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

Gareth Wealleans

-v-

Secretary of State

[2009] 1658.PT

-Before-

Ms. Melanie Lewis

(Tribunal Judge)

Mr Paul Thompson

Ms.  Janice Funnell

Application to Strike Out.

Decision

Introduction

1.          The Appellant appealed on Appeal form received by the Tribunal on 5 November 2009 against the decision dated 22 July 2009 to prohibit the Appellant on the grounds of unsuitability from working with children and barring him from employment to which section 142 of the Education Act applies. On 27 November 2009 the Treasury Solicitor applied for the appeal to struck out pursuant to Rule 8(4) (c) of the Tribunal Procedure (First tier) (Health, Education and Social Care Chamber) Rules 2008 , on the basis that it had no reasonable prospect of succeeding.

2.     The background is that the Appellant was convicted on 27 January 1999 of murder. The documents filed by the Respondent do not refer to the facts, which we take from the written submissions filed on behalf of the Appellant. The Appellant was sentenced to life imprisonment with a 13 year tariff and is now some 10 years into his sentence.  We do not know the Appellant’s date of birth but it is said that he was ‘little more than a youth’ at the time of the offence’.  The deceased was an older man with whom he lived. There was no sexual relationship nor was he a carer so the offence did not occur during the course of employment.  It was a mutually convenient living arrangement. The Appellant had no previous convictions.

3      Since being in prison the Respondent accepts that the Appellant has a good disciplinary record and has gained practical experience in educating adults with learning difficulties and mental health problems within the Prison’s educational programmes. The Appellant has supplied three references, two from Prison officers and one from the Peer Partner Tutor/Coordinator. All are very positive about his commitment and the skills that he had developed, managing difficult satiations well. None identified that he would be a risk to children or vulnerable adults. 

4.     We now consider the application to Strike Out in accordance with the Directions given by Deputy Principal Judge Oliver, who given that the Appellant is a serving prisoner did not direct that there be an oral hearing. We have considered the Respondent’s grounds for opposing the appeal and written submission prepared by Benjamin Knight of Counsel in response to the application for the proceedings to be struck out. 

The Law:

5.     Rule 8(4) of the 2008 Rules states that the Tribunal may strike out the whole or a part of the proceedings if they consider that there is not a reasonable prospect of the applicant’s case, or part of it succeeding.

  6.     The test is a high one and we would have to be satisfied that without any need to consider the full and detailed representations (whether written or oral), there is no merit in the appeal.

The Respondent’s Case:

7.     The Respondent referred to the importance to the maintenance of public confidence:  CN v Secretary of State  [2004] 398.PC/399.PVA. In FH v SS [2005] 0552 PT, the Tribunal referred to its acceptance in Mason v SS (2001) 00788 that the question whether the decision was appropriate had to be viewed in the context of the purpose of restricting a person’s employment, which was two fold:  protecting children and maintaining public confidence.  The Appellant’s case did not address this point. In FH, the Tribunal had referred to Mosley v SS  [2002] 1PC  on the public expectation that teachers would demonstrate their ability to be in a position of trust not just in their professional sphere but also in their  personal conduct. In that case a teacher had been convicted of serious offences of dishonesty in relation to charity administration. 

The Appellant’s Case:

8.     It was submitted that the Appellant had a reasonable prospect of success,, as he had never committed any offence against any child, young person or vulnerable adult, nor was there any statutory bar on a person convicted of homicide working with children. The Secretary of State had not considered the detail of the Appellant’s offence. The Appellant had no intention of working with children but wished to work not as a teacher but a teaching assistant in adult education. His case had to be examined on its own facts.

9.     In two years the Appellant would be released on licence after a detailed risk assessment and monitored and subject to conditions. It would be a condition that of being on licence from a life sentence, that he seek permission before gaining any employment. Therefore rather than using the “blunt tool” of the Education Act  2002, it would be more proportionate and appropriate to ask the Public Protection Casework Team  to impose a condition to prevent the Appellant working with children. The public also had an interest in allowing the Appellant to rehabilitate himself.

10.   The cases cited were distinguished on the basis from that of the Appellant‘s case as they were a different set of facts. He had not committed any offence against a child or during the course of his employment. It was not accepted that the Appellant would be eligible to apply for a review after 10 years: s. 142 (6) Education Act 2002.

Conclusion and Reasons: 

11.  We are not satisfied that it can be said that this appeal has no  merit without the need to consider full and detailed representations as to the proportionality of the decision in the light of all the facts. In particular the Tribunal will want to look at what conditions can and will be imposed on the Appellant in any paid or voluntary employment.

12.  A conviction for murder would in many cases justify barring, particularly where the offence involved children and/or was committed during the course of employment, but each case must be looked at on its own facts. 

13.  We are satisfied that the points made on behalf of the Appellant are arguable.  It is accepted that the Respondent is right to consider that public confidence would require that the Appellant should not work with children. However, that public confidence could arguably extend to allowing the Appellant to rehabilitate himself and to continue to assist in teaching, subject to a number of conditions and assessments of the risk by the relevant authorities.   The exclusions set out at section 142(2) (c) Education Act 2002 are wide ranging and would prevent the Appellant not just working in a school but providing education under a contract of employment or for services where the other party is a local education authority or a person exercising a function in relation to the provision of education on behalf of a local education authority. Such a prohibition might well cover services working with ex-offenders and/or those who have basic literacy needs, which might be an outlet for the Appellant’s skills and experiences to date.

14.   The case will therefore be set down for a telephone case management hearing so that further directions can be given.  All grounds are arguable.

The application to strike out the appeal is dismissed.

Ms Melanie Lewis

Mr Paul Thompson

Ms Janice Funnell

Date: 18 January 2010.