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

Kuteh v The Secretary of State for Children Schools and Families [2009] UKFTT 9 (HESC) (03 March 2009)

Establishments and Agencies - Definition of care home

DECISION

Appeal No [2008] 1345.PC / 1346 PVA

IN THE FIRST-TIER TRIBUNAL (HEALTH, EDUCATION AND SOCIAL CARE)

BETWEEN:

ELVIS KUTEH

Appellant

-and- THE SECRETARY OF STATE FOR CHILDREN SCHOOLS AND FAMILIES

Respondent

On 14 January AND 6 February 2009 at the Care Standards Tribunal, Pocock Street, London

BEFORE

Mr I Robertson (Nominated Tribunal Judge)

Ms Jennifer Cross (Specialist member)

Mr Jim Lim (Specialist member)

REPRESENTATION

Mr Samuel Jonjo appeared as representative of the Appellant

Ms K Olley (Counsel) instructed by the Treasury Solicitor for the Secretary of State

THE APPEAL

1. The Appellant, who is a registered nurse, appeals against the inclusion of his name on the Protection of Children Act list. The Appellant's name was included on the list pursuant to a referral from the nursing agency by whom he was referred for employment on 10 September 2007. On 10 July his provisional listing on both the POCA and POVA lists was confirmed on 10 July 2008
2. He lodged his appeal on 25 July 2007. The appeal was heard over two days on 14 January and 6 February 2009.

BACKGROUND

3. Mr Kuteh is 42 years of age. He has been a qualified Mental Health nurse for 14 years having trained at Ashworth high security hospital. Since qualification he has worked in a number of settings primarily adult, although some with young people and for a variety of organisations and agencies. On 1 September 2007 he was sent by his agency to work at a secure unit for young people. He had worked there once or twice previously that week. During the course of that day the young people appeared to have planned a major disturbance and during the course of this it was alleged that Mr Kuteh punched and kicked a 15 year old girl KG. He was suspended by the agency and a referral was made to the Secretary of State. Upon investigation it was discovered that Mr Kuteh had received a police caution for an assault upon his daughter just two months previously on 2 July 2007.
4. The Secretary of States case is that Mr Kuteh is guilty of misconduct on 3 counts;

i) The Appellant slapped his own 9 year old child around the face 4-5 times to the extent that he caused her an injury. The evidence was that he also kicked the child on her hip whilst he was wearing his shoes. The reason given to the child for his violence was that she smelled. Her sister was so frightened that she chose to escape from a first floor window rather than risk facing him"

ii) The Appellant kicked and punched KG a resident at X

iii) The Appellant failed to inform [the agency] of the caution that was imposed in relation to the assault on his daughter, despite the ongoing obligation to do so and having signed terms of engagement in this regard.

