C/1417/2009

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

ON AN APPEAL

 

Decision and Hearing

 

1. This appeal by the Secretary of State succeeds. In accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal (Health, Education and Social Care Chamber) made on 6^th February 2009 (after a hearing on 5^th September 2007 and 1^st December 2008) under reference (2006 or 2007) 960 PT, allowing an appeal in respect of a direction by the Secretary of State to bar A (the respondent teacher) from work to which section 142 of the Education Act 2002 applies. I refer the matter to a completely differently constituted tribunal in the Health, Education and Social Care Chamber of the First-tier Tribunal for a fresh hearing and decision in accordance with the directions given below.

 

2. As I have set aside the decision of the First-tier Tribunal, the effect is to restore the Direction made by the Secretary of State, until the First-tier Tribunal decides the appeal. One effect of this is that, until such decision by the First-tier Tribunal, A remains barred from work to which section 142 of the Education Act 2002 applies.

 

3. I held an oral hearing of this appeal on 6^th July 2010. The Secretary of State was represented by Ms Kate Olley of counsel, instructed by the Treasury Solicitor. The respondent teacher attended in person and was represented by Mr Mark Mullins of counsel, instructed by the National Union of Teachers. I am grateful to them for their assistance.

 

Background and Procedure

 

4. A was born in about 1960. He obtained a diploma in graphic design and wanted to go into higher education. At this time he had been living with a woman and her two children for about five years, and because of disagreements over his ambitions, and other factors, the relationship began to break down. On an occasion in about 1984 he and the woman began physically fighting. In his own words (page 144 of the original tribunal bundle at paragraph 21):

 

“I retaliated. I got hold of her and gave her a good hiding – smacked her, pushed her to the ground and kicked her …”.

 

5. This account is slightly misquoted at paragraph 20 of the decision of the First-tier Tribunal. The incident resulted in a prosecution and A was convicted of assault occasioning actual bodily harm on the woman, and was also convicted of inflicting grievous bodily harm on her 11 year old son by wounding him with a belt. It appears that he continues to deny the allegation in respect of the son but has stated that there were bruises on the boy’s face and shoulders from having fallen down the stairs. It appears that he was conditionally discharged for 12 months, fined and bound over – but I have not seen any memorandum or certificate of conviction.

6. A did not live with the woman after this incident. He went on to take A levels, a degree and a PGCE and began teaching for a living. In 1991 A was accused of indecent assault by a ten year old boy B, one of his pupils. The matter was investigated but the Crown Prosecution Service decided not to prosecute in the absence of corroboration.

 

7. On 20^th December 2002 the police were informed by a parent of a ten year old boy C, one of A’s pupils at a different school at which he was now teaching, that A had sexually abused C. Details of the allegations appear in the papers but one feature was that A had visited C’s home on christmas day 2002, apparently contrary to school policy. On 6^th January 2003 A was suspended from his teaching post. (It also emerged that A had visited other families during school holidays notwithstanding instructions that such unaccompanied visits should not take place).

 

8. Following this allegation the police reopened the case in respect of boy B, then in his early 20s, and took a statement from him on 11^th July 2003 in which he maintained the 1991 allegations.

 

9. A was prosecuted on three charges of indecent assault on a boy under the age of 14, but on 14^th October 2003 was found not guilty at the Crown Court. A’s recollection is that the judge did not even let the case go to the jury but he has no legal training and of course the criminal standard of proof is much higher then the standard of proof required in respect of non-criminal proceedings. I have not seen the indictment and it appears that nobody in the present proceedings has seen a transcript of the trial. Other pending charges were not proceeded with.

 

10. The matter came to the attention of the Secretary of State and on 10^th December 2006 the Secretary of State made a direction under section 142 of the Education Act 2002 that A may not carry out any work to which the section applies (in summary, involvement in education, or contact with children requested or consented to by an employer). This direction was based on grounds in section 142(4)(b): “on the grounds that the person is unsuitable to work with children”. For reasons explained by Upper Tribunal Judge Jacobs in AJ [C/2524/2009] at paragraph 4 this procedure is known as “placing a teacher on list 99”.

