IN THE UPPER TRIBUNAL Case No  HC/1016/2010

ADMINISTRATIVE APPEALS CHAMBER

 

Before: His Honour Judge David Pearl sitting as a Judge of the Upper Tribunal

 

Attendances:

 

For the Applicant: The Applicant in person (accompanied by the Applicant’s son)

 

For the Respondent: Ms S Broadfoot of Counsel instructed by Ms A Lewenstein, Treasury Solicitor.

 

Decision:   Permission to appeal is refused.

 

 

 

REASONS FOR DECISION

 

 

 

 

Background

 

1. The Applicant in this case seeks permission from the Upper Tribunal to appeal the decision of the First-tier Tribunal (Health, Education and Social Care) dated 6^th July 2009.
2. I can summarise the factual background to this application in the following paragraphs, obtained from a perusal of the papers that were before the First-tier Tribunal, all of which I have seen.
3. The Applicant came to the UK from Bulgaria in 2000 and he obtained work in care homes. He was employed by Orbit Housing Association as from 31^st October 2003, and on the evening of 11^th/12^th June 2007 he was working as a Night Care Assistant on the night shift at Lammas House, a residential care home in Coventry.
4. It would seem that an incident occurred that evening involving a resident in the home (JR). JR had suffered a stroke and he had complex health needs. He was doubly incontinent, he had restricted mobility and problems with communication. The First-tier Tribunal reported that he was staying at the home for a period of time to provide respite care for his wife.
5. JR was accommodated on the ground floor, and it was a requirement of his care plan that JR be checked every two hours.
6. The Applicant was on duty on the evening of 11^th June 2007 and overnight until early morning the following day, together with another employee. The Applicant was responsible for the residents accommodated on the ground floor, including JR. The other employee was responsible for the residents on the other floors of the building.
7. It is accepted evidence that when the day staff checked JR, he was heavily soiled, and he was in a distressed state.
8. Paragraph 11 of the First-tier Tribunal’s decision sets out what then happened: “The Applicant was subject to a disciplinary process which found that he had been in serious dereliction of his duty and exhibited unprofessional conduct in failing to check JR properly during the course of the night so as to notice that he had soiled himself. During the course of the disciplinary process the Applicant’s approach was that he had done nothing wrong, that it was enough for him to have confirmed that JR was asleep and that it would have been wrong that he checked more closely because of a lack of consent.”
9. He was dismissed on 9^th August 2007 for gross misconduct. He made an unsuccessful claim for unfair dismissal, the decision of the Employment Tribunal being dated 8^th May 2008.
10. On the 23^rd October 2007, Orbit Housing Association referred the Applicant to the Department of Health requesting that the Secretary of State give consideration to the Applicant being placed on the POVA List.
11. By letter dated 30^th October 2007, the Manager of the Protection of Vulnerable Adults List wrote to the Applicant to inform him that in the light of the information received from Orbit Housing Association, a decision had been made by the Secretary of State for Health to provisionally include him on the POVA list. In addition, based on the information the Secretary of State had received relating to his inclusion on the POVA list, a decision was made to provisionally include his name on the POCA list.
12. The Applicant submitted observations as to why he should not be confirmed on the two lists in a letter dated 3^rd December 2007. These written observations were sent by the Manager POVA to Orbit Housing Association for its comments. The Manager sought a Response from Orbit Housing Association by 27^th December 2007 at the latest. Orbit Housing Association replied by letter, which would appear to have been received by the Manager POVA on 19^th December 2007.
13. There then followed further correspondence between the Manager POVA, and the Applicant, and the Manager POVA and Orbit Housing Association. By letter dated 21^st December 2007, a copy of the Manager POVA’s Response was sent to the Applicant for “your comments on these observations”. The Applicant sent a reply by letter dated 20^th February 2008. This letter was then sent by the Manager POVA to Orbit Housing Association on 21^st February 2008 “inviting comments on these observations.” No reply was received and a chasing letter was sent to Orbit Housing Association on 18^th March 2008 seeking a reply by 26^th March 2008. A Reply was sent by Orbit Housing Association which is dated 29^th February 2008, but stamped as having been received by the Manager POVA on 25^th March 2008.
14. The file provides no explanation as to what further steps were taken by the Manager POVA to reach a conclusion as to whether to confirm or not to confirm the Applicant’s name on the POVA and POCA lists. This case illustrates the mischief of the provisional listing scheme so clearly identified by the House of Lords in R (on the application of Wright and others) v Secretary of State for Health [2009] UKHL 3.
15. Solicitors acting for the Applicant by letter dated 28^th November 2008 addressed to the First-tier Tribunal, applied under Section 86(2) of the Care Standards Act 2000 for the Tribunal to grant permission for the issue to be taken out of the hands of the Secretary of State and for the Tribunal to make the decision regarding confirmation.
16. Section 86(2) states “subject to subsection (5) [not relevant in this case], an individual who has been provisionally included for a period of more than nine months in the list kept by the Secretary of State under s 81 may, with the leave of the tribunal, have the issue of his inclusion in the list determined by the Tribunal instead of by the Secretary of State.”
17. He had been placed on the provisional list on 30^th October 2007 and in consequence, the Applicant was entitled to seek permission for the matter of his inclusion on the list to be determined by the Tribunal.
18. The Secretaries of State submitted a Response to the Application and a hearing was held by me on 19^th February 2009 by way of a telephone conference to consider Directions. I dealt with this Telephone Direction and a subsequent Amendment to the Directions in my capacity, at that time, as the Principal Judge of the First-tier Tribunal (Health Education and Social Care Chamber). I have had no other dealings with this case at the First-tier level, and neither the Applicant nor the Respondent has raised an objection to my dealing with the present Application.
19. The application for leave was considered at the Directions hearing, and according to paragraph 2 of the Directions, the Respondent (represented by Mr R Smith of Counsel) did not oppose that leave should be granted. Accordingly, leave was granted, and certain procedural Directions were made, amended by consent by Directions dated 6^th April 2009. Both the Applicant and the Respondent were given liberty if so advised to instruct an Expert.

