils and to inform the child protection officer of any disclosure made by a pupil.
12. On 21^st June 2005 the Appellant was instructed that he should have no further contact with SL for his own professional security and that if SL were to contact him he must in form a deputy head teacher at the school.
13. On 13^th October 2005, SL told two school nurses that there had been further contact between the Appellant and herself, including a meeting between them on Sunday 9^th October 2005.
14. That same day a decision was made by the local Child Protection Unit, the matter having been referred to them, to suspend the Appellant. It was made clear to the Appellant that he should have no further contact with any pupil. SL was interviewed by the police. No criminal offence was disclosed and the matter was, therefore, referred to the school to be dealt with under its disciplinary procedures.
15. On 18^th November 2005, the Appellant attended a meeting with a deputy head teacher in the presence of his union representative and an official from Kirklees Metropolitan Council. He agreed, inter alia, that he had arranged to meet SL on the 9^th October 2005 but had done so in his capacity as a St. John Ambulance officer because SL was depressed and suicidal.
16. There followed a number of occasions where SL reported to the school that the Appellant had contacted her either by mobile phone or text message and on 2^nd and 5^th December 2005 telephone calls from the Appellant to SL were intercepted by a teacher at the school. On the 5^th December 2005 the Appellant told the teacher aggressively, in an intercepted mobile phone call, that she was dealing with four suicidal girls. Later that day in another intercepted call the Appellant told a second teacher that SL kept calling him and that her mental health was worse than expected. He was told not to speak to SL again and that he was in no position to diagnose SL's mental state.
17. On 6^th December 2005 in a conversation between the Appellant and a teacher he maintained that all his contact with SL had been in his capacity as an officer of St. John Ambulance. He was told to change his mobile phone number and not to contact SL again.
18. On 22^nd December 2005, West Yorkshire Police issued the Appellant with a warning under the Harassment Act for his continued contact with SL. He had not accepted his guilt but agreed that he had continued to have contact with SL despite his suspension from the school.
19. On 4^th January 2006, the Appellant was notified of the school's intention to hold a disciplinary hearing on 18^th January. He was invited to attend but did not do so.
20. On 18^th January 2006, the Appellant resigned.
21. The findings of the disciplinary hearing were adjudged to amount to gross misconduct and the hearing concluded that the Appellant would have been dismissed, had he not resigned.
22. In June 2006, the Respondent was notified that the Appellant had been dismissed from St. John Ambulance, as he had inappropriately used his position of trust and acted in contravention of their Child Protection Statement.
23. On 8^th June 2006 the Respondent wrote to the Appellant inviting submissions from him as to whether or not action should be taken against him under S.142 of the Education Act.
24. The Appellant's response enclosed a statement made by him in December 2005 in which he maintained that he had not breached pupil/staff boundaries and that, without his intervention, SL would have committed suicide.
25. The Appellant, in that response, stated that he had not seen further documents. However, he failed to respond to an enquiry dated 10^th August 2006 asking which documents he required. He also failed to respond to a request for him to give details of his dismissal from the St. John Ambulance He did not respond to a letter dated 30^th October 2006 inviting him to make any final representations.
26. By letter dated 10^th December 2006 the Appellant was notified of the Respondent's direction that he be barred from employment to which S.142 of the Education Act 2002 applies on the grounds that he is unsuitable to work with children.

The Law

27. Appeal against the decision lies under S.144 of the 2002 Act. If, on appeal, the Tribunal considers that the direction is not appropriate, it may order the Respondent to revoke or vary the direction.

Evidence for the Respondent

28. Evidence was heard from Ms. Andrea Kleefstra who is a Senior Casework Officer in the Children's Safeguarding Operations Unit at the Department for Children, Schools and Families, Darlington. Her statement appears at document 91 of the bundle. She stated that the Appellant had been advised about his conduct as early as 2002 as indicated above and that, following the allegations made in 2005 he had been given specific instructions. That advice had been ignored and had led to his suspension but, notwithstanding that, he had continued to have contact with SL. She pointed out that he had been given advice on 6 occasions between June and December 2005, that advice being to have no further contact with SL, but he had failed to heed the instructions. She told the tribunal that the Appellant's dismissal from the St. John Ambulance was significant because he had frequently maintained that his contact with SL was as a result of his St. John Ambulance role when it was clear that they were not aware of the contact he had with SL.
29. She told the tribunal that, within the school, the Appellant would have been aware of SL's vulnerability. He knew of the alleged rape in 2005, that she was self-harming and that she claimed to be suicidal. There was significant potential for serious risk of harm. The Appellant was working with vulnerable young people yet had failed to maintain professional boundaries. He had behaved inappropriately throughout the period concerned, failed to pass essential information to appropriate professionals and accepted a risk which he was clearly not qualified to take.
30. In making the decision to bar the Appellant the Respondent had considered all the available options available to him, including an official warning, but there had been no evidence before him that the Appellant had listened to or accepted advice. There was no evidence that the Appellant had understood the inappropriateness of his behaviour or that he understood the boundaries. There had been no evidence before the Respondent that the Appellant acknowledged any wrongdoing and, therefore, the Respondent had had no confidence that he would change his behaviour. The decision under appeal had, therefore, been made.

