England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		14 May 2008

1. MR JUSTICE OUSELEY: As long ago as 29 September 2006, the Care Standards Tribunal allowed the appeal of KM (as she is to be known) against her inclusion by the Secretary of State on a list of individuals who were considered unsuitable to work with vulnerable adults. In very brief terms, the basis for that inclusion was her dishonesty in the handling of the holiday money of residents at the care home where she was the deputy manager until September 2004, and her failure to reveal all her convictions when she sought employment there.
2. The Tribunal allowed her appeal, notwithstanding the misconduct which it found proved, on the grounds that she remained, on balance, suitable to work with vulnerable adults. The Secretary of State appeals on a point of law pursuant to provisions which are to be found by an indirect route in section 9 of the Protection of Children Act 1999.
3. Mr Coppel, on behalf of the Secretary of State, contends that the Tribunal failed to understand the case that he was putting forward to it, failed to make findings on crucial factual disputes which were relevant to the issues it had to consider, and took account of irrelevant employment considerations when judging her overall suitability.
4. KM is not present or represented. I am satisfied from the material which Mr Coppel has referred to that extensive endeavours have been made to serve her at any known address with all the material for this hearing, and I see no reason not to proceed today with it.
5. The relevant statutory provisions in the Care Standards Act 2000 are these. Section 86(1) provides for the right of appeal to the Tribunal by an individual included in the list of those unsuitable to work with vulnerable adults. The list is not a public document, but is something which, for example, a prospective employer can consult. If the person is on the list, then he or she cannot be employed in a care position. As is evident, its purpose is to reduce the risk of harm to vulnerable adults by preventing those who have harmed them and are unsuitable to work with them from working with them. After ten years on the list, the individual may apply to the Care Standards Tribunal to be removed from the list. However, the provisions for appealing against the inclusion in the list are in section 86(3). They provide as follows:

"If on an appeal ... under this section the Tribunal is not satisfied of either of the following, namely-

(a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult; and

(b) that the individual is unsuitable to work with vulnerable adults,

the Tribunal shall allow the appeal ... direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list."

"Harm" for these purposes is defined in section 121(2) so that, in relation to an adult who is mentally impaired, it means "ill-treatment or the impairment of health or development" of that adult. It is accepted that it was for the Secretary of State, although responding to the appeal, to satisfy the Tribunal on the balance of probabilities that each of the two limbs in section 86(3) were made out.