 

11. On 2^nd March 2007 A appealed to the Care Standards Tribunal against that direction by the Secretary of State and the tribunal began hearing the matter on 5^th September 2007. It gave a direction that certain advice given to the Secretary of State before the direction had been made be disclosed. The matter was then delayed while the Secretary of State challenged that direction by way of judicial review. The disclosure direction was eventually quashed by the Administrative Court on 9^th May 2008. On 3^rd November 2008 the jurisdiction of the Care Standards Tribunal was transferred to the Health, Education and Social Care Chamber of the First-tier Tribunal, but transitional provisions enabled the same tribunal to continue with the matter in a new guise.

 

12. The First-tier Tribunal resumed the hearing on 1^st December 2008. On 6^th February 2009 it allowed A’s appeal against the direction that had been made by the Secretary of State, On 5^th March 2009 the Secretary of State applied to the First-tier Tribunal for permission to appeal against the decision to the Upper Tribunal. On 14^th May 2009 the presiding judge of the First-tier Tribunal panel refused permission to appeal and the Secretary of State made a further application direct to the Upper Tribunal. On 25^th June 2009 Upper Tribunal Judge Jacobs refused permission to appeal on consideration of the papers. The Secretary of State renewed the application and on 3^rd December 2009 I gave the Secretary of State permission to appeal, after an oral hearing of the application on 2^nd December 2009 (at which Ms Olley appeared but Mr Mullins did not).

 

The Secretary of State’s Powers

 

13. So far as is relevant to this case, section 142 of the Education Act 2002 provides as follows:

 

142(1) The Secretary of State, in relation to England …, may direct that a person –

(a)      may not carry out work to which this section applies;

(b)      may carry out work to which this section applies only in circumstances specified in a direction;

(c)      may carry out work to which this section applies only if conditions specified in the direction are satisfied

 

(2) This section applies to –

(a)   providing education at a school;

(b)  providing education at a further education institution

(c)   providing education under a contract of employment or for services where the other party to the contract is a local education authority or a person exercising a function relating to the provision of education on behalf of a local education authority, and

(d)  taking part in the management of an independent school

 

…

 

(4) A direction under this section may be given in respect of a person only –

(a) on the grounds that the person is included (otherwise than provisionally) in the list kept under section 1 of the Protection of Children Act 1999 (list of individuals considered unsuitable to work with children),

(b) on the grounds that the person is unsuitable to work with children,

(c) on grounds relating to the person’s misconduct,

(d) on grounds relating to a person’s health, or

…

Breach of a section 142 direction is a criminal offence carrying a possible sentence of imprisonment.

 

The Right of Appeal

 

14. Section 144(1) of the 2002 Act provides as follows:

 

144(1) A person in respect of whom a direction has been given under section 142 may appeal to the First-tier Tribunal

(a) against the decision to give the direction;

(b) against a decision not to vary or revoke the direction.

 

Information and Evidence

 

15. Regulation 13(2) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 provides:

 

13(2) The Tribunal shall not in exercising its power 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;

 

With effect from 3^rd November 2008 the word Tribunal was replaced by the words “First-tier Tribunal” (SI 2008 No 2683 r 236).

 

16. Rule 15(2)(a) of The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 provides:

 

15 (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;

 

The Nature of the Appeal

 

17. When giving permission to appeal I raised the issue of the nature of the appeal in light of the following statement by the Care Standards Tribunal in FH – v Secretary of State [2005] 0552 PT 7^th February 2006:

 

Thus, the Tribunal is, in this instance, confined to conducting 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.”

 

18. The same approach seems to have been followed in other decisions by that tribunal. Of course, any statement of law made by the Care Standards Tribunal (or the First-tier Tribunal) is not binding on the Upper Tribunal but Ms Olley had pointed out that the above statement had been approved by Lord Justice Dyson sitting in the Administrative Court in that Court’s consideration of the earlier stages of the present case ([2008] EWHC 1199 (Admin) 9^th May 2008).

