DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to dismiss the appeal by the appellant.

 

The decision of the Independent Safeguarding Authority taken on 25 March 2011 under file reference 10/53458W does not involve an error on a point of law or on any material finding of fact and is confirmed.

 

The Upper Tribunal further DIRECTS that there is to be no publication of any matter likely to lead members of the public directly or indirectly to identify any person who has been involved in the circumstances giving rise to this appeal.

 

This decision and direction are given under section 4(5) of the Safeguarding Vulnerable Groups Act 2006 and rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).

 

 

Before us Mr Hannett of Counsel represented the ISA and RT was represented by her partner, Mr S.

At the start of the hearing we agreed to admit two late items of evidence: a witness statement of Mrs PA dated 29 January 2008 and a witness statement of Mrs ST (a solicitor) dated 26 September 2007.

 

 

REASONS FOR DECISION

 

Introduction

 

1.           By an application notice dated 19 May 2011, RT appeals against the decision of the Respondent, dated 25 March 2011, to include her on the adults’ barred list. We stress from the outset that the Appellant has NOT been placed on the Childrens’ Barred List.

 

2.           The grounds of appeal, according to the Appellant’s document, “Grounds for Appeal,” appear to be as follows:

 

(i)   The Respondent failed to have regard to material considerations, namely the Appellant’s acquittal at the criminal trial (at paragraphs 13 and 15) and the Appellant’s previous good character (at para 14).

 

(ii)  The decision was procedurally unfair in that the Respondent failed to have regard to the Appellant’s representations (at para 15).

 

(iii) The Respondent failed to give proper reasons for its decision, namely that it failed to explain why it placed her on the adults’ barred list notwithstanding her acquittal (at para 21) and the decision did not refer to the Appellant’s representations (at para 15).

 

(iv)        The Respondent’s determination was irrational (at para 22), particularly in light of her acquittal (at para 16). This appears, although it is not clear, to be an argument that both the conclusion that the Appellant had engaged in relevant conduct, and the conclusion that it was appropriate to include the Appellant in the Adults’ Barred List, were irrational.

 

3.           The Respondent resisted the Appellant’s appeal and so we heard the case on 20^th March 2012.

 

 

Legislative Framework

 

4.           The ISA (the Respondent) is a body corporate established by section 1 of the Safeguarding Vulnerable Groups Act 2006 (“the 2006 Act”). In accordance with section 2 of the 2006 Act, the Respondent must establish and maintain two lists; the children’s barred list and the adults’ barred list. Section 2(3) provides that Part 2 of Schedule 3 applies for the purpose of determining whether an individual is included in the adults’ barred list.

 

5.           The effect of being placed upon one of the lists is contained in section 3 of the 2006 Act. Subsection (3) provides that a person is barred from regulated activity relating to vulnerable adults if (s)he is included in the adults’ barred list. Regulated activity relating to vulnerable adults is defined in Part 2 of Schedule 4 to the 2006 Act. In summary, regulated activity constitutes working with vulnerable adults either in employment or voluntarily. The prohibition on engaging in regulated activity is enforced by criminal sanctions, see section 7 of the 2006 Act.

 

6.           Schedule 3 includes both automatic barring provisions (paragraphs 7 and 8) and discretionary powers to bar an individual (see paragraphs 9-11). RT was listed under the discretionary powers. Paragraph 9 provides:

“(1) This paragraph applies to a person if—

(a)         it appears to ISA that the person has (at any time) engaged in relevant conduct, and

(b)         ISA proposes to include him in the adults’ barred list.

 

(2) ISA must give the person the opportunity to make representations as to why he should not be included in the adults’ barred list.

 

(3) ISA must include the person in the adults’ barred list if—

(a)         it is satisfied that the person has engaged in relevant conduct; and

(b)         it appears to ISA that it is appropriate to include the person in the list.”

 

7.           Paragraph 10 defines “relevant conduct” as including conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult.

 

8.           Paragraph 11 provides:

“(1) This paragraph applies to a person if—

(a)         it appears to ISA that the person falls within sub-paragraph (4), and

(b)         ISA proposes to include him in the adults’ barred list.

 

(2) ISA must give the person the opportunity to make representations as to why he should not be included in the adults’ barred list.

 

(3) ISA must include the person in the adults’ barred list if—

(a)         it is satisfied that the person falls within sub-paragraph (4), and

(b)         it appears to ISA that it is appropriate to include the person in that list.

