England and Wales Care Standards Tribunal

MC v Secretary of State For Children, Schools and Families [2007] EWCST 1193 (PT) (11 April 2008)

MC

Appellant

-v-
The Secretary Of State For Children, Schools and Families [2007] 1193.PT

Respondent

INTERLOCUTORY DECISION

On 2 April 2008 sitting at the Care Standards Tribunal, Pocock Street, London

REPRESENTATION

Mr Crosfill of Counsel (Instructed by Fisher Jones Greenwood) for the Appellant

Ms Olley of Counsel (Instructed by the Treasury Solicitor) for the Respondent

Before
Mr I Robertson

THE PRELIMINARY ISSUE

1. This matter was listed for preliminary argument regarding the role and jurisdiction of the Care Standards Tribunal in appeals brought by persons included on List 99 under Section 144 of the Education Act 2002 and Regulation 12 Education (Prohibition from teaching or working with Children) Regulations 2003. There are a number of decided cases which have provided guidance but as far as can be ascertained there has been little argument regarding the scope of the tribunal's role. Of the two cases cited FH [2005] 0552.PT was decided on the papers and in O'Hara [2006] 858.PT the Appellant was not represented. O'Hara in fact followed FH and repeated much of what was said therein.

BACKGROUND

2. I will deal with this very briefly as no evidence has yet been filed relating to the allegations. The appellant was a volunteer helper at a primary school. It has been alleged that he behaved in an inappropriate and over familiar manner with an 11 year old girl. As a result he was referred to the Secretary of State and as part of the Secretary of State's consideration an assessment was undertaken by an expert, to consider risk. Written representations were received from the Appellant who had full disclosure of all that was considered by the Secretary of State. Despite these representations the decision was taken to place the Appellant's name on List 99.

THE LAW

3. The Statutory framework is helpfully summarised in O'Hara (above) at Paragraphs 32 – 38;

32. Section 142(1)(a) of the Education Act 2002 provides that the Secretary of State, in relation to England, may direct that a person may not carry out work to which section 142 applies. This is the process widely referred to as "placing a teacher's name on List 99". Section 142 applies to the provision of education at a school and elsewhere.

33. Section 142(4) of the 2002 Act provides that a direction may be given in respect of a person only on the specified grounds. These are:

a. grounds that the person is unsuitable to work with children;

b. grounds relating to the person's misconduct;

c. grounds relating to the person's health; and

d. in the case of a person taking part in the management of an independent school, grounds relating to the person's professional incompetence.

Thus, the Secretary of State must be satisfied that at least one of the specified grounds exists before he can exercise the statutory discretion provided for in section 142(1).

34. Section 144(1)(a) of the 2002 Act provides that a person in respect of whom a direction has been given under section 142 may appeal to the Tribunal against the decision to give the direction.

35. Regulation 12(1) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 also provides that an appeal to the Tribunal may be brought by a person in respect of whom a direction has been given under section 142 of the 2002 Act against such a direction. By regulation 12(2), no appeal may be brought on the ground of information or evidence referred to in regulation 9(2) unless that information or evidence has first been brought to the attention of the Secretary of State under regulation 9.

36. Regulation 9(1) of the 2003 Regulations provides that a direction given under section 142 of the 2002 Act ("the earlier direction") may be revoked or varied by a subsequent direction on either or both of the grounds referred to in regulation 9(2). The grounds referred to in regulation 9(2) are that the Secretary of State is in possession of information relevant to the decision to give the earlier direction which he or she did not have at the time the decision was made and that the Secretary of State is in possession of evidence of a material change of circumstances of the person concerned occurring since the earlier direction was given.

37. Regulation 13(1) of the 2003 Regulations 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.

38. Regulation 13(2) provides that the Tribunal shall not, in exercising its powers under regulation 13, consider any information relevant to the decision to give a direction which the Secretary of State did not have at the time the decision was made, or evidence of a material change of circumstances of the person concerned, occurring since the decision to give a direction was made.

4. There appears to be common ground between Mr Crosfill and Ms Olley that the effect of this scheme is that any appeal to the Tribunal is "frozen in time" in other words the tribunal has to consider appropriateness at the time it was considered by the Secretary of State (as contrasted with the suitability test under the Protection of Children Act appeals which is considered at the date the Tribunal sits). It appears also to be common ground that any appeal has to consider the same "information" as that considered by the secretary of State, although Mr Crosfill and Ms Olley disagree as to what the word "information" means.
5. The main area of disagreement between the Appellant and Respondent is the nature of the appeal. Is it a review of the Secretary of State's decision, akin to a judicial review hearing or is it a full rehearing fixed in time, hearing the same information, but where the Tribunal may substitute its own view for that of the Secretary of State?
6. In O'Hara the Tribunal said as follows;

39. Thus the Tribunal is, in this instance, confined to conducting a review of the decision made by the Secretary of State. The Tribunal is not empowered to re-hear the case or to determine the primary facts. It is required, in effect, to decide whether the Secretary of State had sufficient evidence upon which to base a determination that the specified ground relied upon existed and, further, to decide whether the direction was an appropriate or proportionate response in all of the circumstances known to the Secretary of State.

