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

FIRST TIER TRIBUNAL (CARE STANDARDS)

IN THE MATTER OF

TC

Appellant

AND

SECRETARY OF STATE FOR EDUCATION

Respondent

(2009) 1585.PT

BEFORE

MR. BRAYNE (TRIBUNAL JUDGE)

MS. JOFFE

MS. ADOLPHE

DECISION

Heard on the 7^th February 2011

Asylum and Immigration Chamber, Manchester

Representation

For the appellant: Ms Broadfoot of Counsel, instructed by Treasury Solicitor

For the respondent: Mr Ross, Russell and Russell, Solicitors

The Appeal

1.     This is an appeal by Mr RC under Section 144 of Education Act 2002.  He seeks an order that his name be removed from a list of persons determined by the Secretary of State under section 142 of that Act to be unsuitable to work with children.

2.     The respondent made the determination to include the appellant in this list on 18^th January 2008, under Regulation 8, Education (Prohibition from Teaching or Working with Children) Regulations 2003 as amended.  This had the effect of prohibiting him from carrying out work to which section 142 of the Education Act 2002 applied, that is, working with children.

3.     The decision under appeal, however, is dated 29^th January 2009. That was the respondent’s decision to refuse to revoke the direction of 18^th January 2008.  Such a decision to revoke, or not to revoke, the direction is made under Regulation 8A of the 2003 Regulations, as amended. The refusal gave rise to a right of appeal to the First-tier Tribunal.

4.     Any reference below to the Act, unless otherwise specified, is to the Education Act 2002; any reference to the Regulations is to the Education (Prohibition from Teaching or Working with Children) Regulations 2003 as amended.

Preliminary Matters

5.     On 23^rd July, 2010 Tribunal Judge Lewis made a Restricted Reporting Order under Rule 14 (1) (b) of the Tribunal Procedure (First Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, prohibiting until the final hearing of the appeal the publication of any matter likely to lead members of the public to identify any child.  We now extend that order indefinitely.

6.     The hearing of the appeal was scheduled for November 2010.  The hearing was postponed on Judge Brayne’s direction because the respondent’s witness was not available. 

7.     The appeal was then listed for hearing on 7^th and 8^th February 2011.  However the Tribunals Service overlooked the fact that the appellant’s witness, Ms G Taylor, would not be available on either day to give oral evidence.  Judge Brayne, mindful of the fact that the decision under appeal had been made more than two years earlier, directed that the hearing date of 7^th February be maintained, and that the Tribunal would hear the available evidence and then give such directions as it then considered appropriate for receiving the evidence of Ms Taylor and final submissions.  In the event Mr Ross, having heard the evidence and Ms Broadfoot’s submissions, and taken Mr TC’s instructions, submitted that it was not necessary to adjourn to hear from Ms Taylor in person. 

8.     The respondent’s witness was still unavailable on 7^th February 2011. The respondent informed the appellant and the Tribunal of his intention to rely on an alternative witness, Mr Greaves, for whom a witness statement was served.  At the hearing Mr Ross had no objection to this substitution and Mr Greaves was permitted to give evidence.

History leading to this appeal

9.     The events leading up to the decision under appeal are not disputed.  Mr TC, when cross examined, adopted the account set out by Ms Taylor, the witness referred to above, in Part 4 of her report, and the following is based on that account. 

10. The victim of Mr TC’s offence is here referred to by the initial “A”. The offence took place on 6 July 2007, at which date Mr TC was 18 and A was 14.  Mr TC knew A, and he has never denied that he knew that she was 14.  He told us in the hearing that she was not part of his friendship group.

11. A had previously texted him to say that she wanted to meet up with him.  On the day of the offence, 6 July 2007, Mr TC had met up with friends in a local shopping mall.  They together then met A. 

12. Mr TC, his friends, and A, all went to Mr TC’s house, where A said to Mr TC, within the earshot of the others, “do you want to go upstairs?”.  Mr TC and A went upstairs, and A began to remove her clothes.  Mr TC and A had sexual intercourse.  After that he went downstairs, while she got dressed.  A then came downstairs, and said she was going home as she had arranged to go out with her mates.

13. The following day A repeatedly texted  Mr TC, but his mobile phone was being recharged and was out of use.  He later discovered messages saying she knew he would not return her texts and he would be sorry.  The evening after the incident, A made a complaint to the police.  Mr TC was interviewed and then cautioned. 

14. The caution is set out in the record from the PNC. 
The offence is “sexual activity female child U16 offender 18 or over penetrate anus/vagina/mouth by penis/body part on 06/07/07.” 