 

(4) A person falls within this sub-paragraph if he may—

(a)         harm a vulnerable adult,

(b)         cause a vulnerable adult to be harmed,

(c)         put a vulnerable adult at risk of harm,

(d)         attempt to harm a vulnerable adult,

(e)         incite another to harm a vulnerable adult.”

 

9.           Paragraph 16 of Schedule 3 provides that a person who is, by virtue of any provision of this Schedule, given an opportunity to make representations must have the opportunity to make representations in relation to all of the information on which ISA intends to rely in taking a decision under this Schedule.

 

10.        The 2006 Act is silent on the details of the decision-making processes to be operated by ISA (although Part 3 of Schedule 3 includes some general provisions relating to procedure and representations; see also the Safeguarding Vulnerable Groups Act 2006 (Barring Procedure) Regulations 2008 (SI 2008/474)). However, ISA has published, for the use of its case workers, Guidance Notes for the Barring Division Making Process (August 2010). That describes the decision making process as having five steps: initial assessment (stage 1), evidence evaluation (stage 2), case assessment (stage 3), representations (stage 4) and final decision (stage 5) (at section 3.1). We note that as this decision was made prior to the introduction of the latest Guidance Notes, it is the 2010 version to which we need to have in mind.

 

11.        The applicable standard of proof is the civil standard, see XY v. Independent Safeguarding Authority [2011] UKUT 289 (AAC) at paragraph 44. This means, therefore, that we need to determine matters on the balance of probabilities: that is, whether it is more likely than not to have happened.

 

12.        The minimum baring periods are contained in the Safeguarding Vulnerable Groups Act 2006 (Barring Procedure) Regulations 2009. In relation to a person over the age of 25 the minimum barring period is 10 years.

 

13.        An individual who is included in a barred list may appeal to the Upper Tribunal. Appeal rights against decisions made by ISA are governed by s.4 of the SVGA 2006 (as amended), which provides as follows:

 

“Appeals

 

4(1)  An individual who is included in a barred list may appeal to the Upper Tribunal against—

(a) a decision under paragraph 2 or 8 of Schedule 3 not to remove him from the list;

(b) a decision under paragraph 3, 5, 9 or 11 of that Schedule to include him in the list;

(c) a decision under paragraph 17 or 18 of that Schedule not to remove him from the list.

(2)  An appeal under subsection (1) may be made only on the grounds that ISA has made a mistake—

(a) on any point of law;

(b) in any finding of fact which it has made and on which the decision mentioned in that subsection was based.

(3) For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.

(4)  An appeal under subsection (1) may be made only with the permission of the Upper Tribunal.

(5)  Unless the Upper Tribunal finds that ISA has made a mistake of law or fact, it must confirm the decision of ISA.

(6)  If the Upper Tribunal finds that ISA has made such a mistake it must—

(a) direct ISA to remove the person from the list, or

(b) remit the matter to ISA for a new decision.

(7) If the Upper Tribunal remits a matter to ISA under subsection (6)(b)—

(a) the Tribunal may set out any findings of fact which it has made (on which ISA must base its new decision); and

(b) the person must be removed from the list until ISA makes its new decision, unless the Upper Tribunal directs otherwise.”

 

14.            The nature of the right to appeal is, therefore, limited by section 4(2) of the 2006 Act which provides that an appeal may be made only on the grounds that ISA has made a mistake on any point of law, or in any finding of fact which it has made and on which the decision mentioned in that subsection was based. Subsection (3) provides that the question of whether or not it was appropriate to include a person in a barred list is not a question of law or fact. However, if ISA make a decision on appropriateness either unreasonably or irrationally, it can be challenged, see R (RCN) v. Secretary of State for the Home Department [2010] EWHC 2761 (at paragraphs 101, 104).

 

15.            Being a body corporate established by statute (section 1(1) of the 2006 Act), ISA is able to delegate its functions as follows:

 

“(1) ISA may to such extent as it may determine delegate any of its functions to—

(a) one of its members;

(b) a member of its staff;

(c) a committee consisting of some of its members, members of its staff or both members and members of staff.

(2) A committee mentioned in sub-paragraph (1)(c) which consists of both members and members of staff must be chaired by a member.”