 

19. I am not so sure that Lord Justice Dyson was putting the case as strongly as the Care Standards Tribunal had put it or was explicitly agreeing that the tribunal was not “empowered to rehear the case or to determine the primary facts”. It was certainly not necessary to the Administrative Court’s decision to go that far. The matter before the Administrative Court concerned the disclosure of certain advice received by the Secretary of State and the decision must be seen in that context. What Lord Justice Dyson said (at paragraph 23) was:

 

“23. I accept that explanation by the Tribunal. It follows that the particular views of officials or List 99 panel members are not relevant to the Tribunal’s task. Nor indeed are the views of the Secretary of State determinative of the question. 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 view was reasonable. It is not necessary for that purpose that the Tribunal should see the confidential advice that was given to the Secretary of State. It follows that the Tribunal had to decide whether the Secretary of State had sufficient evidence on which to base a determination that the specified ground existed. That involved a consideration and appraisal of the evidence untrammelled by the advice of the Department’s officials and/or independent expert”.

 

20. Exactly the same could have been said if the words “is not empowered to re-hear the case or to determine the primary facts” had not appeared in FH.

 

21. In Secretary of State v Kevin Philliskirk [2008] EWHC 2838 (Admin) 31^st October 2008 in the Administrative Court Mr Justice Collins was considering an appeal by the Secretary of State against a decision of the Care Standards Tribunal to allow an appeal against the decision of the Secretary of State to make a section 142 direction on grounds of misconduct. Commenting on the above statement by Lord Justice Dyson he said (at paragraph 19):

 

“19. I confess that I have some slight concern about the language there used. Of course, it is right that the Tribunal is reviewing the Secretary of State’s decision, and clearly if it was not a reasonable decision then the Tribunal will interfere. But, as it seems to me, the Tribunal has its own independent judgment to exercise. It looks at the material that was before the Secretary of State and it decides, on that material, whether in its judgment the relevant prohibition or the relevant sanction was or was not one which ought to have been, in its view, imposed. It may be that one can say, if one is talking in strict judicial review terms, that the decision of the Secretary of State was reasonable in the sense that it is one which was open to him. But that would mean, if that is the narrow basis upon which the Tribunal approaches the matter, that it is disabled from exercising its own judgment. It is the exercise of its own judgment that is important. But, as the regulation makes clear, that judgment may be exercised upon and only upon the material that was before the Secretary of State. So with that slight qualification, I accept the approach that Dyson LJ has indicated based upon the decision of the Tribunal in FH.”

 

22. I suspect that this was more than a “slight” qualification. and it seems to me that some of the comments on this issue have really run together the question of what material the First-tier Tribunal can consider and question of whether it can make its own findings, although these are conceptually and legally two different questions.

For example, in the case of O’H [2006] 858 PT 21^st August 2007 the Care Standards Tribunal stated at paragraphs 38 and 39:

 

“38. Regulation 13(2) provides that the Tribunal shall not, in exercising its powers under regulation 13, consider any information relevant to the decision to give a direction which the Secretary of State did not have at the time the decision was made …

 

39. Thus the Tribunal is, in this instance, confined to conducting 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.”

 

23. The same wording appears in paragraphs 39 and 40 of the tribunal’s decision in JA [2007] 1010 PT 1^st October 2007 and paragraphs 18 and 19 of the tribunal’s decision in KP [2007] 1115 PT 20^th May 2008 (both presided over by the same judge as O’H).

 

24. In my view this is a non-sequitur. The first two sentences of paragraph 39 simply do not follow as a matter of logic from what is said in paragraph 38. It may be the case that the information, evidence or material that the tribunal can take into account is limited (as it is in nearly all judicial decisions by rules of evidence and procedure) but that does not mean that it cannot make its own findings of fact and take a different view from the Secretary of State on what relevant facts have been established on the basis of that information, evidence or material. For example the Social Entitlement Chamber of the First-tier Tribunal is quite used to making social security decisions within the limitations of section 12(2)(c) of the Social Security Act, which prevents the tribunal from taking into account any circumstances not obtaining at the time when the decision appealed against was made. (The same is true of the War Pensions and Armed Forces Compensation Chamber and section 5B(b) of the Pensions Appeal Tribunals Act 1943 as amended with effect from 1^st January 2001.)

