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

Carter v Secretary of State BAILII temp citation: [2009] UKFTT B1 (HESC) (30 March 2009)
Procedural matters
Preliminary matters

Paul Anthony Carter -v- Secretary of State [Preliminary Issue] 2008.1333.PT
PRELIMINARY ISSUE
1. The Appellant in this case was employed by Cornwall County Council as a peripatetic music teacher. As a result of certain allegations, the Secretary of State gave a Direction under section 142 of the Education Act 2002 (the so-called List 99). It would appear that the Secretary of State had regard to an Expert Report dated 12^th August 2007 produced by Dr J Earnshaw together with a Response from Dr Earnshaw dated 5^th December 2007 to a letter from the Appellant which had been a comment on the original Report.
2. The Appellant appealed the decision of the Secretary of State and wished the Tribunal to admit in evidence his own Expert Report written by Dr Ian Anderson, which he says rebuts the findings of Dr Earnshaw. In addition, he wishes to rely on a number of character references. Neither the Report prepared by Dr Anderson nor these character references were available to the Respondent when the decision was made to make the Direction under section 142.
3. During the course of the Case Management Conference on 12^th December 2008, the question arose as to whether Dr Anderson's Report and the character references could be admitted in evidence before the Tribunal.
4. The Appellant submitted that this material could be admitted in evidence by virtue of Rule 15(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 that are now in force and which, it is agreed by both parties, are to be applied to this case. The Respondent submitted that Regulation 13(2) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 prevents consideration of this material, and that Rule 15(2)(a) has not changed this position.
5. Given the difference of approach adopted by the Secretary of State and the Appellant, and given also the fact that there other current appeals that raise similar issues, permission was given by the Directions dated 15^th December 2008 for both parties to provide written submissions on the preliminary issue.
6. The Respondent produced his skeleton argument prepared by Mr D Blundell of Counsel dated 15^th January 2009. The Appellant's written submissions in response produced by Mr P Norsworthy of Counsel is dated 17^th February 2009. The Respondent's Response to these Written Submissions is dated 15^th March 2009, and which was received by the Tribunal on 20^th March 2009.
7. Regulation 13 of the 2003 Regulations states:

(2) The Tribunal shall not, in exercising its powers under this regulation, consider –

(a) any information relevant to the decision to give a direction or not to revoke or vary a direction which the Secretary of State did not have at the time the decision was made; or

(b) any evidence of a material change of circumstances of the person concerned occurring since the decision to give a direction or not to revoke or vary a direction was given.

Rule 15(2)(a) of the Tribunal Rules 2008 states:

(2) The Tribunal may –

(a) admit evidence whether or not –

(i) the evidence would be admissible in a civil trial in England and Wales; or

(ii) the evidence was available to a previous decision maker;