 

16. Difficult cases, such as the present one, although initially handled by an ISA case worker, will go to the Board (or in practice a sub-committee of the Board) for a final decision, not least given the gravity of the consequences for the individual concerned in the event that adverse findings of fact are made.  Such a referral was also in accordance with ISA’s Guidance Notes, which advise as follows (emphasis added):

 

“5.7 Acquittals

 

·        Where a jury has found someone not guilty of having done something, case workers must remember that this means that the court could not determine that something happened “beyond a reasonable doubt” (the criminal standard of proof).  The test applied by the ISA in relation to barring considerations is ‘on the balance of probabilities’ (the civil standard of proof). There could however be any number of reasons why a person charged with an offence was acquitted: perhaps the victim decided not to testify and the Crown Prosecution Service (CPS) (Public Prosecution Service [PPS] in Northern Ireland) had to withdraw the case; perhaps the acquittal was based on a technicality; perhaps the witnesses, on cross-examination were comprehensively discredited and the judge came to unequivocal conclusions regarding an individual’s innocence. Where there has been an acquittal, the ISA must still consider the case for itself on the basis of the balance of probabilities but any decision to treat an acquittal differently (to that of the court) would only be taken in very limited circumstances and always only after the case had been reviewed internally and at a senior level.  Cases of this nature should be referred to the Board.”

 

 

Factual Background

 

17.       BB (d.o.b. 5.1.21), and her sister, PA (d.o.b. 26.12.18), resided together in Ms A’s home in Ilford, Essex, IG2 6AP. The documentation describes Ms A as suffering from a “significant cognitive impairment”, and as lacking capacity. The Appellant (d.o.b. 11.6.58) was employed by Ms B as a private carer for PA, who signed the cheques. Whilst we are considering this appeal about conduct, we must make it absolutely clear that there has never been any complaints about the quality of the care that RT gave to PA.

 

18.       Ms B owned a property at FA, Ilford (“the Property”). In May 2007 the Property was transferred into the name of PS, the Appellant’s partner. Ms B died in hospital on 20 May 2007. It appears to be agreed that no payment had been made for the Property at the time of Ms B’s death (see Appellant’s “Grounds for Appeal”) at paragraph 2). There is no dispute that Ms B had mental capacity until 19 May 2007.

 

19.       On 5 June 2007 police and social workers broke into Ms A’s house after she had made repeated telephone calls to the police. Ms A was found to be confused and disorientated, and was taken to hospital although the Appellant was unaware of this. We are aware that Ms A was later discharged home but we are not aware of what happened to her after that. Although this event led to a suggestion that RT should also be barred for locking Ms A in the house, this point was, quite rightly to our mind, not pursued by ISA. The fact that ISA dropped this matter after RT had made representations shows that, contrary to what RT says, ISA did read and take note of what she had written to them.

 

20.       On 8 October 2007 the Appellant and Mr S were charged with conspiring to defraud Ms B of the title deeds for the Property. From the transcripts of the trial at Snaresbrook Crown Court in October 2008 it is evident that there was considerable negotiation between the prosecution and representatives of the Appellant and Mr S. Although the jury were sworn in and the Appellant and Mr S were put in the charge of the jury, ill health and the negotiations meant that no evidence was heard. The negotiations led to Mr S pleading guilty to the offence of making a false representation contrary to section 1 of the Fraud Act 2006 for which he was sentenced in January 2009 to a term of imprisonment of 9 months. Following this guilty plea by Mr S, the prosecution offered no evidence against the Appellant and so the Judge, perfectly properly, directed the jury to return a not guilty verdict. We understand that this information was not before ISA when it made its determination. The direction of the judge meant that on 30 October 2009 the Appellant was found not guilty of the offence. However, it was not as a result of the jury hearing the evidence and acquitting the Appellant but as a result of negotiations between lawyers.

 

21.       The Respondent received a referral concerning the Appellant from the London Borough of Redbridge on 23 June 2010. The referral raised concerns about two matters. The first related to the incident on 5 June 2007 when Ms A was said to have been locked in her home. The second concern related to the transfer of the Property to Mr S and the Appellant. 

 

22.       The referral from the London Borough of Redbridge included the minutes of a strategy meeting held on 11 June 2007. The persons present at that meeting included ST, the sisters’ solicitor and DS PC, from the Community Safety Unit. The minutes record the following:

“Ms T confirmed that she has known Mrs A and her deceased sister, Mrs B, since 2002 when their wills were drawn up. Mrs B died on 20.05.07. 6.6.07 Ms T contacted King George Hospital to make funeral arrangements, as executors of her Will, but was advised that Ms B had been cremated on 30.5.07 and this had been arranged by her private carer [RT]. [RT] later told Ms T that she acted upon Mrs A’s instructions when the decision was made about the cremation. However [RT] later revealed that Mrs A has not yet been advised of her sister’s death for fear of upsetting her; therefore some inconsistency was apparent with carer’s story.