 

25. I agree with the following statements in paragraphs 14 and 15 of the Care Standards Tribunal interlocutory decision of 11^th April 2008 in MC [2007] 1193 PT:

 

“14. There is nothing within the Legislative framework that, in my view, restricts the tribunal in the way envisaged by O’H and argued by the Secretary of State. Regulations 12 and 13 set the ground rules for the Appeal, they do not change the nature of an Appeal read in its common context, and as applied by the Tribunal in all its other jurisdictions, to that of a review.

 

15. Thus in my view a Tribunal is entitled to hear evidence in respect of the information that was available to he Secretary of State and determine whether at the time the matter was considered by the Secretary of State, the Appellant falls into one of the grounds specified under section 142(4) and, if so, whether a direction should be made under section 142(1). The Tribunal is entitled to make its own decision on the former and exercise its own discretion on the latter. It is after all an expert Tribunal and as has been emphasised in many reported decisions, cases that look strong on paper can alter considerably once oral evidence has been heard.”

 

26. I also agree with the following passage in paragraph 14 of the decision of the Care Standards Tribunal in SW [2008] 1307 PT, presided over by Mark Rowland (than also a Social Security Commissioner and now an Upper Tribunal Judge) doubted the correctness of the above approach. In paragraph 14 the Tribunal stated:

 

“Regulation 12 clearly confers a right of appeal to a tribunal and not merely a right to apply for a review and therefore, in our view, a tribunal is entitled to rehear the case and, in a case where there is a dispute as to the facts, make findings that are different from those made by the Secretary of State. We find it difficult to reconcile some of the language used by the tribunal in FH and by Dyson LJ in JN with the concept of an appeal. On an appeal, the issue is not just whether the Secretary of State’s decision was reasonable in the sense that it was one he was entitled to take but also whether it was, in the tribunal’s judgment, the right decision. There is nothing in the legislation to suggest that the tribunal is not entitled to substitute its own judgment for that of the Secretary of State in those cases where more than one conclusion can properly be reached on any matter. FH may have been a clear enough case where no conclusion other than the Secretary of State’s would have been reasonable. Significantly, it was also a case determined without any oral evidence. JN may also have been a clear case and certainly, on the appeal to the Administrative Court, it appears to have been unnecessary for Dyson LJ to consider the possibility that two views might fairly be taken of the evidence. Moreover, the passage we have set out was strictly speaking unnecessary for his decision. We are satisfied that this tribunal is not confined to carrying out a review.”

 

27. This approach is also consistent with the decision of a three judge panel of the Upper Tribunal in Ofsted v GM and WM [2009] UKUT 89 (AAC) in relation to the right of appeal against suspension of childminders’ registrations (see paragraph 12), and with my decision in MC [CAF/3558/2008] rejecting an argument made on behalf of the Treasury Solicitor that the Pensions Appeal Tribunal was limited to considering the reasonableness of the Secretary of State’s decision rather than considering the matter afresh and making its own findings (paragraphs 10 to 16, and see the authorities cited there).

 

28. Thus, my conclusion is that, within the limitations of the provisions on what information, evidence or material the tribunal can take into account (see further below) the First-tier Tribunal is under a duty to make its own findings of fact insofar as the relevant and necessary facts are disputed, and on the basis of those findings and the agreed facts, to make its own judgment in respect fo the statutory questions.

 

 

 

 

Admissible Evidence

 

29. I have set out above the provisions of Regulation 13(2) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 and rule 15(2)(a) of The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008.

 

30. When giving permission to appeal I queried whether there was a conflict between the two set of rules, whether there a difference between “information” in the 2003 regulations and “evidence” in the 2008 rules and whether for example the First-tier Tribunal could or should have called for a transcript of the Crown Court trial or other relevant material. Could it be argued that in the present case information about the 2002 trial was available to the Secretary of State and that the tribunal was entitled to call for evidence, such as a transcript, relating to that information?