THE EVIDENCE

5. The Tribunal had before it nearly 450 pages of evidence. We heard oral evidence from the following witnesses;

DC Sophia Keeling

Ms Catherine Myers

Ms Donna Marsh

Ms Dina Obeng

Mr Kuteh

Mrs Kuteh

Mr Nurian Salaam

6. We will deal with the evidence in respect of each allegation in turn.
7. THE ASSAULT UPON J
8. DC Keeling is a Child protection officer with Kent police. She was asked to undertake a joint visit to Mr Kuteh's children J and B with social services following a referral that they had been assaulted by their father. She met firstly with Mrs Kuteh who said that she had been working when contacted by her brother and sister in law because of an allegation by J that she had been assaulted by her father. She explained that she was separated from her husband and that he was usually a good dad but not a good husband as there had been some violence.
9. She then interviewed the children who were happy to talk with her but not to be video interviewed under Achieving Best Evidence guidelines. J said that her father had picked her up from school and when they got home he told her to get changed and do the washing up. She got a clean T shirt from the line and then went upstairs to change. Her father then came into the room and she was taking her jumper off. He told her that she smelt. She said that he had said this to her before and it hurt sometimes. He then kicked her on the hip whilst wearing his Timberlands and she fell to the floor crying. She remembered him saying something like "you wont do that again" He then pushed her out onto the landing and when she was out there this was when the aunt arrived at the house. Her dad dragged her back into her room and she sat on the bed. That is when he slapped her about the face, on both sides. She said it was about 4 or 5 times.
10. Her aunt came up defused the situation and took J to the bathroom for a bath. In the bathroom they noticed that there was blood in her mouth and her lip was bleeding. Her father came into her bedroom after her bath said he was sorry gave her a hug and left.
11. B said that she spoke to her father, she was scared as her uncle and aunt had left she left through a bathroom window and flagged down her uncles car. Eventually they all left the house together. B said she thought her father was going to hurt her.
12. DC Keeling was clear that the children had been consistent in their stories.
13. Mr Kuteh was arrested and interviewed by another officer he did not have a solicitor present. The police report indicates as follows; during the interview he said it was a regrettable incident but stated that his mother's ill health has caused him to lose it. He said he had picked the kids up that morning from the family home and saw that J's room was extremely messy. When they returned from school, he asked J to tidy her room and also do the washing from the night before. Suspect stated that J had started to cry and muck around, so she was sent to her room where he followed her. As she was getting changed, Mr Kuteh stated that her personal hygiene was bad and that she needed a bath. He said that he wanted to discipline her. He then admitted to slapping her across the face twice and denied striking her any more times than that. He also denied kicking her. After he slapped her, he saw that she was bleeding from the top gum. He said he immediately felt remorse for what he had done and apologised immediately. He said that he had never been violent towards his children before and accepted that this was not lawful chastisement. He then received a caution for common assault.
14. DC Keeling also referred to previous police involvement with Mr Kuteh. On 20 May 1999 he was given a two year conditional discharge for Common assault for "Punching victim in the face during an altercation over care repairs" A charge of Assault occasioning actual bodily harm was left to lie on the file. (This conviction was fully and properly declared by Mr Kuteh). There are four other reports of police involvement. Two of significance are one on 14 October 2003 – "Common Assault. Suspect attacked Sarah Kuteh hitting her over the head with a plate, causing a lump to her head and a small cut to her shoulder. He was arrested. Victim changed her story and refused to substantiate. NFA by police." The other was on 4/11/04 – "Harassment. Victim was followed and threatened by suspect. Victim believes that suspect thinks that she was the one who got her the sack from Ealing Broadway hospital, following an allegation that he had assaulted one of the patients. Suspect received a Harassment warning"
15. Mr Kuteh gave evidence of the incident with his daughter he admitted to slapping her across the face twice. Initially his position was that this amounted to reasonable chastisement but upon mature reflection conceded that it was not reasonable. He said that he was under immense pressure at the time because of marital and money problems and the illness of his mother. He denied causing the injury to J saying that it must have occurred after she left the room. He said " I was shocked to discover the bleeding. I hugged her and there was no bleeding when I left" He could not explain why he told the police that he had seen the blood. He said that this was totally out of character and that he was not a violent man.
16. Of the conviction in 1999 he said this was over an incident where a mechanic had taken his car to be mended, returned it late still broken and demanded money. He denied punching the person saying there was only some pushing. He denied assaulting his wife but accepted that the police had been called to the house on about 4 occasions'. He accepted that he had been served with a harassment notice but said that all he had been doing was talking to the person in question and that in reality this did not amount to harassment.
17. Mrs Sarah Kuteh gave evidence. She said that after the problems in the past their marriage was now happy and strong. She was not asked about the incident with the girls but did not take the opportunity of denying what they had said. She admitted calling the police four times but said that this was just to show Mr Kuteh that they would believe her over him. She denied violence but accepted in evidence before us that in July 2007 she had told the police that he had been violent to her.
18. THE FAILURE TO REPORT THE CAUTION
19. There was no contention that Mr Kuteh received a Caution. Mr Kuteh's evidence was however that he was not legally represented and thought that the caution was actually a police warning and that as such he was not obliged to report it. He accepted that his contract with the agency which he had signed was explicit about the duty to report.
20. THE ASSAULT UPON KG
21. We heard evidence from a number of members of staff who were on duty on 1 September. X is a medium secure hospital for the assessment, treatment and care of 17 young people aged 12 to 18 detained under the Mental Health Act. On the day in question there were only two permanent staff on duty the rest (12 in number as far as we can ascertain) were all agency staff including Mr Kuteh. It is unclear to us how much training and induction the agency staff had in dealing with the young people in the unit or indeed of the units practices and procedures.
22. Catherine Myers is a Registered Mental Nurse and was in charge of the shift on 1 September. She became aware during the course of the shift that trouble was brewing. At about 6.05 after dinner a disturbance began when a young person assaulted Dina Obeng by punching her in the back and head, other young people joined in and the staff became involved in trying to protect their colleague and at the same time restrain the young people. According to her evidence some twenty minutes or so later Mr Kuteh arrived and was asked to get some medication he came back with the medication made up in a syringe. He then assisted in the restraint of the young people while she left the area. She returned to see the riot continuing. The young people attacked another worker KH. The police had arrived but apparently refused to intervene. There were about five young people still fighting. At this point she saw Mr Kuteh punch and kick KG. He was then told to leave the floor.
23. Eventually the police called a riot squad who entered the building and made it safe. When giving evidence Ms Myers became very emotional and it was obvious to us how traumatic the shift had been for all concerned. In cross examination Ms Myers remained adamant that she saw Mr Kuteh punch and kick KG. She was adamant that these were not defensive actions and that they did not accord to good practice. At no point did she see any other staff member retaliate or act inappropriately despite the severe provocation. She confirmed that she had not met Mr Kuteh before that shift. It was put to her that there was a similarity in the wording of a statement made by her the next day and that of one made by Donna Marsh. She denied any collusion.
24. Donna Marsh gave evidence. At the time she was a support worker at X. She is no longer working there and said that she felt that staff morale in September 2007 was quite low. She confirmed Ms Myers evidence regarding the build up to the riot. She described the situation as very volatile. She was about a metre away from Mr Kuteh restraining another young person. She saw KG lash out at him and he retaliated by hitting her and kicking her. She saw an injury to KG's leg before the police intervened. She denied colluding with Ms Myers in making her statement saying that effectively she used the start of the statement prepared earlier by Ms Myers as a template. Again she did not know Mr Kuteh at the time.
25. Sally Page ran the agency at the time and explained the working of the agency. She accepted that the agency had provided no specialist training to Mr Kuteh.
26. Dina Obeng was called by Mr Kuteh. She gave graphic and distressing evidence about the assault upon her by up to 5 young people. She was clearly very effected by all that had occurred. The assault upon her was near the beginning of the riot and she did not see Mr Kuteh with KG or assault her.
27. Nurian Salaam was another agency worker on duty on 1 September and was again called by Mr Kuteh. He corroborated how distressing the day had been. He did not see Mr Kuteh hit or kick KG although he was present when staff came to the assistance of KH and saw KG attack Mr Kuteh
28. KG made a statement to the police. She said that "I was assaulted by a member of staff called Elvis. He assaulted me by slapping me in the face and kicking my leg. This caused me to have a bruise on my leg" She decided however not to press charges.
29. She was seen by a hospital doctor on 3 September. He reported as follows; "I saw Kirsty on Monday morning (3 September) She reported that she had been assaulted by a member of staff and that he had punched her kicked her in the leg and head butted her." He examined her and reported on her leg "Her right leg was mildly swollen and badly bruised covering a majority of the area between knee and ankle. Just under her knee was a small clean cut with fresh oozing of blood. The laceration was approximately 1cm long"
30. Mr Kuteh gave evidence regarding the incident. He said that he was an experienced psychiatric nurse trained at Ashwood. He was trained in the relevant Control and Restraint techniques. Again he described how painful, distressing and chaotic the whole incident was. Mr Kuteh was adamant in his denial that he did anything but restrain KG. He described going to the support of KH. He took hold of KG's wrist and twisted it to get her away from KH. KG then turned on him hitting scratching and spitting. He held his hands up to defend himself only and left the floor with other staff. At no stage did he hit or kick KG. When asked about the injury to KGs leg he said that at some stage earlier she fell over and it could have occurred then or alternatively when the police finally intervened. He felt very aggrieved that he was suspended from the agency and referred to the secretary of state without ever having the opportunity of challenging what was alleged against him. He pointed out that there had been a debriefing meeting on 1 September and that at no point had anybody made any allegations against him.