It was then discovered that Mrs B’s house had been transferred to Mr S, partner of [RT], on the 10.5.07 whilst in hospital prior to her death and Ms A had acted as witness. Ms A does not have capacity to make decisions such as this.”

 

23.  On 2 August 2010 the Respondent notified the Appellant that a report had been received from the London Borough of Redbridge, and that enquiries were being made about the circumstances of the allegation.

 

24.  On 5 November 2010 the Metropolitan Police provided a summary extract from the crime report. The crime report recorded Ms B as having mentioned her private carer to Ms T during two previous conversations on the telephone. In June 2006 Ms B informed Ms T that she employed a private carer. She did not provide the name, but said that she was an “Asian lady”. Ms T remembered Ms B stating that both the carer and her husband were very attentive but that she had concerns that they may be trying to inherit her house. Further, in August 2006 Ms T again spoke to Ms B on the telephone. Ms T remembered Ms B saying that she had concerns that the carer she had employed and her husband were after her house

 

25.  The crime report records a conversation between Ms T and Mr S on 8 June 2007. Mr S stated that in November 2006 Ms B said that she would sell the Property to Mr S and the Appellant for £125,000. In May 2007 Ms B requested that the Property be transferred into the names of Mr S and the Appellant. Ms B was said to have signed the transfer deed on 10 May 2007. Her signature was witnessed by Ms A. The deed was sent to the Land Registry on 1 June 2007. The deed showed that the Property had been purchased for £125,000 but no monies were paid to Ms B. The crime reports records an estimate that the Property was worth in the region of £320,000.

 

26.  The crime report records that on 13 June 2007 the Appellant and Mr S were arrested and questioned. Mr S admitted that he had drawn up the deed, and that he had not paid any money for the Property. The Appellant stated that she had witnessed Ms A and Ms B sign the deed.

 

27.  On 17 November 2010 an ISA case worker carried out the first stage (initial assessment) of the decision making process using the the BDMP document. On 18 November 2010 an ISA caseworker completed the second stage (evidence evaluation) of the decision making process on pages 3-6 of the BDMP. On 22 November 2010 an ISA case worker carried out the third stage (case assessment) of the decision making process on pages 7 to 15 of the BDMP document. That case worker concluded that “relevant conduct” had occurred.

 

28.  On 23 November 2010 the Respondent sent the Appellant a “minded to bar” letter. The letter invited the Appellant to make representations in accordance with the statutory scheme.

 

29.  In a letter to the Respondent dated 13 January 2011 the Appellant requested additional time to submit representations. She stated that the allegations were “malicious, and fabricated and made for jury purpose”. She enclosed a letter dated 10 January 2011 from a Macmillan nurse, KM, who stated that the Appellant and Mr S had been looking after Mr S’s brother between March 2010 and December 2010 as a result of Mr S having a malignant brain tumour. Ms M invited the Respondent to be sympathetic in respect of the request by the Appellant to extend time for the representations.

 

30.  On 17 January 2011 an ISA caseworker wrote to the Appellant to confirm that time to submit representations had been extended until 17 February 2011.

 

31.  On 31 January 2011 the Appellant wrote to the Respondent. In the letter the Appellant stated that she would not be making any representations as her case needed to be investigated by the authorities. The Appellant appeared to be suggesting that DS C (and possibly Ms T) had behaved improperly. The Appellant included a letter dated 11 January 2011 from her MP, and a letter dated 13 January 2011 from St Joseph’s Hospice confirming that she and Mr S were attending bereavement counselling. She asked the Respondent to delay in making any decision until the investigations were concluded.

 

32.  By a letter dated 7 February 2011 an ISA caseworker stated that the deadline of 17 February 2011 still remained.

 

33.  On 10 February 2011 the Appellant made further written representations to the Respondent. In these representations, the Appellant stated that DS C had conspired with the London Borough of Redbridge to pervert the course of justice. She stated that Ms A had access to a set of keys at all times. She emphasised that she was acquitted of the charges against her, as the prosecution accepted that it was wrong to lodge a form with the Land Registry without making a payment. It had been agreed that the payment would be made after her son returned from Hong Kong. The Appellant maintained that the statements of Ms T were false.