 

 

 

 

 

 

 

The hearing before the First-tier Tribunal

 

 

20. The hearing took place over three days on 16^th, 17^th and 18^th June 2009. The applicant was represented by a Solicitor, and an interpreter was in attendance. The Respondent was represented by Mr R Smith of Counsel. Three witnesses were called by the Respondent; namely, the Regional Manager of Orbit Housing Association, the current Manager of the Home, and the Team Leader of the Home (Mrs Moore). The Applicant gave evidence on his own behalf. The Tribunal considered also a large volume of documentary evidence (all of which I have had the opportunity to see). In brief, these included witness statements of the three witnesses called by the Respondent, documents relating to the Employment Tribunal proceedings, documents relating to the Disciplinary Proceedings, witness statements from the Applicant and from a Ms D, an expert report from a Ms Bayram, Diagrams of Room 6 (the one occupied by JR), certain photographs taken of JR on the morning of 12^th June 2007, and official publications, for example those  relating to Management of Faecal Incontinence in Adults.
21. Ms Bayram’s Report had been prepared on the instructions of the Applicant, but at the hearing before the First-tier Tribunal the Applicant objected to its inclusion in the Tribunal’s papers as he was no longer relying on it. The Tribunal dealt with this application as follows: “Bearing in mind the direction and the disclosure of the report to the Respondents we decided that it should be available to the Tribunal. We read the report. We were mindful that the Applicant was not relying on it and did not call the expert as a witness.”
22.  This was an appropriate exercise of the Tribunal’s case management powers under Rule 15 of the Tribunal Rules. In any event, the Tribunal did not refer Ms Bayram’s Report in its determination.
23. The First-tier Tribunal correctly identifies that the issues that it had to determine were identical to those on appeal against inclusion on the List under s 86(3) Care Standards Act 2000, namely; (a) whether the Applicant was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult; and (b) whether the Applicant is unsuitable to work with vulnerable adults or children.
24. The Tribunal also correctly identifies that the POCA listing was secondary to the POVA listing and that the sole question with regard to the POCA listing is whether he is unsuitable to work with children as provided by s2C of the Protection of Children Act 1999.
25. Paragraph 21 of the Tribunal’s decision sets out the correct law on both the burden of proof and the standard of proof which the Tribunal should apply.
26. The Tribunal makes findings that the Applicant failed to conduct proper checks and left JR in a soiled state and that accordingly he was guilty of misconduct which harmed a vulnerable adult.
27. As to unsuitability, the Tribunal applies the approach developed by the case law of the Care Standards Tribunal (eg CN [2004] 398.PC; MB [2005] PC 512 approved by the High Court in BP [2009] EWHC 866). The Tribunal quoted CN:

“We cannot underestimate the importance we attach to public confidence. When the Tribunal considers the question of unsuitability, it must look at the factual situation in the widest possible context…it is our view that it is the clear intention of Parliament that the language of the Act requires us to take a broad view having regard to the degree of risk posed by the Appellant, but also to acknowledge that the public at large and those who entrust their children into the hands of professionals have a right to expect, indeed to demand, that such people who are placed in such important positions of trust working with children ‘in a child care position’ are beyond reproach.”

28. The First-tier Tribunal states, correctly, that the same considerations apply to working with vulnerable adults as with children.
29. The Tribunal makes findings, applying the appropriate legal test, that the Applicant was unsuitable to work both with adults and with children. The Tribunal concludes:

“We accept that, in the light of the evidence in this case…public confidence would be damaged by the Applicant being held to be suitable to work with vulnerable adults. We also accept that the same would be true of the suggestion that he be allowed to work with children”.

30. Accordingly, the First-tier Tribunal confirms his name on both the POCA and POVA lists.

 

 

 

 

 

The Applicant’s Appeal from the Decision of the First-tier Tribunal

 

 

31. The Applicant appealed the decision of the First Tier Tribunal. The Application for Permission to Appeal is dated 7^th August 2010 and is accompanied by Grounds of Appeal. 12 Grounds are submitted, which in summary are as follows:
• The Respondent ought to have erred on the side of caution as to the Respondent witnesses’ evidence (especially that of Mrs Moore);
• The Tribunal failed to attach weight to the Applicant’s evidence that given his alleged last check was at 6am and his shift ceased at 8am, a reasonable possibility remains that JR could have soiled himself after 8am;
• The Tribunal had failed to properly consider the Applicant’s evidence regarding ethical consent policy, and that consent for pictures ought to have been in writing;
• The Tribunal failed to attach weight to the Applicant’s submission that a discreet check infringes a person’s human rights without a proper and professional consent policy in place;
• The Tribunal was influenced in a negative way towards the Applicant because of the freely admitted statements that management did not like him;
• The Tribunal should not have stated that he was the senior on duty on the night in question;
• The Tribunal were wrong in stating that the Applicant told the Tribunal that there was an extra check at 7.00am;
• The Tribunal failed to attach weight to his evidence that the wrist watch was altered;
• Biased and prejudicial opinions held by the Respondent’s witnesses were given more credibility than the Applicant’s evidence;
• The Tribunal failed to attach credible weight to the evidence suggesting inadequacies at Lammas House, in that there were no proper or complete care plans, policies, body maps, daily monitoring routine charts, bowel and urine charts.
32. The Chair of the First-tier Tribunal considered the application under Rules 46, 47 and 49 of the First-tier Tribunal Rules, and she decided, in a Decision which is dated 27^th August 2009, both not to review the decision and to refuse permission to appeal. Unfortunately, and for reasons that are not apparent from the papers before me, this Decision was not sent to the Applicant or to his Solicitor until 22^nd March 2010.
33. It is most unfortunate that an administrative breakdown occurred. In any event an application for permission to appeal dated 19^th April 2010 was faxed to the Upper Tribunal on that date.
34. By letter dated 23^rd April 2010, the Applicant informed the Upper Tribunal that (i) his former representatives are no longer acting for him; and (ii) that as there is an investigation by the Police in relation to the pictures and a few more documents used as evidence, the application for permission to appeal be postponed until the investigation is completed.
35. I conducted a Case Management Hearing on 13^th September 2010, the purpose of which was to consider whether to accede to the request made by the Applicant to extend the period for submitting grounds of appeal, and also to determine whether the application for permission to appeal had been made in time.
36. Ms Broadfoot who appeared on that occasion on behalf of the Respondent stated that she was in no position to oppose the fact that the notice of the refusal of the application for permission to appeal had not been communicated to the Applicant prior to 22^nd March 2009, and accordingly I decided that the application to the Upper Tribunal for permission to appeal was in time.
37. I rejected the application made by the Applicant to stay further consideration of his permission application. He had initially sought this stay pending the result of a police enquiry. This had now been concluded, and I was told that the Police were taking no further action. He has now made a complaint to the Independent Police Complaints Commission, and he asked for the matter to be postponed pending the result of consideration of the matter by the IPCC. I decided that it would not be appropriate to delay proceedings any further. I said, in my Directions dated 13^th September 2010:

“I do not consider that it will be appropriate to delay proceedings any further. Although the initial delay since the hearing was not the responsibility of the Applicant, he has now been in possession of the Refusal of Permission for more than five months. It is not entirely clear in any event whether a determination by the IPCC in the Applicant’s favour would aid the Applicant in arguing that the First-tier Tribunal had made an arguable error of law”.

 

 

 

The oral hearing of the application for permission to appeal

 

 

38. The matter came before me for an oral hearing of the application for permission to appeal on 18^th October 2010. There were two preliminary matters, on the application of the Applicant; namely (i) whether to direct that a photograph be taken of Room 6 in Lammas House; and (ii) whether to admit a bundle of material that was not before the First-tier Tribunal.
39. As to the first matter, I decided not to grant the Applicant’s request. First, such a request would inevitably lead to an adjournment of the proceedings and I was mindful of my obligation under Rule 2 of the Procedure Rules to deal with cases fairly and justly, and this included (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties; and (e) avoiding delay, so far as compatible with proper consideration of the issues. Secondly, in any event, given that I have been told by Ms Broadfoot on instructions that the lay out to Room 6 has now been changed, I am unable to accept that a photograph of Room 6 would help me decide whether the First-tier Tribunal made an arguable error of law.
40. As to the second matter, Ms Broadfoot submitted that it would only be in exceptional circumstances that material not before the First-tier Tribunal should be considered by the Upper Tribunal. Whilst I accept that Ms Broadfoot is correct in her submission as a matter of general principle, I have decided in the exercise of the discretion available to me under Rule 15(2)(a)(ii) [the Upper Tribunal may admit evidence whether or not (ii) the evidence was available to a previous decision maker] to admit the evidence in this application. I am mindful of the obligation I have under Rule 2 to deal with cases justly and fairly. The applicant is a litigant in person, and English is not his first language. I have accordingly looked at and considered the documents that he has asked me to consider.
41. The Applicant’s challenge amounts to a challenge that the decision is perverse, in that 8 specific aspects of the evidence presented to the Tribunal were given undue weight. These are identified as follows
• Incomplete statements
• Modified pictures of the resident with poor quality
• Modified care plans
• A modified handover report
• An incomplete time card, where the original time card disappeared
• An incomplete minutes of supervision Note date 28^th November 2006
• A modified supervision Note with Ms Jackson, where the date was deleted
• An unsigned supervision Note dated 11^th April 2007.
42. In addition, and more specifically the Applicant makes the following five points.
43.  He submits, first, that the Respondent’s witnesses gave false evidence about the “exposition of the resident’s room 6. They tried to delude the Tribunal Panel that the Applicant made the checks from the doorway. Also they said the time recorded on the time card was insufficient for the checks”.
44. He submits, secondly, that he is employed as Night Care Assistant and not as a Senior Night Care Assistant.
45. He refers then to the fact that there should have been a Consent Policy for seeking the consent of the residents, and that there was no adequate care plan in place.
46. He submits, fourth, that the wrist watch was very likely to have been adjusted to suit the Respondent’s evidence, and he points to another watch on the nurse’s uniform which he says shows a different time, namely 11.00am.
47. In conclusion, and fifthly, the Applicant submits that the Tribunal erred in reaching a finding of fact that JR soiled himself during the Applicant’s care, and that the time the incident occurred is wrong. He states that this error of fact amounts to an error of law, and that permission to appeal should be granted.
48. Ms Broadfoot submits that the Applicant’s grounds are largely an attempt to re-argue the points that were not accepted by the First-tier Tribunal and that there is no identifiable error of law in the decision.
49. Ms Broadfoot drew my attention to the well known decision R(Iran) and others v Secretary of State for the Home Department [2005] EWCA Civ 982, where Lord Justice Brooke set out the general propositions as to when a mistake of fact can amount to an identifiable error of law:

 

“Part 3 The jurisdiction to correct errors of law: examples of errors of law commonly encountered

 9… It may be convenient to give a brief summary of the points of law that will most frequently be encountered in practice:

i) Making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");

ii) Failing to give reasons or any adequate reasons for findings on material matters;

iii) Failing to take into account and/or resolve conflicts of fact or opinion on material matters;

iv) Giving weight to immaterial matters;

v) Making a material misdirection of law on any material matter;

vi) Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;

vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.

10. Each of these grounds for detecting an error of law contain the word "material" (or "immaterial"). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.

 

Part 4 Perversity, the failure to give reasons, and proportionality

11. It may be helpful to comment quite briefly on three matters first of all.  It is well known that "perversity" represents a very high hurdle. In Miftari v SSHD [2005] EWCA Civ 481, the whole court agreed that the word meant what it said: it was a demanding concept. The majority of the court (Keene and Maurice Kay LJJ) said that it embraced decisions that were irrational or unreasonable in the Wednesbury sense (even if there was no wilful or conscious departure from the rational), but it also included a finding of fact that was wholly unsupported by the evidence, provided always that this was a finding as to a material matter.

12.We mention this because far too often practitioners use the word "irrational" or "perverse" when these epithets are completely inappropriate. If there is no chance that an appellate tribunal will categorise the matter of which they make complaint as irrational or perverse, they are simply wasting time – and, all too often, the taxpayer's resources – by suggesting that it was.

Part 6 Error of law: unfairness resulting from a mistake of fact

28. The next matter we must address relates to the circumstances in which an appellate body like the IAT, whose primary role during the relevant period was restricted to identifying and correcting errors of law, could entertain an argument to the effect that the outcome in the lower court was unfair as a result of a mistake of fact, and that this constituted an error of law which entitled it to interfere.