THE LAW

31. By S1(1) Protection of Children Act 1999 the Secretary of State has a duty to keep a list of individuals who are considered unsuitable to work with children, By Section 2 any organisation may refer an individual if certain conditions are satisfied. It was under this Section that Mr Kuteh was referred as set out above.
32. S4 of the Act gives a person so referred the right to appeal to this Tribunal. By S 4(3), the Tribunal may only dismiss the Appellant's appeal if:

(a) it is satisfied that he was guilty of misconduct (whether or not in the course of his duties) which harmed a child or placed a child at risk of harm; and

(b) it is satisfied that he is unsuitable to work with children.

33. There are in our view two tests to apply. The first test is conjunctive and the second only comes into play if the first two limbs are both satisfied. The Tribunal has firstly to show an act or acts of misconduct AND secondly that that act ( or those acts) have harmed a child or placed a child at risk of harm. It is only if those two tests are satisfied evidentially, applying the civil test of Balance of Probability, that the third test is reached. The test of suitability is not an evidential test per se, but an exercise of discretion by the Tribunal applying its experience to the evidential matters it has considered previously.
34. Harm is defined by S12(1) of the Act as having the definition as set out by S31(9) of the Children Act 1989, which provides:

"'harm' means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another;

'development' means physical, intellectual, emotional, social or behavioural development;

'health' means physical or mental health;

'ill-treatment' includes sexual abuse and forms of ill-treatment which are not physical."

35. The Tribunal must consider unsuitability as at the date of the hearing before it.
36. The question of unsuitability is to be considered generally by reference to the well-known Mairs factors, which can be summarised as follows (paragraph 111 of Mairs v Secretary of State [2004] 269.PC):

a. Unsuitability must be judged by the Tribunal at the date of the hearing.

b. 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.

c. 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.

d. The Tribunal may have regard to: the number of the incidents constituting the misconduct; the gravity of that misconduct; the time that has elapsed since that misconduct; the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential to harm a child; the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct; and extenuating circumstances surrounding the misconduct.