8. The Respondent in his skeleton argument states, in summary, that "Rule15(2)(a) is a general provision relating to the admission of evidence in a broad category of cases, which does not displace the fundamental and specific limitations on the First-tier Tribunal's powers imposed by Reg 13(2) of the 2003 Regulations."
9. The Appellant, in the Written Submissions dated 17^th February 2009, accepts the Respondent's submissions that the 2003 Regulation prevented the Tribunal from considering evidence that was not placed before the Secretary of State when he made his decision.
10. That approach has been confirmed as the legal position by Dyson LJ in Secretary of State v JN [2008] EWHC 1199 (Admin) and by Collins J in Secretary of State v Philliskirk [2008] EWHC 2838 (Admin). In the former case, Dyson LJ accepted the approach of the Tribunal in FH v Secretary of State [2005] 552.PT, and said: "The Tribunal must form its own view as to whether or not, on the evidence before it, which is the same evidence as that which was before the Secretary of State, there existed sufficient grounds for the direction to be given under section 142." In the latter case, Collins J, in considering the powers of the Tribunal said: "It is the exercise of its own judgement that is important. But, as the regulation makes clear, that judgement must be exercised upon and only upon the material that was before the Secretary of State."
11. The approach that should be taken in these cases has not been without difficulty and before dealing with the specific issue that has arisen in this case, it may be useful to set out the approach that the Tribunal has taken hitherto in dealing with Regulation 13(2)(a). A recent case of the Tribunal is SW v Secretary of State [2008] 1307.PT. The Tribunal said in that case: "The object of the legislation appears to be to enable the Secretary of State to consider the significance of any new information or change of circumstances before a tribunal does; it does not prevent a tribunal from receiving more detailed evidence about an issue raised in information that has previously been before the Secretary of State." It would seem that Counsel for the Secretary of State in SW accepted that it could not have been the intention of the legislature that a tribunal could never have regard to new evidence. The Tribunal said: "We agree with her that it is a matter of judgement whether more detailed evidence received at a hearing before a tribunal amounts to new information for the purposes of regulation 13(2)(a)."
12. The approach taken by the Tribunal has been that new information, and in this case the new expert report and character references fall into that category, must be considered first by the Secretary of State, and the proceedings before the Tribunal are stayed pending the Secretary of State's consideration of this new information.
13. It is of course for the Tribunal to determine whether a direction was an appropriate or proportionate response in all of the circumstances. The Tribunal has to exercise its own judgement based on the information before the Secretary of State, and it is inevitable in the context of an oral hearing that it will hear an explanation of the particular events that may well be provided by the Appellant in more detail than he provided in written submissions to the Secretary of State. The Tribunal is entitled to consider this evidence when reaching its decision. (See MC v Secretary of State [Interlocutory Decision] [2007] 1193.PT). In summary, the Tribunal is entitled to consider detailed evidence of the information that was available to the Secretary of State, but is not entitled to consider new information.
14. Mr Blundell on behalf of the Secretary of State submits that Rule 15(2)(a) has not changed the position. He argues that as Regulation 13(2)(a) has not been repealed "it was plainly envisaged that Regulation 13(2) would continue to operate as it had done previously." He argues that it would be extraordinary for a discretionary regulation dealing solely with evidence in general terms to have the effect of enlarging upon the statutory powers of the Tribunal which are expressly and in mandatory form limited by an earlier and more specific provision. Mr Blundell submits therefore that the Appellant's Expert Report and the character references be excluded.
15. Mr Norsworthy on behalf of the Appellant submits that regulation 13(2)(a) has been superseded by Rule 15(2)(a). He argues that there is nothing within the Procedure Rules that excludes List 99 appeals from being subject to Rule 15, and draws attention, for example to, Rule 18 that states "This part does not apply to mental health cases" and Rule 31 which reads "This Part applies only to mental health cases". He submits that if it had been the intention that Rule 15 be excluded from application to List 99 cases then the draftsman would have included such a provision as he had done in Rule 18. Mr Norsworthy therefore submits, that the Appellant be permitted to rely on his expert report and the character references that were not before the Secretary of State.
16. I am grateful to Counsel for their detailed consideration of this case. I have arrived at the conclusion that Mr Blundell is correct in his analysis of the law. Rule 15 is not a modifying Rule; rather it sets out a discretionary basis for the admission of evidence in cases before the First tier Tribunal. I agree entirely with Mr Blundell's reliance on the maxim that "a general provision does not derogate from a special one."
17. Education Act cases have been subject to a different statutory regime from PoCA and PoVA cases. Regulation 9 of the 2003 Regulations enables an appellant, with fresh information, to seek a Review from the Secretary of State, which, if unsuccessful, triggers another right of appeal when the new information will of course be considered by the Tribunal. In contrast, in PoCA and PoVA appeals, the Tribunal is entitled to look at the information that is to hand as at the date of hearing. The distinction between Education Act appeals and PoCA/PoVA appeals has not been removed by the Tribunal Rules.
18. The Appellant has raised issues regarding Article 6. Suffice it to say that for present purposes, it is my view that the Education Regulations are Article 6 compliant. The Appellant is entitled to adduce new information to challenge his inclusion on List 99 by way of a Regulation 9 application for a Review to the Secretary of State. The Respondent is correct when he states that the grounds for a Review under Regulation 9(2)(a)(b) are disjunctive (Regulation 9(1) states 'either or both'), and therefore the absence of a material change of circumstances will not prevent a Review. I agree also with Mr Blundell's view of the decision of the House of Lords in R (on the application of Wright) v Secretary of State for Health [2009] UKHL 3. This case was concerned solely with the provisional listing regime under PoCA and PoVA, and indeed Baroness Hale expressly stated that they had not heard arguments upon whether or not the scheme introduced by and under the Safeguarding Vulnerable Groups Act 2006 is compatible with Convention rights. Likewise the House did not hear arguments about List 99. Some of the observations in Wright may well be relevant when issues arising from the Safeguarding Vulnerable Groups Act 2006 fall for consideration by the Administrative Chamber of the Upper Tribunal and by the Courts, but there is nothing in the speeches in the House of Lords that has a bearing on the structure of List 99.
19. Accordingly, and for the reasons as set out above I have decided that the Appellant's expert report and the new character references are excluded from consideration by the Tribunal under Regulation 13(1)(a).
20. The Secretariat will now arrange for the Case Management Conference to be resumed, in preference by telephone unless either party requests an oral hearing, at a convenient time as soon as is practicable.

ORDER ACCORDINGLY

His Honour Judge David Pearl

Principle Judge, Care Standards

30^th March 2009.