 

31. The authorities all go in the same direction on the general issue and there is no significant dispute between the parties on this point. I endorse what was said in SW [2008] 1307 PT (in paragraphs 15 and 16):

 

“15. The only material limitation on the powers of the tribunal is that imposed by regulations 12(2) and 13(2) … which in our judgment do not have the effect that the evidence before the tribunal is necessarily the same as that before the Secretary of State … 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 the tribunal does; it is not to prevent a tribunal from receiving more detailed evidence about an issue raised in information that has previously been before the Secretary of State. As the Secretary of State does not usually conduct interviews and even less often provides a teacher with an effective means of challenging evidence provided by others, there would be a denial of justice in many cases if there could not be a proper hearing before a tribunal, with oral evidence being given and cross-examination allowed. Inevitable, such a process can lead to more detailed evidence being available to the tribunal than was available to the Secretary of State and, indeed, it can lead to the conclusion that “information” provided to the Secretary of State was false. However, regulations 12(2) and 13(2) may require that any challenge to information provided to the Secretary of State … must be made by was of contrary information being supplied by the person in respect of whom a direction may be made before the Secretary of State makes the relevant decision. Then, a finding that some or all of the information supplied … was false would not generally be new information.

 

16. … it could not have been the intention of the legislature that a tribunal could never have regard to new evidence … it is a matter of judgment whether more detailed evidence received at a hearing before a tribunal amounts to new information for the purposes of regulation 13(2)(a). In practice a tribunal will no doubt be influenced by whether or not the Secretary of State considers that the evidence raises a new issue and indicates that he wishes the tribunal to ignore that part of the evidence so that, if the appeal is dismissed on the evidence previously before the Secretary of State, he can consider the new evidence himself and decide whether to revoke or vary the direction …”.

32. This approach was also endorsed by His Honour Judge David Pearl (then Principal Judge, Care Standards in the First-tier Tribunal and now a Judge of the Administrative Appeals Chamber of the Upper Tribunal) in PAC v Secretary of State [Preliminary Issue] [2209] UKFTT B1 (HESC) (30^th March 2009). He also ruled that the position under regulation 13(2)(a) of the 2003 regulations had not been changed by rule 15(2)(a) of the 2008 rules, which “sets out a discretionary basis for the admission in evidence in cases before the First-tier Tribunal” and that “ a general provision does not derogate from a special one” (paragraph 16). I agree with these statements. I also agree with what he stated in paragraph 13:

 

“13. It is of course for the Tribunal to determine whether a direction was an appropriate or proportionate response in all the circumstances. The Tribunal has to exercise its own judgment 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 to the Secretary of State. The Tribunal is entitled to consider this evidence when reaching its decision … 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”.

 

33. In that case the Secretary of State had given a direction in respect of a teacher, having had regard to a report from an expert. The teacher had commented on the report and the Secretary of State also had the same expert’s response to those comments. Before the First-tier Tribunal the teacher sought to produce a report from a different expert and also character evidence. This material had not been made available to the Secretary of State before the direction had been made. Judge Pearl excluded the new report and the character evidence from consideration by the tribunal. That was a decision made on the facts of that particular case.

 

34. I raised the issue in the present case in relation to the transcript of the 2003 trial. This is because the Secretary of State was clearly influenced by the allegations that led to the trial, while the teacher respondent has sought to rely on what he says happened at the trial (but see paragraph 9 above). The First-tier Tribunal also considered it unfortunate that the transcript had not been made available (paragraph 60 of its decision). Copies of the indictment and/or the transcript would clearly be relevant materials. It seems to me that if either of the parties wishes to rely on what happened at the trial it will be up to that party to seek to put these materials in evidence. I do not take the view that this would amount to new information. It would be detailed evidence of information which was before the Secretary of State. However, the interest of justice and fair procedure would require that both parties had a full opportunity to consider this information for a reasonable period prior to the new hearing before the First-tier Tribunal. If this material is not available, it is difficult to see how the First-tier Tribunal will be able to rely on assertions in relation to the trial, unless they are agreed by both parties.

