First-tier Tribunal (Health Education and Social Care Chamber)

Newton v Secretary of State [2009] UKFTT 19 (HESC) (04 March 2009)
Schedule 5 cases: Protection of Vulnerable Adults list - Inclusion on PoVA list

Case No. [2008] 1363 PVA

[2008] 1364 PC

BEFORE THE FIRST TIER TRIBUNAL

CARE STANDARDS

B E T W E E N:- LUKE NEWTON Appellant and SECRETARY OF STATE FOR HEALTH Respondent
DECISION

BEFORE:

Miss Gillian Irving QC

Mr John Williams

Mr Jim Lim

sitting at Swansea Social Security Tribunal Offices on Monday January 12^th 2009.

Representation

1. The Appellant appeared in person and was represented by his father, Mr Steaphen Michael Newton.

The Respondent was represented by Alexander Ruck Keene of Counsel instructed by the Treasury Solicitor,

2. The Appeal

By a letter dated the 24^th November 2007, the Appellant was informed that he had been provisionally included on both the Protection of Vulnerable Adults (POVA) and Protection of Children Act (POCA) lists. This decision, which was absent of representation from the Appellant, was confirmed in writing on the 26^th February 2008. As a consequence the Appellant's name was also included on the Education Act List, commonly known as List 99.

The catalyst to the Appellant's inclusion on the lists was his summary conviction on the 1^st day of November 2007 of an offence contrary to Section 44 of the Mental Capacity Act 2005, namely that whilst having the care of a person who lacked capacity, he ill-treated or wilfully neglected that person. On summary conviction, he was liable to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both. His sentence, following a guilty plea, was a 12 month Community Order with an unpaid work requirement of 80 hours. He was also ordered to pay a contribution to prosecution and Court costs. We were told that he had received legal advice in respect of his plea of guilty at the Magistrates Court.

3. Preliminary Direction

Before going on to consider and set out the law in relation to this matter the Tribunal in accordance with Rule 14(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, hereinafter referred to as the 2008 Rules, directs that there shall be nothing reported or published which shall lead to the identification of the relevant service users or the families and their identities shall be suitably anonymised for the purpose of this decision.

4. The Relevant Legal Provisions

A. Section 86 of the Care Standards Act 2000 deals with "Appeals against Inclusion in the List".

B. By Section 86(1)

An individual who is included (otherwise than provisionally) in the list kept by the Secretary of State under Section 81 may appeal to the Tribunal against:

(a) the decision to include him in the list; or

(b) with the leave of the Tribunal, any decision of the Secretary of State not to remove him from the list under Section 81(3).

C. By Section 86(3)

If on an appeal or determination 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 or determine the issue in the individual's favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list.

D. By Section 86(4)

Where an individual has been convicted of an offence involving misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal or determination under this section.

E. In this case given the conviction of the Appellant for an offence of misconduct in the course of his duties which harmed or placed at risk of harm a vulnerable adult, the only issue for the Tribunal to consider was whether the Appellant was unsuitable to work with vulnerable adults and children. Section 86(4) is clear that the Tribunal cannot question or challenge the facts which led to the Appellant's conviction for misconduct.

F. In determining the issue of unsuitability, the Tribunal has to apply the Civil Standard of proof; ie the balance of probabilities, or put another way, is it more likely than not that the Appellant is unsuitable to work with vulnerable adults.

G. Suitability or unsuitability is not defined in Section 121 of the Care Standards Act 2000. However, a helpful exposition is derived from the case of Angella Mairs v The Secretary of State of Education and Skills [2004] 269 PC. At paragraph 111 it was said:

"Unsuitability must be judged by the Tribunal at the date of the hearing. The judgment will involve consideration of the character, disposition, capacity and ability of the individual concerned, including his or her ability to act properly in potentially difficult or frustrating circumstances. The judgment will inevitably be, at least in part, by way of deduction from past performance, including (but not limited to) the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed a child or placed a child at risk of harm. The Tribunal may have regard to:

(a) the number of the incidents constituting the misconduct established for the purposes of Section 4(3)(a) of the Act;

(b) the gravity of that misconduct;

(c) the time that has elapsed since that misconduct;

(d) the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential to harm a child;

(e) the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct; and

(f) extenuating circumstances surrounding the misconduct.

This should not be regarded as an exclusive list. The Tribunal may also have regard to other admitted, undisputed or proved past conduct of the applicant, whether good or bad".