6. The Secretary of State relied upon three matters as constituting misconduct: the first was dishonesty in the form of the theft of money from residents, or "service users", at the care home; the second was a failure to disclose previous driving convictions in her application for employment, which was said to create a risk of physical harm to the residents; and the third was failing to disclose a caution in June 2000 for assault occasioning actual bodily harm, which had caused, it was said, a risk of physical harm to service users. By the time the case came before the Tribunal, the Secretary of State's case in relation to misconduct had been refined, and can be seen in summary form from the note of opening which Mr Coppel placed before the Tribunal. The misconduct which harmed or placed at risk of harm a vulnerable adult was simply the dishonesty -- the theft of the residents' money. The failure to disclose driving convictions and the caution for assault occasioning actual bodily harm, together with the dishonesty, were said to support KM's unsuitability to work with vulnerable adults. I shall come later to what changes there may have been in the way the Secretary of State put his case in relation to the latter two matters.
7. Taking first the dishonesty, it arose in this way: KM decided to organise a holiday for the residents, and three residents could afford to pay for the hotel and travel costs and the costs of carers. There were two invoices from the hotel, one for £377 and a later one of 4 September 2004 for £533. The total paid was £517. It appears that the amount collected exceeded the amount which needed to be paid by £185. The money had been kept in a tin box in KM's room.
8. After she left employment at this care home on 17 September 2004, a financial audit was carried out, as was done routinely when an employee left. The discrepancy of £185 was found. KM said that she had taken the tin box with her which contained £90, which she had paid back to the home to be paid to the residents. There was therefore a shortfall of £95. The police were called, investigated and KM accepted a caution for an offence of false accounting in relation to that £95. This was on 6 January 2005. It led to her being reported to the Secretary of State and eventually to her provisional and then final inclusion on the list.
9. The position in relation to the other offences was this: when she went for employment at this organisation of care homes, she signed a form saying that she had a previous conviction in 1999 for a driving offence. In fact, she had three groups of convictions in relation to driving offences. In 1997 she was convicted of failing to provide a specimen of breath or other specimen for analysis, and driving while uninsured and using a vehicle with no test certificate, which led to her being disqualified from driving for three years. In 1999, for driving whilst disqualified and using a vehicle while uninsured, she was ordered to do 140 hours community service. In 2001, she was convicted of driving a motor vehicle with excess alcohol, and again of using a vehicle while uninsured, which led to her receiving a community rehabilitation order for 12 months and disqualification from driving for four years. She was also cautioned in June 2000 for an assault occasioning actual bodily harm, a caution which would qualify as a conviction.
10. The Tribunal concluded that the evidence of misconduct was in a fairly unsatisfactory state. It heard evidence from the appellant, oral evidence from Dr Aslam, who was the proprietor of the care homes business, from its development manager, and there was some other evidence as well. The Tribunal was faced with a conflict of evidence on a number of those matters. So far as the money was concerned, KM essentially said that the £95 underlying the false accounting caution was money that had been stolen from her, and that she had reported this to Dr Aslam, who told her not to record this as an inspection was due. He categorically denied that. She said that the invoices were different because there was a change in the requirements, as either the numbers going changed or as her partner, who was going to drive, was unable to come. The Tribunal said that there were no satisfactory explanations for the variations. The question of why she had £90 of residents' money in her tin box when she left appears not to have featured in the Tribunal's considerations.
11. So far as the false accounting is concerned, the Tribunal commented that the basis upon which that particular offence was put to her for her assent was unclear, and noted that what KM had to say about it, which is that she was wrong not to have recorded the theft from her of £95, could not have amounted to an offence of false accounting because there would have been no dishonesty in that. It noted: "This is a most unsatisfactory aspect of the case". But it said that it could not go behind the caution. KM had been convicted therefore of dishonesty involving the handling or recording of clients' money. They took the view that that obviously amounted to misconduct which put the residents at risk of harm. So on that basis, the Tribunal concluded that the first limb of section 86(3) had been satisfied.
12. So far as the non-disclosure of convictions was concerned, KM told the Tribunal that she had disclosed these convictions orally to the person interviewing her, Dr Aslam, and she had been told simply to refer to a conviction for a driving offence in 1999. Again, Dr Aslam denied that he had said any such thing. It is clear from the Tribunal's findings that whatever the rights or wrongs of that however, the care home got to know of the true position at some point before March 2004, realised that had she not disclosed the convictions on what Dr Aslam said, but nonetheless at that stage continued with her employment.
13. The Tribunal pointed out that questions about when KM told Dr Aslam about the disclosure of her previous convictions and the way she described it had not been put to Dr Aslam. This is understandable in one sense because KM was unrepresented and gave her evidence after Dr Aslam had given his. But it pointed out that Dr Aslam, though present throughout the hearing, was not recalled by the Secretary of State to deal with those assertions by KM.
14. The Tribunal regarded the Secretary of State's case in relation to those convictions as not being that the convictions of themselves were for offences that showed unsuitability or misconduct, but rather that there was deceit in their non-disclosure, on Dr Aslam's evidence, which was part of a pattern of dishonesty and a want of integrity reinforced by the dishonest behaviour culminating in, but not limited to, the caution. The Tribunal itself said in relation to that:

"We have to say that as a Tribunal we are very concerned about the nature of the convictions themselves. They involve alcohol abuse and when questioned by the Tribunal KM accepted that at the time she was an 'alcoholic' (her words). She has, she says, dealt with the problem by stopping drinking but has not had any professional support. Her offence of driving whilst disqualified in 1999 was on her evidence quite calculated. These issues that may go to suitability were not pursued, as we have said, by the Secretary of State, and although they raise serious concerns in our mind on balance we have decided that they are not matters we should ourselves pursue further."

15. The Secretary of State raises an argument in relation to that sentence. The decision continued by examining the question of suitability, the second limb of section 86(3):

"The question of suitability is always a balance. On the one side are the factors outlined above which are serious. On the other we have heard evidence of KM's exemplary record and her dedication to her clients in circumstances where a lesser person would have given up. The holiday was her idea and we are satisfied that her motivation in organising it was to make the life of her clients better. In giving evidence her face lit up and she came alive when discussing individual clients. We have little doubt that she was exploited in her employment. The working practices described by her, confirmed by Dr Aslam in evidence and corroborated in the paperwork are quite appalling. The lack of privacy afforded her and the unpaid expectations placed upon her are novel in our experience of dealing with such cases. This is not to excuse her behaviour, but rather to put her dedication to clients into perspective."