15. A consequence of a caution for an offence under section 9(1)(a) Sexual Offences Act 2003 is that, under section 142 Education Act 2002 and Regulation 8 Education (Prohibition from Teaching or Working with Children) Regulations 2003 (as amended), the Secretary of State must make a direction prohibiting Mr TC from carrying out work to which section 142 applies, on the grounds that such a person is unsuitable to work with children.  This requirement on the Secretary of State was referred to in the proceedings as “auto-inclusion”. 

16. The Secretary of State’s direction is dated 18 January 2008.

17. Regulation 8A of the 2003 Regulations, which refers to a person in Mr TC’s position as X, provides as follows: 

(2) Subject to paragraph (5) [which is not relevant for present purposes], the Secretary of State must afford X the opportunity to make representations to him and, where appropriate, submit medical evidence or other evidence to him within 2 months of the date on which notice of that opportunity is served on X or, where he is satisfied that X had good reason not to make such representations or submit such evidence within that period, such further period as the Secretary of State considers reasonable.

(3) If it appears to the Secretary of State that X is not unsuitable to work with children, the Secretary of State must revoke the direction.

18. Mr TC’s solicitors submitted representations to the respondent on 23 May 2008 (the respondent having allowed extra time in order for Mr TC to obtain additional evidence).  In addition to the representations contained  in the letter, he submitted a risk assessment by consultant clinical psychotherapist Geraldine Taylor, and four character references.

19. It is the respondent’s decision not to revoke the direction, communicated in a letter sent on 29 January 2009, which is now appealed. 

Evidence

20. Since the above facts are not disputed, we need only refer to the evidence which relates to the decision not to revoke the direction.  The respondent’s evidence comprised two witness statements from Mr Alderson, who works in the Respondent’s Children’s Safeguarding Operations Unit, and has done so for nine years.  This witness was not available to give evidence, but the contents of his statements were explicitly agreed to by Mr Gleaves, who works in the same team and has done so for four years. 

21. Mr Gleaves was available to give evidence, and we were very grateful to him for doing so, as this enabled the appeal to progress instead of waiting for Mr Alderson to be available.  In the circumstances, any criticisms of matters referred to by him are not intended as criticisms of Mr Gleaves personally.  Mr Gleaves, after confirming his witness statement, was cross examined, then answered questions from the Tribunal.  As we raised matters which had not been raised in cross examination, we allowed Mr Ross the opportunity for further cross examination, before inviting re-examination by Ms Broadfoot.

22. The appellant relied on the material previously provided to the respondent for the purposes of the representations submitted in 2008, and also gave evidence himself.  He adopted his witness statement, was cross examined, and then briefly answered questions put by the Tribunal.  He was not further cross examined or examined, though we provided the opportunity to do so.

The issues to be determined

23. The right of appeal is found in section 144(1)(b) of the 2002 Act.  This Tribunal is now asked to revoke the direction under section 144(2) and Regulation 10, which requires us to determine whether Mr TC should continue to be subject to the direction, and if we are satisfied that he is no longer unsuitable, to dismiss the direction.

24. The issue for the Tribunal to determine is, therefore, whether the appellant is “not unsuitable”.  The test to be applied was agreed by the parties in preliminary discussion to be that set out in FH v SSE [2005] 0552.PT [55]:

“Thus the Tribunal is, in this instance, confined to carrying out a review of the decision made by the Secretary of State. The Tribunal is not empowered to re-hear the case or to determine the primary facts. It is required, in effect, to decide whether the Secretary of State had sufficient evidence upon which to base a determination that the specified ground relied upon existed, and further to decide whether the direction was an appropriate or proportionate response in all of the circumstances known to the Secretary of State”.

25. Further guidance from Dyson LJ in SSE v JN [2008] EWHC 1199 (Admin) at paragraph [23] confirms that this is the correct approach:

“... 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. The Tribunal thereby decides whether the Secretary of State’s decision was reasonable”.

26. The respondent’s case was set out with admirable clarity in the response, and again by Ms Broadfoot.  It was re-iterated by Mr Greaves in his oral evidence, which itself reflected the opinion expressed in Mr Alderson’s witness statement. 

27. There are two broad headings under which the respondent justifies his refusal to find that the appellant is not unsuitable: the first is risk, and the second is maintaining public confidence.  Ms Broadfoot volunteered that should the Tribunal find there was no risk, the public confidence argument must also fail.  However, Mr Ross submitted that zero risk is not a possible finding, and we agree with him. There are no circumstances in which zero risk can shown.  We must therefore assess both the question of risk, and the question of public confidence. 