These were the matters borne in mind by the panel in their consideration of this issue.

5. Evidence

By reason of the conviction, the Respondent called no oral evidence and relied on the documents within the bundle. In addition to reading the documents therein we heard oral evidence from the Appellant; his father – who was also his employer at the relevant time of the offence of misconduct; his father's partner, his mother and a relative of a service user.

6. The Decision

The specialist members, the Chairman dissenting, took the view that the Appellant was suitable to work with vulnerable adults and children. Given the majority view the Appeal was allowed.

7. The reasons in support of the majority decision can be found at paragraph 9 herein. The Chair's dissenting judgment can be found at paragraph 10.
8. Backcloth of Undisputed Facts

The Appellant is now 23 years of age, having been born on the 18^th September 1984. At the time of the offence on 1.4.2007 he was 22 years of age. He was brought up by his mother, his parents having separated when he was about 2 years old. His brother, to whom he is close, has been ill with leukaemia but is fortunately now in remission.

The offence was committed in respect of service user PP. He resided at a home, namely Ty Hapus in Lower Cwmtwrch run and owned by the Appellant's father, Steaphen Michael Newton. The home was a residential care home registered for 3 people under 65 years with Learning Disability. A document produced and entitled "Clinical risk Management Plan" for PP (albeit dated after the event leading to the conviction) showed that he was 42 years of age at the time of the incident. It records that he could become very anxious and agitated whilst travelling in a vehicle, such that he had to be secured in his seat with a harness. He was a man who was unable to articulate for himself and unable, according to Mr Steaphen Newton, to attend to any of his own personal care. His mobility was impaired and he required a wheelchair. Sadly, very shortly after this event but unrelated to it, PP died in August 2007, after leaving Ty Hapus on May 25^th that year. He had been resident there since 2000 and the Appellant had met him in 2006.

There is no memorandum of conviction or transcript of the Prosecution Opening or sentencing remarks of the Justices before us. We were dependent on the events as relayed by the Appellant's father, which given the proximity of his relationship with the Appellant was unfortunate.

In his letter dated 21.10.07 to POVA, ie some 6 months after the event, Mr Steaphen Newton relayed the circumstances of the offence, namely that on the 1.4.07 the Appellant and a Tracy Jones had taken PP and another service user out in a minibus. They and the other service user went for a coffee leaving PP in the minibus for a period of approximately 1 hour. They were unable to see him and it follows he was unable to see them. PP became very distressed such that a member of the public called the police who broke into the minibus to try and help him. The Police witnessed and reported PP's distress, they waited until the Appellant and his colleague returned to the minibus and they were subsequently arrested and charged as previously set out.

The Clinical Risk Management Plan clearly established the level of difficulty and distress presented by the patient in relation to his travel in a vehicle and, Steaphen Newton informed POVA that the actions of his staff clearly contravened the care plan for PP.

At the time of the offence Tracey Jones had been in employment at the home for 4 years and the Appellant for 7 months.

Tracey Jones was also prosecuted and received the same penalty. Although her name was originally entered on the POVA and POCA lists and upon list 99, her subsequent appeal was not opposed by the Secretary of State and her name was removed therefrom. The reasons surrounding that decision were known by the Tribunal.

Prior to working at his father's residential Care Home the Appellant had passed the International Baccalaureate and achieved a place at Cardiff University to study physics. He dropped out after his first year after failing is exams. He chose not to return to re-sit them. He described being unable to concentrate, unable to sleep and experiencing a feeling of depression. In September 2002 he was cautioned for possession of cannabis resin. In May 2003 he was cautioned again for possession of Cannabis resin and possessing an offensive weapon, namely a knife, in a public place. In respect of the latter we were told that he had been camping with friends and the police stopped the car in which they were travelling. They found a pipe with traces of cannabis resin in it and a knife he has used for camping purposes.

Since his conviction under the MCA 2005 the Appellant has been working for his mother as a labourer in her property development business. He lives with his partner at their own rented address. It is his hope that he can return to the social care field and in time take over the management of Ty Hapus from his father.

The Appellant lodged his notice of appeal on 16.8.2008 almost 6 months after the original notification of his entry onto the lists.

9. The Findings made by the Specialist Members and the Reasons for their Decision to Allow the Appeal

A. The specialist members took the view that whilst the Appellant was guilty by way of a conviction in November 2007 for placing a vulnerable adult at risk of harm and consequently, of misconduct, the Appellant should not be deemed as unsuitable to work with vulnerable adults and children.