16. The Tribunal then said that it had decided on balance, and that it was indeed on balance given the caution for dishonesty, that KM should be allowed to work with vulnerable adults in the future if she chose to do so, although she had told them that she had no present intention of doing so.
17. I now turn to the Secretary of State's contentions. At the outset of Mr Coppel's submissions was a contention that the Tribunal had misunderstood the way in which the Secretary of State was putting her case in relation to the offences which had not been disclosed on her (that is the Secretary of State's) case. True it is, accepted Mr Coppel, that the Tribunal had reflected in its references to the Secretary of State's case exactly the way in which the written opening statement had put it, which I have already cited. But, by the time the Secretary of State closed his case, the Secretary of State's case had varied, and in particular to say that there was misconduct in the non-disclosure of the offences. The only material available to bear out that contention is a note of those submissions, which is necessarily incomplete. I have read through all that is recorded, and if there was a change in relation to the way the matter was put, the note does not show that it was put in a clear or distinct manner as a change. The emphasis throughout was that the non-disclosure went to honesty and general integrity, and so too did some of the actions involved in the offences, but the emphasis was clearly that it was the non-disclosure of the offences that was relied on as reinforcing a want of honesty and integrity. So I shall approach the other grounds of appeal on the basis that the Tribunal, at least in that respect, understood the Secretary of State's arguments.
18. The next point which Mr Coppel raises relates to the findings which the Tribunal did or rather did not make in relation to various conflicts of evidence between KM and Dr Aslam, the principal one relating to whether KM did in fact reveal her convictions to Dr Aslam at or about the time of interview, as she said, or whether they came to light through the Criminal Records Bureau check, or in some other manner not of her volition, which was what Dr Aslam said. The Tribunal dealt with that matter in this way: they said that they found themselves in serious difficulties on this point:

"In many ways Dr Aslam's evidence was very unsatisfactory. He appears to have adopted a very casual attitude to record keeping with regard to CRB checks and his attitudes and expectations of his staff appear at one level quite Dickensian. We are not in a position to determine whether KM did reveal her full convictions or not at interview or shortly afterwards. We do know that she signed an application form knowing it to be false and regardless of whether or not told to do so she should not have done this. We regard this as misconduct but do not accept given the nature of the convictions and the subsequent acceptance of them by Welcome House that this misconduct caused or placed clients at risk of harm."