 

34.  Attached to the letter of 10 February 2011 were three documents. The first was a witness statements from Ms Tatum in which she confirmed the two conversations that she had held on the telephone with Ms B in June 2006 and in August 2006. The second document appears to be an extract from GP notes for Ms A with entries dated between 20 March 2006 and 11 June 2007. The third document was a handwritten note, entitled “statement of offence”. The Appellant has written that it is an agreed plea.

 

35.  On 16 February 2011 an ISA caseworker completed the fourth and fifth stages of the decision-making process on pages 16-19 of the BDMP document.  

 

36.  On 24 February 2011 the Respondent wrote to the Appellant notifying her of the decision to include her on the adults’ barred list. The decision was made using the power in paragraph 9 to Schedule 3 of the 2006 Act. The decision letter stated that the allegation that the Appellant had locked a vulnerable adult in her own home was unsubstantiated. This shows us that the ISA caseworker read and took notice of RT’s representations and acted on those thought to have merit.

 

37.  The letter concluded, however, that on the balance of probabilities the Appellant was involved in a scheme to defraud a vulnerable adult of her property. The reasons give were as follows:

 

“This is because you acted in an exploitative manner towards a vulnerable adult in your care when, along with your partner, you carried out a plan to transfer Mrs B’s property into your partner’s name. Although you allege that you agreed to pay for the property no money was ever paid to Mrs B. You state that money was to be paid after your son returned from Hong Kong, however the price agreed was substantially less than the market value and there is no information contained within your representations that provides mitigation for this.

We therefore remain of the view that you have engaged in relevant conduct, in that you engaged in conduct which endangered a vulnerable adult or was likely to endanger a vulnerable adult.

We furthermore remain of the view that it is appropriate to include you on the Adults’ Barred List in light of the relevant conduct. This is because the evidence behind the facts in this case gives us significant concerns that your exploitative attitude and lack of empathy were central to your actions when you conspired to defraud your elderly client. The information presented in your letters of representation has been fully considered, and the case reconsidered in light of this and although one of the allegations against you has now been found not proven it has been found that you abused your position of trust with an elderly, vulnerable adult in a premeditated manner. We have significant concerns that other vulnerable adults would be at risk of exploitation and financial harm were you to continue to work closely with them and a positive barring decision is therefore deemed appropriate.”

 

38.  The Appellant made further representations in a letter dated 6 March 2011. The Appellant stated that she and Mr S had health difficulties. She had breast cancer in 2008, and had further surgery in 2010. The Appellant stated that the prosecution at the criminal trial had accepted that the purchase price for the Property was £125,000. She stated that the purchase price included further consideration, namely that she was required to look after both sisters in their home until their death. She did not receive any wages for the period from January 2007 until 14 June 2007. The Appellant emphasised that the transaction was carried out in good faith. They had been prepared to offer £175,000-180,000 when the asking price of the Property was between £200,000 and 225,000.

 

39.  The Appellant enclosed the following documents under cover of the letter dated 6 March 2011:

 

(i)   A letter from her GP dated 15 May 2009 confirming that she had suffered from breast cancer, which had been diagnosed in 2008.

 

(ii)   A letter from Mr S’s GP, confirming that he suffered from chronic anxiety, depression and sleep problems.

 

(iii)  A letter from Queen’s Hospital, Romford dated 27 April 2010 confirming that she was due to have breast surgery on 14 May 2010.

 

(iv)         An unsigned witness statement from CR, a partner in the solicitors’ firm, EO&B, dated 6 February 2008. Mr R was the executor of Ms B’s will.

 

(v)   An unsigned witness statement from Dr HAl-Q dated 6 February 2008. Ms B was admitted to hospital under the care of Dr Al-Q on 4 May 2007.

 

40.  An ISA case worker revisited the decision upon receipt of the representations, and recorded the outcome at page 19 of the BDMP. The decision was that RT remained on the adults’ barred list.

 

41.  On 25 March 2011 the Respondent wrote to the Appellant to say that the most recent representations had been considered but that it was still appropriate to include her on the Adults’ Barred List. The letter stated:

“There is insufficient evidence provided to substantiate the reasons you give in your representations dated 6 March 2011, for agreeing a price lower than market value for the purchase of Ms B’s property and we continue to have significant concerns that other vulnerable adults would be at risk of exploitation and financial harm were you to continue to work close with them.”