7. Mr Crosfill submits that although this has apparently been the practice of some Tribunals to date, (see below) those that have applied this practice have fallen into error. Moreover even though this is the approach cited by the Tribunal, a proper consideration of what the Tribunal actually did, suggests in reality they were holding a rehearing. In O'Hara for example the Appellant gave oral evidence and the Tribunal made findings. It made primary findings regarding the Appellant's identity and about his teaching qualifications and although these accorded with the Secretary of State's findings, none the less they did what they said they could not do, namely make primary findings. Mr Crosfill argues that the Tribunal did not conduct a review, they conducted a rehearing.
8. Ms Olley submits that the existence of the Regulation 9 procedure shows that the appeal process is by way of review, as the Secretary of State is duty bound and indeed does, consider new information received after listing under this procedure and indeed, in some cases, the review process has been successful. She has considerable experience of this jurisdiction and accepts that it is not unusual for the Tribunal to consider oral evidence, but nonetheless argues that this oral evidence is used simply to test the appropriateness of the original decision in the context of the reasonableness of the Secretary of State's decision.
9. Mr Crossfil argues that the Regulation 9 argument misses the point. The primary right of Appeal is under the Act and Regulations. Whilst there are restrictions imposed by Regulation 13 nothing within the legislative framework restricts the Tribunal in the way set out in O'Hara.
10. Regulation 12 is headed Appeals. In contrast Regulation 10 which deals with an alternate review procedure by the Tribunal is headed "Review by a Tribunal". Appeals under regulation 12 are dealt with by Schedule 4 Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002. Schedule 4 sets out certain procedural issues but importantly does not exclude the main body of the Regulations, under which the Tribunal has, amongst other things, power to regulate its own procedures, including the commissioning and calling of its own experts.
11. It is constructive to consider other previous decisions to see if the O'Hara approach has had universal application.
12. In the case of Natalie Kaye-Engel v Secretary of State [2003] 241.PC the Tribunal allowed an appeal on the basis that they found that there had been no misconduct under S142(4). The Tribunal did not undertake an analysis of its jurisdiction under the legislation but rather stated that the onus was upon the Secretary of State to prove unsuitability. He had failed to prove this and the appeal therefore succeeded. It follows that the tribunal considered that they were holding a rehearing as they made a primary finding which vitiated the Secretary of State's decision.
13. In the case of Lawrence v Secretary of State [2003] 215.PC whilst dismissing an appeal the Tribunal said as follows;

Whilst the Tribunal is hearing evidence in this case afresh, rather than reviewing the Secretary of State's decision, we do have a number of concerns about the way in which this case was dealt with in the period before the papers were sent to the Secretary of State.

They plainly considered that they were hearing matters afresh. Neither of these cases contained detailed discussions regarding the legal framework.

14. There is nothing within the Legislative framework that, in my view, restricts the tribunal in the way envisaged by O'Hara and argued by the Secretary of State. Regulations 12 and 13 set the ground rules for the Appeal, they do not change the nature of an Appeal read in its common context, and as applied by the Tribunal in all its other jurisdictions, to that of a review.
15. Thus in my view a Tribunal is entitled to hear evidence in respect of the information that was available to the Secretary of State and determine whether at the time the matter was considered by the Secretary of State, the Appellant falls into one of the grounds specified under S142(4) and, if so, whether a direction should be made under S142(1). The Tribunal is entitled to make its own decision on the former and exercise its own discretion on the latter. It is entitled to substitute its own views for that of the Secretary of State. It is after all an expert Tribunal and as has been emphasised in many reported decisions, cases that look strong on paper can alter considerably once oral evidence has been heard.
16. There is one further point raised by Mr Crosfill that needs consideration and that is the word "Information" within Regulation 13(2)(a). He submits that, for example, the Secretary of State may be given "information" that the Appellant was ill and this impacted upon his behaviour as part of the representations made by him. On an appeal, he says, that he is entitled to call evidence relating to this, for example a report by a Consultant, even though this was not before the Secretary of State, because this is not new information but rather evidence that bites upon the information that the Secretary of State already had. He cites in support of this the use of the word "information" in Regulation 13(2)(a) but "evidence" in Regulation 13(2)(b).
17. Whilst superficially there is considerable strength in such a submission, I do not feel it appropriate to make a decision regarding this in a void. One is not helped by trying to investigate the etymology of the two words. The Compact OED definition of "evidence" is unhelpfully as follows;

"Information used to establish facts in a legal investigation or admissible as testimony in a law court"

It appears to me that a Tribunal hearing a case under S144 should, at a Directions Hearing, carefully analyse the evidence that they are being asked to consider at the final hearing. If they are asked to consider evidence that was not before the Secretary of State, the tribunal should decide in every instance, whether in fact this evidence amounts to new information, in which case it has to be either disallowed or the tribunal adjourned to allow the secretary of State to consider the new information under Regulation 9, as appropriate. Clearly if the Tribunal considers the "evidence" to be admissible under regulation 13(2)(a) they are duty bound to hear and consider it.

18. Having set out the course that this Tribunal will take in considering this appeal I will now adjourn the case to a date within the next 4 weeks to timetable to hearing.

Ian Robertson

Nominated Chairman

11^th April 2008