Evidence for the Appellant

31. The tribunal heard evidence from the Appellant. He referred to his last witness statement which appears at document 155 of the bundle and which is dated July 2007. He acknowledged that the sentiments expressed in this statement are different to all comments made before in this case. This was, he said, due to the benefit of hindsight and having a greater period of time to reflect on matters. He now accepts that his conduct was "totally inappropriate, unprofessional and unforgivable".
32. In cross-examination he was taken through his grounds of appeal. All those grounds were abandoned with the exception of ground 5. He maintained that, although he put SL at risk, he no longer poses a risk. He does, however, accept that it was appropriate for the Respondent to take the action that he did.
33. He confirmed that his witness statement at document 155 was written by himself in conjunction with his solicitor and that it represents a significant change in his attitude. He accepted that it represents the first time that he has shown any recognition of his actions or remorse for them.
34. The Appellant was asked by the tribunal as to who he thought had been harmed by his actions. He responded that SL, himself and their respective families had been harmed. He stated that he had reached this conclusion because he had been unable to gain employment since being barred and he has suffered a lot of stress as a result of the proceedings. He acknowledged that he had made a lot of mistakes but felt that the decision to bar him had been heavy-handed.
35. He told the tribunal about his desire to be trained at a higher level within the ambulance service but that he is unable to do that unless he is reinstated in that employment.
36. When questioned about the allegation that he had contacted SL by mobile phone after having been suspended, he told the tribunal that, in fact SL had always contacted him first but that he could offer no other evidence of this than his word.
37. H acknowledged to the Tribunal that, in allowing himself to get involved with SL, it had given SL false hope that he could offer help as good as or better that counsellors and, in doing that, he had detracted from the counselling team. He said it had been a "slow-dawning conclusion" reached over the 8 months since receiving the barring order and that his inability to find work in his chosen field had focused his mind.

Tribunal's Decision

38. The Tribunal made a general observation that it would have been helpful to have seen evidence of the school's appointment and induction procedures. It noted that the Appellant was appointed to the school within weeks of having completed his education there and queried the wisdom of such action. The Tribunal was unaware of what inhouse training was available for support staff.
39. Even though the grounds of appeal had been abandoned with the exception of ground 5, the Tribunal still had to consider whether the Appellant poses a risk to children and whether he is unsuitable to work with them. It had before it a number of letters and statements from the Appellant dating from when allegations were first made in June 2005 up to his final statement of July 2007. The difference between all his comments in documents prior to that of July 2007 and his last statement is considerable. The statement of July 2007 represents the first and only acknowledgement of any wrongdoing on his part combined with his oral evidence to the Tribunal at the hearing. This caused the Tribunal considerable concern. The Appellant had had ample opportunity to acknowledge his inappropriate behaviour but had made no attempt to do so until the impact of the barring order had taken effect. The Tribunal considered that the "volte face" executed by the Appellant seemed to have been brought about because he can no longer find employment in his chosen field rather than through a genuine understanding of what he had done wrong. In oral evidence, his remorse seemed to be largely directed to the impact these proceedings had had on himself.
40. The evidence was that the Appellant had persistently ignored advice, both oral and written and, indeed, had ignored written instructions. His behaviour had, in the view of the Tribunal, been arrogant and somewhat contemptuous of his employers. Whilst the Appellant now states that he regrets his actions, the Tribunal did not feel, on balance, that it could have confidence in his claim to have "seen the light" when for nearly two years he appears to have taken a totally different view. The Tribunal has a duty to uphold public confidence and was not satisfied that the Appellant's change of heart was genuine. The Tribunal agreed with their colleagues in CN v. Secretary of State -"We cannot underestimate the importance we attach to public confidence. When the Tribunal considers the question of unsuitability, it must look at the factual situation in the widest possible context"
41. The Tribunal considered that the Appellant, for the most part, had shown a total lack of understanding of the need to maintain professional boundaries when working with children and that, on balance, the Respondent's decision to bar him had been appropriate in all the circumstances.

41. Accordingly, the appeal is dismissed.

42. This is a unanimous decision.

Mrs. Carolyn Singleton

Mr. James Churchill

Mr. Ron Radley