 

42.  The Appellant filed an application for permission to appeal to the Upper Tribunal on 19 May 2011. By order dated 2 June 2011 the Upper Tribunal ordered certain documents to be disclosed by the ISA. By Notice of Determination of Application for Permission to Appeal dated 27 July 2011, Judge Wikeley granted permission to appeal.

 

Our decision

 

43.  The Appellant’s first point is that the Respondent failed to have regard to a material consideration, namely the Appellant’s acquittal at her criminal trial, and her previous good character.

 

44.  We reiterate that the appellant has not been convicted or cautioned in relation to any relevant offence involving children (if she had, of course, this would have been an “auto-bar” case and it is also possibly unlikely that permission to appeal would have been granted by the Upper Tribunal).  However, these are civil proceedings and the absence of any such criminal record is not determinative of the outcome although, of course, it is one reason why the burden of proof is on ISA. 

 

45.  RT says that she was found not guilty of the criminal charge. An acquittal is not of itself decisive. In XY v. Independent Safeguarding Authority [2011] UKUT 289 (AAC) the Upper Tribunal stated (at paragraph 48):

“We agree... that ‘relevant conduct’ is defined differently to the conduct required for proof of the commission of any particular criminal offence, and so conduct that is not criminal may still be ‘relevant conduct’. Obviously a criminal trial is rightly subject to strict rules of evidence and the prosecution must prove its case beyond reasonable doubt, i.e. to a very high standard. However, proceedings before ISA are civil in nature, the strict rules of evidence do not apply and a lower standard of proof operates. Thus a criminal prosecution may not succeed, for any number of reasons, but there may still be sufficient evidence to conclude on the balance of probabilities that the alleged abuser has engaged in ‘relevant conduct’...”

 

46.  We find that the Respondent had regard to the Appellant’s acquittal. That is apparent from the BDMP, which stated as follows (at the third stage) (pages 4 and 5 of the BDMP):

“Mr S was found guilty of fraud and although [RT] was acquitted of the offence by the court, by introducing her partner to the sisters and doing nothing to prevent the harm it can be reasonably inferred that she helped to facilitate the act... There are sufficient indications that she was not only aware of Mr S’s intentions but had acted in such a way as to assist Mr S in the commission of the offence and it is found on the balance of probabilities that [RT] was involved in a scheme to defraud Ms B of her property.”

 

47.  In fact the ISA case worker has fallen into the trap of equating the not guilty direction of the judge as being the same as a not guilty verdict of the jury, having heard the evidence. We reiterate that the only reason the Appellant was not tried was because of the negotiations between the barristers at Snaresbrook Crown Court in October 2008. Whilst RT was “acquitted”, it was not after a full trial before a jury during which the evidence was tested in cross-examination.

 

48.  We note that the BDMP stated that “although there is limited information in the case material relating to the dynamic of [RT]’s relationship with Mr S the fact that he was found guilty of the fraud suggests that he had been the main perpetrator and that she had been ‘going along’ with his plan” [BDMP page 10]. We are aware that RT says that she did not take advantage of a vulnerable person because B was not her client (P was). Whilst that is correct, she and Mr S took advantage of someone who was not her patient, someone for whom she would make tea and meals if she was doing so for P. We regard this as being just as serious.

 

49.  Reading the BDMP as a whole, it is plain that the Respondent had regard to the fact that the Appellant had been acquitted, but concluded that the evidence demonstrated that, on the balance of probabilities, the Appellant had been involved in a scheme to defraud Ms B of the property.  RT says that the notes of the Redbridge meeting on 11 June 2007 are not accurate.

 

50.  We cannot help but note that whilst it has been said by RT and Mr S that they (emphasis added. See for example the letter of 6 March 2011 where RT says on the second page that “…we were willing to offer…”) had always intended to pay the £125,000 for the property, Mr S did not have that sum of money in his account at the time the deed of transfer was signed or even by that date that B died. It was only fully available on 5 June 2007, when the solicitor who was executor for B had started to ask some difficult questions. The Snaresbrook Crown Court trial transcripts show that there was a build up of funds from 24 May 2007 when over £16,000 is paid into Mr S’s account. On 4 June 2007 £85,000 goes into the account and the following day, 5 June 2007, a further £22,000 is added making a total of £126,000. The crucial point for us is that BB died on 20 May at which point Mr S did not have the money in his account.