28. The respondent’s case, as summarised by Ms Broadfoot, was that there is a presumption of unsuitability in the legislation.  There had to be reasons to take someone off the list after auto-inclusion.  There were no such reasons.  The offence had been opportunistic; there was no loving relationship – in fact there was no relationship; the pair simply went upstairs and had what Ms Broadfoot labelled perfunctory sex, and there was no contact after that.  The appellant had admitted that he knew at the time that it was wrong, even if he said he did not know until later that it was illegal.  Knowing it was wrong, he had continued to have sex for his own gratification.  He had admitted in oral evidence that what he had done could be seen as taking advantage of A.  He had continued to show a lack of insight, attempting to shift responsibility from himself by continuing to claim that the victim looked older than her age (in the grounds of appeal and in his witness statement), and referring to the victim’s agreement to participate.  His appeal had focused on the adverse impact the offence had had on him, and he had failed to show empathy with the victim.  As the older person he should have known better.  The opinion of the psychotherapist carried little weight; the methodology was not detailed and the opinions were not referenced.  She had not explored with Mr TC why he thought his actions had been wrong, nor whether he had committed similar acts before or since.  She had not explored with him the effect the act had had on the victim.

29. The appellant’s case was, as summarised by Mr Ross in his closing submissions, that there had been a failure by the respondent to exercise discretion.  The respondent had failed to show how risk, or public confidence, was evaluated or taken into account; had required the appellant to demonstrate that there was no risk, which was not possible.  The only actual evidence of risk was that presented by the appellant’s expert.  The respondent had challenged the methodology of the expert, but had not shown the opinion of low risk to be wrong.  The respondent could not reasonably say that there were no mitigating factors, as the appellant had always accepted responsibility and admitted that he knew the victim’s age; the respondent’s witness had testified that offences of this sort were not uncommon; Mr TC had no other convictions or cautions, either before or since this caution; he had good testimonials.  The offence had not been pre-planned and was, as the respondent had also argued, opportunistic.  Ordinary sensible people – the test laid down in the case law referred to by the respondent – would not see a case where there had been no grooming, no targeting, and which comprised a single offence, as a bar to working with children.

Evaluation of the evidence

30. Ms Broadfoot’s submission that Ms Taylor, the appellant’s expert, failed to explore with him whether the appellant had committed similar offences before or after this incident has to be ignored.  The respondent has accepted the appellant’s version of the facts, which mean he has accepted that the appellant has no other convictions or cautions.  It is not appropriate to seek to raise matters relating to his character in this way, or to suggest that the psychotherapist should have explored matters of fact when those matters were not then and are not now in dispute.

31. It is true that Mr TC and A were not in a loving relationship.  We cannot see how this aggravates his behaviour.  If the parties had had such a relationship the respondent would have rightly been able to argue that the offence was aggravated by repetition.  We do not see how it aggravates the offence or increases risk to refer to the fact that the appellant knew he was doing wrong.  At the same time the respondent rightly submits that the appellant cannot gain benefit from the fact that he says he did not know it was illegal.  He has at all times admitted that he knew it was wrong and that he knew her age.  We cannot see the relevance of the attempt to convince us that the act of sexual intercourse was perfunctory.

32. The respondent places importance on the fact that the appellant referred more than once (in the appeal, in his witness statement, and in what he told Ms Taylor) to the mature appearance of the victim.  The respondent describes this as an attempt to shift blame from himself.  However, we note that he has at no point sought to say he was not at fault.  We do not consider the mature appearance of A as a mitigating factor, but the fact that the appellant referred to it does not necessarily show him to lack understanding.  He has not at any time put her apparent maturity forward as a justification for the criminal act.  Both parties describe the act as opportunistic.  The apparent maturity of the appellant is a part of the context in which that opportunistic act took place.  We do not see it as evidence of increased risk or lack of insight that the appellant sought to refer to this aspect of his offence.

33. Mr Greaves defended the decision of the Secretary of State by saying that there were no mitigating factors.  However the Secretary of State had before him four testimonials.  They are all from individuals whose opinions must be capable of carrying at least some weight.  If they are to carry no weight at all, which must be how the respondent viewed them in reaching the conclusion that there is no mitigating fact Mr Greaves describes, reasons must be provided.  One of these references is from a JP.  Another is from a retired police officer. A third is from the father of the appellant’s girl friend.  The fourth is from his employer.  These people are, of course, not experts.  However, they must fall within the category of “ordinary sensible” people”, acknowledged by Ms Broadfoot to be those whose opinions should be taken into account when looking at public confidence. 

34. In addition the respondent should have at least noted that the appellant has always co-operated with the police, admitted his offence, and that he has no criminal record either before or since the caution. 

35. It is our finding that the respondent is plainly wrong to say there are no mitigating factors and has quite plainly failed to evaluate the mitigating factors which were evidenced when he made his decision. 