 

35. If the First-tier Tribunal of its own motion takes the view that the interests of justice require that certain evidence of the information that was available to the Secretary of State be considered, it may so direct, and that would apply to the indictment and/or the transcript of the 2003 trial in the present case. What it cannot do is to consider new information that was never before the Secretary of State at all.

 

The First-tier Tribunal’s Reasons

 

36. The statutory issue to be decided in this case is specified in section 142(4)(d) of the Education Act 2002: is A “unsuitable to work with children”? The tribunal concluded in the final paragraph of its reasoning that the Secretary of State’s direction was not proportionate. It is well established that the question of whether a teacher should be the subject of a direction in these circumstances has to be viewed in the context of restricting a person’s employment for the purposes of both the protection of children and the maintenance of public confidence in the education system.

 

37. Mr Mullins supports the decision of the First-tier Tribunal in the present case. He argues that the tribunal got to grips with the statutory issue, exercised its judgment in the way that it was entitled to do, properly considered the facts, did not fail to consider how its findings of fact fitted in with the statutory issue, and properly took account of the purposes of the protection of children and the maintenance of public confidence. Its task was to deal with the case before it “not to write a text on what might not make a person unsuitable (still less suitable)”.

 

38. However, I agree with a number of criticisms of the First-tier Tribunal’s reasons made on behalf of the Secretary of State.

39. In paragraph 56 of its decision the Tribunal commented on the 1984 event; “We do however take into account that this was a one-off event and was in the context of a family relationship”. The tribunal was also influenced by the fact that this incident involved no “sexual misdemeanours” on A’s part. It is not clear why the facts that this was in the context of a family relationship and was non-sexual in nature makes a difference to whether a particular person is unsuitable to work with children. Mr Mullins suggests that “On their own the 1984 events could never have justified a direction”. I do not accept this as an accurate statement of the position. How does Mr Mullins think the public would react to a teacher who, even as a young man, had given his partner a “good kicking” in front of her young son and then proceeded to attack the son? Also, as it happens the 1984 events were not “on their own”.

 

40. In paragraph 67 of its decision the First-tier Tribunal indicated that it was influenced by the fact that the 1991 allegations were not thought to be sufficiently significant for A to be placed on list 99 at that time. However, the Secretary of State was not informed of the allegations at the time, and it might be thought that their significance was enhanced by there being similar allegations in 2002.

 

41. In the same paragraph the tribunal stated: “we consider that little weight should be placed on the fact that that the allegations were of a similar nature”. I agree with Ms Olley that this did not conform to the approach of the Administrative Court in the case of J [2009] EWHC 524 (Admin). Mr Justice Pitchford said (paragraphs 36 and 37):

 

“36. … it is common ground that the evidence of each complainant was, subject to the judgment of the tribunal, of supporting the others. In ordinary language, the Secretary of State was entitled to ask the tribunal what was the likelihood of three separate teenagers making similar but untrue allegations of sexual misconduct on separate and unconnected occasions …

 

37. … In assessing the probative force of the evidence, the tribunal of fact will need to consider at least three things. Firstly, the risk of collaboration or contamination between the witnesses. If there was such a risk, then the probative force of the observation that they make similar complaints may be lost. Secondly, the degree of similarity between the allegations and the period of time over which those allegations were made. The more similar the allegations made by individuals who had not collaborated, the more improbable it is that those allegations are untrue. Thirdly, any factors which may affect the credibility and reliability of the complainant. It may be that a witness is so unreliable that nothing said by that witness should be treated as probative of anything.”

 

42. It is not necessary to address other issues raised by Ms Olley. I am satisfied that the above defects in reasoning mean that the decision of the First-tier Tribunal involved the making of an error of law and that is why this appeal by the Secretary of State succeeds.

 

 

H. Levenson

Judge of the Upper Tribunal

20^th July 2010