 

51.  We do not accept that the Appellant’s previous good character (namely her work as a carer for eight years without any history of her posing a risk to vulnerable adults, and her lack of criminal convictions) is necessarily a determinative consideration in determining whether to place the Appellant on the Adults’ Barred List pursuant to paragraph 9 of Schedule 3 to the 2006 Act. A single serious act falls within the definition of “relevant conduct” for the purposes of paragraph 10(1) of Schedule 3 to the 2006 Act. It follows that the Appellant’s previous good character is of no relevance to the test of whether relevant conduct occurred under paragraph 9 and, given the circumstances of this case, we are satisfied that it is not irrational to include the Appellant on the Adults Barred List regardless of previous good character.

 

52.  The Appellant’s second point is that the decision was procedurally unfair in that the Respondent failed to have regard to the Appellant’s representations. This ground of appeal cannot be maintained for three reasons: first, the decision letter dated 24 February 2011 referred to the Appellants suggestion in her letter dated 10 February 2011 that the money was to be paid to Ms B when the Appellant’s son returned from Hong Kong. This shows us that the representations were noted. However, just because the representations were not accepted does not make the decision procedurally unfair. [As an aside, we were never told if the money paid into Mr S’s account did come from his son and why it was necessary, in any event, for there to be a delay until his return.] The second reason that the ground of appeal cannot be maintained is that the decision letter dated 25 March 2011 referred to the reasons provided by the Appellant in her letter dated 6 March 2011 for agreeing a price for the Property that was lower than the market price. The representations made by the Appellant are fairly summarised in the BDMP (pages 16-19). The third reason is that in relation to the allegation that the Appellant had locked Ms A in her house, the Appellant’s representations of 10 February 2011 triggered a determination that this allegation could not be proved on the balance of probabilities (BDMP pages 17 and 18).

 

53.  The Appellant’s third ground of appeal is that the Respondent failed to give proper reasons for its decision. There is no statutory requirement for reasons to be given for the decision to place a person on the Adults’ Barred List. Paragraph 14 of Schedule 3 to the 2006 Act provides only that when an individual is included in a barred list the Respondent must take all reasonable steps to notify the individual of that fact. The Respondent accepts, however, that it subject to a duty to give reasons (being either implied from the 2006 Act or deriving from the common law).

 

54.  Reasons for a decision need to be intelligible and adequate, and they must enable a reader to understand why the matter was decided as it was, see South Bucks District Council v. Porter (No 2) [2004] 1 WLR 1953, per Lord Brown (at paragraph 36). In RT’s case we are satisfied that the reasons provided in the decision letters of 24 February 2011 and 25 March 2011 met the standard laid down in the South Bucks case. If we are wrong in that conclusion, we are fully satisfied that any defect in giving reasons was cured by the disclosure of the BDMP.

 

55.  The Appellant’s fourth point is that the Respondent’s decision was irrational. This is a particular reference to the fact that she was not pursued by the prosecution and that the jury were directed to acquit her. As noted above, this appears to be an argument that both the conclusion that the Appellant had engaged in relevant conduct, and the conclusion that it was appropriate to include the Appellant in the Adults’ Barred List, were irrational. We are satisfied that neither can be sustained. It fails to take into account the fact that a criminal trial is not the same as an ISA assessment and that they have different considerations and evidential tests.

 

56.  In relation to the conclusion that the Appellant had engaged in “relevant conduct”, we find that the Respondent had sufficient evidence to reach the conclusion that it did. In particular, we note the facts and matters set out in the BDMP under stage 3 (pages 4 and 5).

 

57.  As to the conclusion that it was appropriate to include the Appellant in the Adults’ Barred List, given that we are satisfied that the conclusion ISA reached in relation to “relevant conduct” was lawful, the decision on whether or not it was appropriate to include the Appellant in the Adults’ Barred List has to be yes.

 

58.  We are concerned that RT seems to have no concept of the boundaries between a carer and the person who is cared for and the fact that being in the position of a carer means that one is in a position of trust and cannot do certain things. RT appears not to be able to grasp the concept of and problem with financial exploitation and the fact that this was not a minor matter but involved a large sum of money.

 

59.  In addition to the four Grounds of Appeal, during the hearing it became clear that Mr S was concerned that the ISA case worker had failed to take into account the anomaly about PA’s signature. Ms A’s solicitor had allowed her to sign an amendment to her will in 2005 even though she had not had capacity since 2002. Mr S believed that, because of this, Ms A had the capacity to sign the transfer document as a witness. Indeed, this is part of his basis of plea in the criminal proceedings. He also believed that she was able, therefore, to register her sister’s death.