36. In terms of risk, the respondent has altogether failed to take any objective steps to assess this.  His witness did not even know if the respondent has issued any guidelines on assessing risk.  If no guidelines exist, it is a matter of concern.  If they exist and were not applied it is also a matter of concern.  Mr Gleaves did not appear to have any knowledge of factors that are taken into account when risk is assessed – the type of factors which, for example, probation officers or the Parole Board routinely use.  He was unable to provide any justification for his assessment of the risk as “medium”.  Indeed he was unable to explain what this term means.  Where matters of public confidence are concerned, the public is entitled to know that risk is carefully assessed before decisions are made.  Mr Greaves was content to refer to the fact of the caution as itself demonstrating risk..  But it is axiomatic that a person in Mr TC’s situation will have either a caution or a conviction.  That is how section 142 and the Regulations work.  We were interested to note that Mr Greaves was unaware of any instances when a direction had been revoked.  This is perhaps not surprising if the fact of a caution or conviction is sufficient evidence for his team to recommend to the Secretary of State that there should be no revocation. 

37. We were unable, as the respondent asks us to do, to discount the evidence of Ms Taylor.  She was put forward as an expert in her field; she claims thirty years experience in risk assessment.  She explained the basis of her conclusions that the risk posed by this appellant is very low.  She took into account that his behaviour was not predatory; there was no grooming.  We do not agree that the weight of her conclusions as to risk is undermined by her failure to explore victim empathy.  She is an expert who used methods which were clearly explained.  Her conclusions might indeed have been strengthened, or perhaps altered, had she explored victim empathy: it was open the respondent to tender evidence from his own expert which could have shown us that such an approach was fundamentally flawed.  He chose not to, and we do not see it as self-evident.  We also agree that references to research could have strengthened her opinions, but that is not conclusive. 

38. It is our very clear finding from the explanation given by Mr Greaves and the response to this appeal that the respondent failed to evaluate risk when asked to consider the appellant’s representations, and was content to treat the fact of auto-inclusion as justification for maintaining the direction.  What is called for, as described in the case of FH v SSE above, is an appropriate and proportionate decision.  There is no evidence of the evidence and representations being weighed in that manner, or indeed in anything other than a perfunctory manner.

39. We are reminded, quite rightly, of the need for the public to have confidence in people who are considered suitable to work with young people.  The respondent, in his response, referred to the expectation in previous Tribunal decisions that such people should be “beyond reproach” (CN v Secretary of State [2004 398.PC and [2004] 399.PVA).  In the case of Catherine Osliffe v Secretary of State (2005) 550.PT, cited with approval in Secretary of State for Children, Schools and Families v BP [2009] EWHC 866 (Admin), the Tribunal talked of the public’s right “to expect that anyone involved with the teaching of young children or young persons should have the highest standards of moral integrity and a conviction for such a serious offence cannot be ignored.”

40. However we note that if applied literally, there would be no scope for the Secretary of State ever to revoke a direction.  By definition a person with a caution is not beyond reproach.  There must, therefore, be scope for weighing all of the factors, and concluding that perhaps a “beyond reproach” cannot stand as the ultimate legal test.  We are encouraged to find an element of flexibility in the guidance in BP, which allows for a consideration of the views of ordinary sensible people when looking at the question of public confidence.  We also note that CN was concerned with an offence of manslaughter.  That was what was meant by “such a serous offence”.  We do not wish to imply that sex by an 18 year old with a 14 year old is not serious, but we do not see it falling within the same bracket as manslaughter.

41. We consider that it is essential to consider and weigh the individual factors in this case, in so far as evidence relating to those factors was available to the respondent when the decision under appeal was made.  We note, for example, that the respondent was in possession of a letter from the father of young girls, the sister of whom was, as he put it, courting Mr TC at the time of the decision not to revoke.  This man said he was confident in leaving Mr TC to look after his young daughters.  It is not impossible that he is wrong to do so, but it is not irrelevant to take into account this perspective in asking ourselves how confidence would weighed by the ordinary sensible public.  The appellant was entitled to assume that the respondent would weigh this evidence and not ignore it.  We find the fact that he is trusted in this way to have relevance.

42. All the information we have considered was available to the Secretary of State.  We find that he failed to weigh it and failed to assess risk.  His procedures, as described to us, are unlikely to inspire public confidence

Tribunal’s Conclusions

43. We have considered the written and oral evidence very carefully.  The public is entitled to a  very careful weighing of the matters affecting risk, perception of risk, and public confidence.  We have considered whether this decision was, in light of the information before the Secretary of State, appropriate and proportionate.  We take note of the inadequate assessment of risk and the failure to take proper or any account of mitigating factors.  We have carefully considered the submissions of the respondent. 

44. We conclude that the neither risk nor public confidence required at the date of decision that the appellant continue to be subject to the direction under section 142 Education Act 2002.

Order

45. The respondent is to remove the appellant’s name from the list, maintained under section 142 of the Education Act 2002, of persons who are unsuitable to work with children.

First-tier Tribunal Judge Brayne

 21.2.2011