37. At paragraph 109 of Mairs, the Tribunal emphasised that consideration of unsuitability involved an assessment of risk to children.
38. The purpose of the listing scheme and importance of public confidence therein was reiterated by the Tribunal in Ryde v Secretary of State [2006] 0856 PC at paragraph 33:

"The purpose of the listing scheme is to protect children from those who are employed to work with them and to maintain public confidence in the care provided to children. Listing under the scheme involves a difficult balancing exercise between the safety of children and the rights of individuals to have their livelihoods and reputations safeguarded (see Lady Justice Hale in R v The Secretary of State for Health ex parte C (2000) EWCA 49)."

FINDINGS OF FACT

39. We did not have the advantage of hearing from the children nor were they interviewed under ABE conditions. We have to treat their allegations with a degree of caution. Nonetheless we have to put their allegations into the context of the situation at the time which Mr Kuteh accepts was tense, his partial admissions the manner in which they related the incident to DC Keeling and the testimony of both Mr and Mrs Kuteh as to what normal truthful children they are. Although Mr Kuteh denied the full extent of the allegations he offered no explanation as to why his children would lie. Although he finally accepted that his admitted actions were unreasonable he maintained that his actions amounted to reasonable chastisement both to the police and in pursuing this appeal. He also gave different accounts to the police and ourselves about whether he was aware of the blood upon J. We can find no reason to disbelieve the girls' story. We found Mr Kuteh's evidence to be inconsistent and his attitude to the incident dismissive. It amounted to a serious loss of control leading to a caution for assault. The fact that this was an assault upon his own child does not diminish the seriousness of the matter and in our view patently amounts to misconduct.
40. In considering the issue of impulse control we have to be cognisant of the existence of the 1999 conviction. It was an assault it is described in the papers as being "subject punching victim in the face". Again Mr Kuteh was dismissive of this saying that he merely pushed the mechanic. The fact that police were called to the house 4 times by Mrs Kuteh and that in 2007 she described violence him on her is in our view equally significant. There is also the harassment warning given. This related to the harassment of a person who it was alleged had got him the sack for revealing an assault by him in his work place. So much involvement by the police suggests at best a degree of volatility that would cause anybody concern.
41. We have no doubt having heard Mr Kuteh's evidence that he fully understood the nature of the Caution and his duty to disclose it. He did after all disclose his 1999 conviction. His failure to reveal it was in our view quite deliberate and we find amounts to misconduct.
42. Turning now to the incident on 1 September 2007. We have no doubt that this was an extremely traumatic day. We understand that practices have changed but to have so many agency staff on duty with no relationship with the young people is asking for trouble. The "riot" was extreme and the young peoples behaviour totally reprehensible yet none of the staff on duty had any allegations made against them except for Mr Kuteh. It is important to examine the sources of those allegations. They come from both staff and the young person in question. Mr Kuteh was not known to Ms Myers and Ms Marsh. Despite attempts by Mr Jonjo to suggest that their evidence was some how collusive we can find no evidence of this nor can we find any motivation for them both independently making the allegation up. Given the chaotic situation it is not surprising that the incident was not seen by all staff their failure to see it does not mean it did not happen as described.
43. If the allegation had come from KG alone we would have been cautious in accepting her account but it does corroborate what Ms Marsh and Ms Myers said. The injury observed on 3 September in hospital is also consistent with a kick as described but not consistent with a fall and clearly occurred before the police arrived.
44. We do not find Mr Kuteh's account to be credible. It is also clear from the findings already made that he is a man with poor impulse control. We therefore find that Mr Kuteh did assault KG by punching her in the face and kicking her in the leg. This was no doubt a reaction to extreme provocation but nonetheless displayed an unacceptable response to the situation.
45. Vulnerable people have a right to expect that people who care for them can control their temper and will not put them at risk. Mr Kuteh in our view` clearly has problems with his temper and what is worse in many ways, fails to recognise and accept this. If he had accepted that incidents had occurred, shown contrition, accepted responsibility and shown that he had taken steps to deal with the problem we may have had sympathy for him as he is clearly a decent and dedicated man. In his evidence however he consistently minimised and down played the significance of matters. He accused colleagues of lying and throughout accepted no responsibility for his own actions.
46. Given all these factors it is clear to us that he is not a person who is suitable to work with Children or Vulnerable persons.
47. Accordingly we dismiss both appeals against inclusion on the POCA and POVA lists

Mr I Robertson (Nominated Tribunal Judge)

Ms Jennifer Cross (Specialist member)

Mr Jim Lim (Specialist member)