B The specialist member took the view that "unsuitability" in this case was not apparent or "clear cut" because the circumstances, which resulted in the conviction, were highly questionable and there were compelling factors involved, some of which concerned the legal process.

C. On the evidence heard and seen, the specialist members were compelled to the view that the Appellant presented a low risk to vulnerable adults and children. In the same way that Tracey Jones, Senior worker involved on the day was regarded by the Probation Service as being a "low risk", it is felt that in this instance, the primary issue was that the neglect was jointly perpetuated by both workers. If the senior staff member was considered a low risk, then it would be grossly unfair to single out a junior staff member for admonishment. If any, the junior member, having only been a month outside of his employment probationary period should have been better supervised and guided by the senior worker concerned. The specialist members accepted the point made by the Secretary of State that the Tribunal should not take into consideration the outcome of the appeal of Tracey Jones. As will be seen later, they have not entirely relied on this; rather instead that the Appellant had satisfied convincingly, that he is suitable.

D. The Appellant's childhood history and up bringing strongly pointed to one characterized by close and warm relationships, with his father and mother despite their early marital separation. Also there were close links with his maternal grandparents and the Appellant had contacts with care business (vulnerable adults) when he was in his adolescent years.

E. The Appellant commenced an undergraduate course in Physics at Cardiff University but did not complete his first year. According to the Appellant, it was traumatic period for him; coping with a failing relationship with a girlfriend, preoccupied with his brother's discovery of leukaemia and losing the motivation with the demanding degree course. The revelation of the effects of his brother's potentially terminal illness came about through cross-examination as the Appellant had not (nor did anyone in his family) record this significant fact in his statement. It would have been a burden on him at the time although markedly to a lesser degree at present, given that his brother is now, we are informed, in remission of the illness.

F. It is regretted that the Appellant was convicted under the Mental Capacity Act although this is not to detract from its aim of being necessary deterrent to others regarding protection to vulnerable sections of our society. However, it is entirely possible that another Police Force may have used a formal caution instead of through the courts for such an instance and with the particular service user concerned (pp). Of course, this is speculative but on the balance of probabilities, it could happen and, if so, the matter facing us would be seen in an entirely different light.

G. An "independent" witness namely, Lynne Martin gave a glowing and resounding reference of his qualities and strengths. She is connected to a service user at Ty Hapus, where the Appellant worked. Speaking as a professional in the health and social care field for over 25 years (Lynne is a community psychiatric nurse) she said that she had observed the Appellant's work standard and was unequivocal in her praise of his natural caring tendencies. She said that the Appellant had natural warmth towards the residents and she would still be happy and confident to have him caring for her sister-in-law who she said adored the Appellant.

H. She added that both Tracey and Luke undertook those trips with the residents regularly but on this occasion, she was told that another service user on the coach demanded his particular ice cream and in complying with his request, they failed user PP. It appeared to her that the incident was more an error of judgement rather than deliberate neglect.

I. Another witness, Julie Williams, who is Mr Steaphen Newton's partner, said that the Appellant is a gentle person by nature. She currently works as a support worker for people with learning difficulties, she and Mr Steaphen Newton, have been foster carers for over 4 and half years. They currently foster a 16, 12 and 4 year old respectively and their home has been used for mother and baby placements as well as respite care too. The Appellant had been an integral part of the family and seen as a brother to their foster children.

J. In her evidence, the Appellant's mother, Mrs Pauline Bowden-Jones admitted that much of her time had been preoccupied with the Appellant's brother, Tim who had been diagnosed with leukaemia and that they (with Steve Newton) "May have left Luke alone, to fend for himself emotionally" (her words). She felt they had paid disproportionate attention of the time to Tim, although this was understandable. She added that the Appellant's concentration was badly affected by his brother's illness, as he was constantly worried about him. Mrs Pauline Bowden-Jones felt that the Appellant may also have been depressed at the time.

K. Mrs Bowden-Jones said that Steaphen Newton and herself separated about 21 years ago and she has since remarried. The Appellant has been working for her since the conviction under the supervision of her son-in-law, in her property development company, refurbishing houses and flats. According to Mrs Bowden-Jones, he has shown great improvement in his attitude to work, such as being conscientious and with good-time keeping. He has also been babysitting regularly, his step siblings (2 x 8 year olds) and helped his grandmother, who was ill (in her 80's).