 

60.  Whilst it was part of Mr S’s basis of plea in the crown court that he did not know that PA did not have the capacity to witness a transfer of property, RT cannot have been under any illusion given that she was employed by BB to care for P. RT should have drawn P’s incapacity to Mr S’s attention and her failure to do so is clear evidence of her exploiting both P and B.

 

61.  Although RT and Mr S say that they were not exploiting BB because she had capacity and was able to decide what to do, we do not accept that. We conclude that she was being exploited for four reasons: first, given her living arrangements, she was a vulnerable person in the broadest sense, second, she was concerned about P and that would have made her vulnerable, third, she was unwell and fourth, all of this was done without involving anyone outside the four of them. Had the sale been legitimate, it would not have been a problem to involve Ms B’s solicitors, for example.

 

62.  As we mention in Paragraph 38 above, in the Response dated 6 March 2011, the suggestion is made that the transfer of the property was on the basis of future consideration, namely that she was required to look after both sisters in their home until their death, we reject this suggestion. It was not referred to in the Grounds of Appeal to this tribunal, nor was it mentioned at the criminal trial, and was not part of the submissions made to ISA in January or February 2011.It was mentioned only after the decision had been made by ISA and it is, we find, invented at the last minute to try to explain why there was no funds available until after the solicitor became involved in June 2007. Had this been a legitimate reason it would have been known at the time of B’s death and would no doubt have been mentioned long before it actually was. There was no written note or agreement to this effect, no formal record kept by a solicitor and therefore the only conclusion we can reach is that it was not considered until the last minute.

 

63.  We find and are entirely satisfied that RT was as involved as Mr S in this transfer. She was present when the deed was signed and even party to the agreement (“…we were willing to offer…” in the letter 6 March 2011). Likewise, we find that the reason PA was used to witness the deed was to keep it private and away from solicitors. We are entirely satisfied that RT and Mr S intended to keep the process of transfer concealed, that there was never any intention to pay the £125,000 and that the statement that the box on the transfer form indicating that the sum had been paid was ticked “by mistake” was wrong and misleading. We likewise reject Mr S’s suggestion to us during the hearing that the non-payment of the purchase price before lodging the Transfer with the Land Registry was “…a technical mistake, which I regret.” No doubt, had BB not died when she did, the wrongful transfer would not have come to light. It was only because BB died when she did that her interests were able to be protected by her solicitor.

 

64.  We also find that the reason £125,000 was decided upon was because Mr S, who had done some conveyancing before, knew that this was the maximum sum that would not attract stamp duty. By keeping it to this level it limited the number of organisations involved and reduced the risk of being discovered. Although we have no valuation evidence to be absolutely certain, we are satisfied that £125,000 is an undervaluation and it is more likely than not that the property was valued between £275,000 and £300,000.

 

65.  Another matter raised by Mr S at the hearing was that we should not rely on the evidence of Ms T because it was fabricated. This was because the notes she had made were in manuscript, because her notes were different from her police statement and because she was wrong to say that you can register with the Court of Protection over the telephone. We reject that contention outright. There is nothing wrong in making a manuscript note – judges and lawyers do it all the time during a hearing. The police statement is not materially different from her manuscript notes and given that it is prepared by a police officer it is not surprising that some of the language may be expressed differently. As for the registration over the telephone, it is clear to us that Ms T was advising Ms B that she could ask over the telephone for the documents needed to register.

 

66.  The last matter we need to deal with is the allegation contained in the letter from RT dated 10 February 2011 that “the officers of London Borough of Redbridge have aided and abetted and conspired with DC C to pervert the course of justice……There is prime facie evidence that DC C is involved in criminal activities.” There is absolutely no evidence whatsoever for these serious slurs and we reject them unreservedly.

 

Conclusion

67.  In the light of all the factors above, we are satisfied that ISA neither erred in law nor made any material mistakes of fact in concluding that RT had engaged in relevant conduct. Consequently, because relevant conduct had been established, the decision of ISA was neither irrational nor unreasonable. We are not satisfied that any of the four grounds of appeal are made out, for the reasons set out above and so we dismiss the appellant’s appeal and uphold the decision of ISA to include RT on the Adults’ Barred List.

 

 

 

Signed His Honour Judge Simon Oliver

18^th April 2012 Judge of the Upper Tribunal

 

Ms Bez Chatfield

Specialist Member of the Upper Tribunal

 

 

Ms Janice Funnell

Specialist Member of the Upper Tribunal