19. Mr Coppel points out that it was the Secretary of State's case that there was significant dishonesty involved in the non-disclosure of those convictions. The Tribunal, on his submissions, had not made a finding in relation to an important aspect of the Secretary of State's case in relation to dishonesty. In effect, in judging suitability, it had therefore ignored an important consideration -- important in its own right and important as part of the Secretary of State's case.
20. As subsidiary aspects, he also pointed out that the Tribunal made no findings about whether KM had indeed told Dr Aslam about the £95 and had been told to keep quiet, or whether Dr Aslam's version, that nothing of that sort had happened, was correct. There was again a stark conflict of evidence.
21. Mr Coppel also points out that the Tribunal made no findings about whether there had been dishonesty in the relationship between the changing invoices and the money collected, where the Tribunal commented simply that there had been much speculation about the two invoices and the variations, but no satisfactory explanations about them. It was of course only KM who would have been in a position to give satisfactory explanations in relation to invoices and the relationship to the money collected.
22. I did at one time consider carefully whether or not the comment by the Tribunal that it was not in a position to determine whether KM did reveal her full convictions or not was simply a not very clear way in which the Tribunal expressed a conclusion in reality that it was simply not satisfied that the Secretary of State had made out her case that KM had not revealed her convictions, as KM had contended. Had that been the position, the residual dishonesty in signing a false application form, having revealed the truth orally and filling in the form as required by the person who needed to know of the convictions, could not have been regarded as of any real significance. That would then have explained the absence of any further reference to dishonesty in that way by the Tribunal in the rest of its decision.
23. I have come to the conclusion that that reading of the decision would be unduly benevolent to the Tribunal. First of all, it is not what the Tribunal actually say. They put the issue to one side on the basis that they cannot determine the issue. Second, the fact that they said what they meant to say is also borne out by the fact that, in relation to the contest of some significance between KM and Dr Aslam about the revelation or otherwise of the £95 being stolen, they also made no finding as to who was telling the truth and whether that had any impact, as it so clearly could have done, on the way in which they viewed the chain of events which led up to the caution, and the gravity of the overall behaviour of the appellant. That is in its way reinforced by their failure to grapple with any significance that might have been attached to the varying invoices.
24. For those reasons, I accept that the Tribunal's conclusion in relation to the disclosure of previous convictions has to be taken at face value. It therefore follows that they have failed to make findings in relation to crucial factual matters, which means that they ignored potentially highly material considerations when it came to reaching a conclusion on suitability.
25. I should say something notwithstanding that conclusion on what they say about suitability itself. It was contended by Mr Coppel that matters such as pay levels, working practices, support for training and lack of privacy were employment matters and could not bear upon the question of whether KM was suitable in the light of the caution. He submitted that a person who was otherwise unsuitable could not become suitable because they had been, in the Tribunal's view, exploited. He also suggested that the Tribunal ought to have recognised the limitations on its ability to come to a conclusion on that point because the points had never been put to Dr Aslam either by KM or by the Tribunal, and therefore it ought to recognise that it did not know to what extent its critical comments and conclusions might be affected by what he had had to say.
26. I, however, read the relevant paragraph in quite a different way. I read the paragraph, and the comments made about the working conditions under which KM laboured, as supporting the Tribunal's view that she was a particularly dedicated care worker. That is because the analysis follows comments about her work, her dedication in circumstances where a lesser person would have given up, and the paragraph concludes with a reference that they are not seeking to excuse her, but rather to put her dedication into perspective. To my mind the working conditions and practices which they had in mind are relevant to assessing the dedication and motivation of the worker in question. If they are relevant to the dedication and motivation of the worker, it is plain that they can be relevant to suitability, and the balance which the Tribunal has to strike, between misconduct which could harm and dedication otherwise, can be informed by the circumstances under which she worked. The Tribunal were not seeking to say that there was some excuse for dishonesty in the working conditions which she faced. That would have been an obviously improper process of reasoning.
27. The working practices that it relied on were those which it regarded as confirmed by the evidence which Dr Aslam gave and in the paperwork he provided. I see nothing in Mr Coppel's subsidiary point that the Tribunal ought to have directed itself that it knew insufficient in order to reach the judgment that she had shown dedication in trying circumstances.
28. Mr Coppel also submits that the Tribunal failed to pursue relevant matters in relation to the nature of the convictions. As I have already read out, the Tribunal was concerned about the nature of the convictions because they involved alcohol and the calculated use of a car whilst disqualified. It is said that these issues that may go to suitability were not pursued by the Secretary of State, and although raising serious concerns in the Tribunal's minds, on balance they decided they are not matters that they should themselves pursue further. He contends that they should indeed have pursued them further and reflected their concerns in their analysis of suitability on the side of the scales adverse to KM.
29. As I have already said, the Tribunal did not, on the material I have seen, misunderstand the Secretary of State's stance. I would accept that the nature and function of the Tribunal does not mean that it is confined to the issues as delineated by the Secretary of State or the appellant if it considers that there are other matters which it should pursue, and it gives the parties adequate notice of them and an ability to pursue them. I do not rule out either the prospect that there are certain matters of obvious and of a weighty nature which they should pursue. These would most particularly be points which an unrepresented individual would raise or ought to raise, rather than those which the represented Secretary of State would raise. I take the view that how far those matters are taken is very much a matter for the judgment of the Tribunal. They could have done, as Mr Coppel suggested, provided they made everybody aware that that was what they were doing, but I do not think it sits comfortably with the Secretary of State's stance, represented as she was, to suggest that the Tribunal should have gone further than she was prepared to go in her analysis of the facts in the statutory framework.
30. So the upshot is that the appeal is allowed because the Tribunal has ignored relevant considerations through its failure to make findings on crucial conflicts of fact, which would have fed into their conclusions about suitability. It is not possible to say that the result would have been the same as they viewed it very much as a matter of balance.
31. The question then arises as to what should happen. Although KM has not been here and appears to have no interest in pursuing employment which is relevant for these purposes, the position is that unless the matter is remitted to the Tribunal for the appeal to be re-heard, KM would simply have an outstanding appeal. It would not be right for her to be left in that sort of limbo, with her presence on the list confirmed but her appeal against it not being resolved. I see no alternative to that. The matter will be remitted to the Tribunal for hearing. It would be better if this were considered by a fresh Tribunal.
32. MR COPPEL: My Lord, I am grateful. I am very content with the order that has been suggested, and of course that decision to reflect the terms of your Lordship's judgment.
33. MR JUSTICE OUSELEY: There will be an order that the appeal is allowed and the matter is remitted. I do have a remitting power?
34. MR COPPEL: Yes, my Lord.
35. MR JUSTICE OUSELEY: The matter is remitted for further hearing of the appeal before a fresh Tribunal.
36. MR COPPEL: And, my Lord, we do not seek any order in relation to costs.
37. MR JUSTICE OUSELEY: Thank you very much.