L. Mrs Bowden-Jones' view about the cannabis caution during the camping trip was an unfortunate incident which she did not regard as serious. This view was also shared by Julie Williams.

M. Mrs Bowden-Jones said she was particularly pleased with her son's progress at her company and admitted that he had tended to think that he could float through life and his improvements of late has given her much hope. She was tearful at times describing the shock she felt, especially following the dismissal from Ty Hapus, the conviction and the implications of the inclusion of his name on the lists.

N. Mr Steaphen Newton acted as advocate for his son and he was duly assisted by the Chairman at stages during the hearing. Mr Newton had spent most of his working life in the care field looking after people with learning difficulties, starting as a volunteer, much like his son (who started as a volunteer at Ty Hapus) and he worked as a Care Manager for a specialist provider until running and owning Ty Hapus, for the last 10 years.

O. At the time of the offence, the Appellant had completed the basic training in food handling, lifting and Fist Aid as well as a POVA programme. PP's care plan appeared ambiguous in 2 ways. Whilst it indicated that a harness is necessary during transportation, the plan also stressed the need to keep PP in eyesight at all times. Therefore, much of the strategy for the management of PP's challenging behaviour can be put down to staff experience and the prevailing external conditions at the time. Ironically, it is unfortunate that as attention became drawn to PP being left alone, strange adults coming towards PP would evoke a far worse reaction from PP and raise the bar, so to speak, in terms of "anxiety and states of agitation and distress". A false picture can therefore be presented to the immediate outsiders as to someone in great distress, although this observation is not to excuse at all, the undeniable misconduct of leaving a vulnerable person, a person suffering from learning difficulties, unattended and alone in a stationary vehicle.

P. Mr Newton gave a very positive reference regarding the Appellant, speaking of his positive characteristics and stated that the misconduct appeared very much out of character; "that he was not out to wilfully hurt someone". Mr. Newton felt that the Appellant did not know how to deal with stress well. He continued, stating that the implications of inclusion on the list is a genuine wake-up call for him and this had also shocked his "laid back" style. Mr Newton is sure that the Appellant has learned much from all this and he was confident that he would never do anything like this again.

Q. The Appellant gave his own account of the events leading to his conviction and in his evidence, expressed his regret. He said he fully accepts his own part in the neglect and when pressed a few times he refused to blame Tracey, the senior worker with him even though he tended to always take instructions from her in other duties.

R. When asked as to why he had not attended a meeting with the Probation Service prior to the Court hearing, the Appellant said that the letter offering him the appointment arrived a day after the actual appointment date. He said that he telephoned the Probation office and was told that it was too late for another appointment as the court hearing was near. He was not given any further information.

S. He said that he was told to plead guilty by 2 solicitors at the time otherwise he may received a custodial sentence. He tried to elaborate further, intimating that he received poor legal advice but was told that it had no bearing in the matter being considered.

T. In explaining the incident with PP in the mini-bus he repeated that it was an oversight on his part, failing to keep time and confessed he was unable to explain the time away (1 hour). He repeated his regret and that he let people down but he would never hurt PP or put him at risk of harm.

U. He added that he wanted to be more responsible for what he does and not blame others. He added that up until much of 2007, he accepted that he was irresponsible and also "mixed up" a lot; he was depressed but had not sought help because he thought it was a lost cause. He admitted too, that he had "coasted through life" for too long now, he now wanted to be a more "active member of society".

V. He said that he realised the seriousness of the situation he is in and the limited options for his life should his name appear on the various lists. He is therefore appealing to be given a chance.

W. He appeared genuine and sincere. The specialist members were persuaded and impressed by the support given to him by his family and Lynne Martin at the hearing.

X. To regard to Appellant as unsuitable, it would be necessary to form a view that there was a pattern to his past actions of misconduct, either that he lied about significant events, or that he showed little or no insight into his misdemeanours, or that he blamed others. From the evidence presented and the evidence heard, this was not found.

Y. Specialist members were of the opinion that had the Appellant been interviewed by the Probation Service they would have also concluded that the Appellant presented a "low risk". It was felt that he missed that opportunity due to his appointment letter arriving late and the Probation Office refusing to undertake the interview for a pre-sentence report. Instead, the impression given was that he failed to keep the appointment.