29.In E and R v Home Secretary [2004] EWCA Civ 49; [2004] QB 1044 this court was concerned to provide a principled explanation of the reasons why a court whose jurisdiction is limited to the correction of errors of law is occasionally able to intervene, when fairness demands it, when a minister or an inferior body or tribunal has taken a decision on the basis of a foundation of fact which was demonstrably wrong. Carnwath LJ gave at least eight examples in his review of the case law. Contrary to the basis on which the original decision was reached:

(i) There was in fact contemporary documentary evidence of the injuries sustained by a claimant for compensation from the Criminal Injuries Compensation Board (para 45);

(ii) There was in fact, contrary to a minister's belief, adequate school accommodation in a local education authority's area for the pupils to be educated (para 54);

(iii) The land in question had in fact once been part of the Green Belt (para 58);

(iv) The proposed building extension would in fact obstruct a particular aspect (para 58);

(v) The restructuring of a building was in fact viable (para 58);

(vi) A study by a local council did not in fact relate to the inclusion of a particular site within the Green Belt (para 59);

(vii) A critical witness was in fact a member of a totally different political party in Ethiopia to that which he was believed to support (paras 60, 78-79);

(viii) The appellant had in fact been tried and convicted in his absence in his home country and sentenced to ten years' imprisonment, a matter which cast an entirely new light on the risks he faced if he were returned there (paras 60, 87).

30.At para 64 Carnwath LJ said that there was a common feature of all these cases, even where the procedure was adversarial, in that the Secretary of State or the particular statutory authority had a shared interest with both the particular appellant and with any tribunal or other decision-maker that might be involved in the case in ensuring that decisions were taken on the best information and on the correct factual basis. At para 66 he identified asylum law as representing a statutory context in which the parties shared an interest in co-operating to achieve a correct result. He went on to suggest that the ordinary requirements for a finding of unfairness which amounted to an error of law were that:

(i) there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter;

(ii) it must be possible to categorise the relevant fact or evidence as "established" in the sense that it was uncontentious and objectively verifiable;

(iii) the appellant (or his advisers) must not have been responsible for the mistake;

(iv) the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning.

He made it clear that he was not seeking to lay down a precise code.

33. By way of a final summary of the position, Carnwath LJ said in E and R at para 91 that an appeal on a question of law might now be made on the basis of unfairness resulting from "misunderstanding or ignorance of an established and relevant fact" and that the admission of new evidence on such an appeal was subject to Ladd v Marshall principles, which might be departed from in exceptional circumstances where the interests of justice required”.

50. I am mindful also of what Baroness Hale said in Secretary of State for the Home Department v AH (Sudan) and others [2008] 1 AC. She said;

“…this is an expert Tribunal charged with administering a complex area of law in challenging circumstances…They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently.”

51.  I have applied the principles as set out in the above authorities in deciding whether the Applicant has been able to show any arguable error of law in the decision of the First-tier Tribunal. I have been drawn to the inevitable conclusion in this case that he has not been able to demonstrate that there has been an arguable error of law.
52. I agree with Ms Broadfoot’s submission that the grounds, both the Grounds of Appeal made to the first-tier Tribunal and the further submissions made to the Upper Tribunal, both in writing and orally at the hearing, amount to no more than an attempt to reargue the points that were not accepted by the First-tier Tribunal.
53. The Tribunal heard live evidence from Mrs Moore, and it gave clear reasons why it accepted her evidence. The weight that it attached to her evidence is a matter for the First-tier Tribunal. The Tribunal concluded, having heard the evidence, that it was more likely than not that JR soiled himself before the Applicant’s last check. It decided that that was the case, and thus it matters not that JR may have soiled himself after 8 am and therefore after the Applicant had finished his shift.
54. The Tribunal accepted the evidence of the times and duration of the checks as recorded in the printouts of the machine as 1.15am - 4 seconds; 3.03am – 3 seconds, and 6.07 am – 2 seconds. The Tribunal did not believe that he made an extra check at 7.00am. This is a finding of pure fact, and is fully supported by the documentary evidence that it considered.
55. It is suggested that the Nurse who is in attendance in the photograph displays a watch that shows 11.00am. I looked both at a colour photograph and a copy of the photograph that appeared on the Applicant’s son’s computer. It is not clear to me what is the time  displayed on the nurse’s watch. However, this point was not put to Mrs Moore, and therefore it can play no part in the challenge by the Applicant that the Tribunal made an error of law.
56. Carnwath LJ in E and R stated that an error of fact would only constitute unfairness, if amongst other matters:

“it must be possible to categorise the relevant fact or evidence as ‘established’ in the sense that it was uncontentious and objectively verifiable”

57. The issue on the matter of the time that the photograph was taken, of course, is not uncontentious and objectively verifiable.
58. Baroness Hale says in AH (Sudan): “They and they alone are the judges of the facts.” This is particularly relevant in the present context. The Tribunal was able to assess the credibility of the witnesses who appeared before it. It accepted Mrs Moore’s evidence, and, in particular, it rejected any suggestion that she had changed the time on her watch.
59. There is nothing that I can ascertain from a close reading of the Judgement and also by looking at the documents available to the First-tier Tribunal and those submitted to the Upper Tribunal, to suggest that by accepting Mrs Moore’s evidence, and rejecting the Applicant’s evidence, it reached a conclusion which could be considered arguably to be perverse.
60. There is an issue as to whether the Applicant was or was not a Senior Night Care Assistant, and whether he was or was not the senior carer on duty that night. It matters not, because even if the Tribunal were mistaken on this issue, this is not a material mistake in the sense that it must have played a material (not necessarily decisive) part in the Tribunal’s reasoning. It did not play any part in the decision.
61. So far as the issues relating to Consent are concerned, I agree with the points made by the Chair of the First-tier Tribunal when refusing permission to appeal. She said: “All the evidence from the Respondent’s witnesses and from the Applicant’s own expert report agreed that it was not necessary to wake a resident up to gain consent to essential care such as discretely checking an incontinent pad. The Care Plan required two hourly checks of the resident. We accepted that in the case of JR this required the pad to be discretely checked.” The Tribunal was entitled to reach that conclusion.
62. There is a hint of a challenge by the Applicant on the basis that the Tribunal was unduly influenced by evidence from Mrs Moore and the other witnesses who were biased against the Applicant. I have looked carefully at the decision to see whether this can be sustained. It cannot. The Tribunal was clearly aware that the Applicant was unpopular with others, but this played no part at all in its decision. Previous matters of concern regarding the Applicant were mentioned, but only by way of background, and these matters were in no way material to the findings of fact which it made.
63. The Applicant raises in his grounds of appeal, and in his oral submissions, that there were inadequacies in the home at the time of the incident. Whether this were the case or not, I agree with Ms Broadfoot’s submission on this that any inadequacies could not have had an impact on the Applicant’s performance on the night in question, and on its finding that it amounted to misconduct.

 

 

 

 

 

 

Jurisdiction

 

 

64. The final matter which I need to address is the question of jurisdiction. The provisions of the Care Standards Act 2000 and the Protection of Children Act 1999 which I have been considering in this appeal have now of course been superseded by the introduction of the Safeguarding Vulnerable Adults Act 2008. However, there has been a series of Statutory Instruments dealing with transitional arrangements. The most recent is the Safeguarding Vulnerable Groups Act 2006 (Commencement No. 6, Transitional Provisions and Savings (Amendment) (Commencement No. 7) Order 2010 (SI 2010 No. 1101) that was made on 29^th March 2010. Part 3 of that Order puts beyond doubt, and as set out in the Explanatory Note to the Order, the intended consequences of the various Statutory Instruments that where there is an outstanding review, determination or appeal under the old legislation, section 3 of the Safeguarding Vulnerable Groups Act 2006 does not commence in relation to that person until all the reviews, determinations or appeals have been finally determined and any relevant periods during which an appeal under that legislation can be made have expired. In so far as there is any dispute on the matter, I make a finding that the First-tier Tribunal had jurisdiction under the Care Standards Act 2000 to deal with the application brought before it by the Applicant to consider whether his name should be confirmed on the POVA and the POCA lists.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

His Honour Judge David Pearl

Sitting as a Judge of the Upper Tribunal

20^th October 2010