Z. Whilst it is the case that misconduct had been proven, specialist members consider that it does follow automatically that "suitability" is severely compromised. If this is the case, such rigidity would run directly against any doctrine that preaches the efficacy of reform, through remorse, re-education or rehabilitation. In this case, members saw enough evidence to suggest that this young man appears to strongly fulfil the potential for reform, supported sufficiently by his close family, as well as given the appropriate pledges against a repeat of his misdemeanours within the social care context.

The Appellant without doubt, had lost personal direction for the best part of at least 3-4 years, and by his own admission, was irresponsible whilst expecting to coast through life. However, he appeared convincing to the specialist members that he is determined to re-enter the social care field and eventually take over his father's home.

For him to be considered unsuitable to work with vulnerable adults also implies, for our purposes, that adult service users and children must be protected from him. From the evidence heard, we do not accept that this criteria is met.

Apart from the oral evidence from Luke and his witnesses, the specialist members took the view that upon balancing the gravity of the misconduct against the actual harm suffered, it was not justifiable to lose a potential asset from the workforce". To this end and for the reasons above, we submit that his appeal is allowed.

10. The Dissenting Judgement of the Chairman

On the evidence heard the Chair was unequivocally of the view that the Appellant was unsuitable to work with vulnerable adults and/or children for the following reasons:

A. The Appellant presented as an immature, irresponsible young man. I found him an unimpressive witness and doubted his expression of remorse and insight into the impact of his conduct on PP. When asked what, with the benefit of hindsight he would have done differently, he said "plead not guilty". The inappropriateness of leaving a vulnerable adult unable to communicate and mobilise in a van for over an hour was not rocket science; it did not require hours of exhaustive training, it involved the use of practical common sense.

The events of 1/4/07 were a further example of a pattern of irresponsible conduct on the part of this young man as evidenced by his withdrawal from University, the cautions he received and his mother's own description of his lifestyle.

B. It was my view that there was an attempt to deliberately mislead this Tribunal by the Appellant and his father Mr Steaphen Newton.

The latter sought to assert on his son's behalf that he could not now be left alone with the foster children that he and his partner Julie Williams fostered.

It was with great interest therefore that I noted that Mr Newton Senior has failed to communicate the existence of the conviction or the Appellant's list inclusion to their Fostering Agency. He described it as an "oversight". I do not accept that for one minute. There had been no communication at all with the Agency who had therefore provided no indication that the Appellant could not visit his father's home or see the children. Similarly, in the statement dated 17.8.08 filed by his mother, it was asserted that the Appellant could not now accompany his nieces and nephews to parks and on other outings. When asked by myself from where she had elicited that information she said it came from Mr Steaphen Newton.

The Appellant's father, who has been involved in matters of social care for many years, I find knew full well that the inclusion of his son's name on the list related to his employment and his employment only. Whether the inclusion of such assertions in statements prepared by him was designed to elicit sympathy I know not, but on the contrary, his lack of candour lent the Appellant and himself no assistance and indeed heightened my concern about whether future misconduct would indeed be reported.

In reaching this view I noted that it had taken Mr Steaphen Newton almost 6 months to notify POVA of the incident on 1/4/07. The tone of his letter dated 21/10/07 to POVA gives the impression that he sought to minimise the impact on PP and the level of distress observed by both a member of the public and the police. I was not at all persuaded by the father's evidence and did not consider him a reliable witness.

C. Indeed the only 'independent' witness from which the Panel heard was Lynne Martin. She provided a letter dated 14/8/08 which can best be described as a character reference for the Appellant. Her knowledge of the circumstances of 1/4/07 emanated from what she had been told by others. She was unaware of his previous cautions.

She did indeed praise the Appellant for the kindness he had shown her sister-in-law. She described him as a naturally warm and pleasant young man. I of course took into account her views but they have to be set against a backcloth of material to which she was not privy.

11. Those who are most vulnerable in society require and are entitled to the highest standards of care that society could and should seek to provide. If there is an identifiable risk that a person involved in their care may cause them to suffer harm then that person should be excluded from working with them.

In considering the matters set out in Mairs aforesaid, I am not persuaded that the Appellant truly recognises and accepts his misconduct and its effect on PP, nor am I persuaded that he would not behave in a similar irresponsible manner in the future.

For those reasons I would have dismissed the Appeal.

GILLIAN IRVING QC

JIM LIM

JOHN WILLIAMS

27 February 2009