HC/1086/2009

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

ON AN APPLICATION FOR PERMISSION TO APPEAL

 

Hearing and Decision

 

1. This appeal does not succeed. I confirm the decision of the First-tier Tribunal (HESC chamber), sitting at Pocock Street (London) on 14^th January and 6^th February 2009 and made (apparently on 3^rd March 2009) under reference (2008) 1345 PC, refusing the appellant’s appeal against a decision or decisions by the Secretary of State that his name be included on the Protection of Children Act (POCA) list maintained under the provisions of the Protection of Children Act 1999 and the Protection of Vulnerable Adults (POVA) list maintained under the Care Standards Act 2000 and “list 99” maintained under the Education Act.

 

2. I held an oral hearing of this appeal on 25^th April 2013. The appellant attended in person and was represented by Ms Eleena Misra of counsel acting for the Bar Pro Bono Unit (who did not appear below), The Secretary of State was represented by Ms Kate Olley of counsel, instructed by the Treasury Solicitor. The relevant Secretary of State has had various designations during the lengthy course of these proceedings but in this decision I simply refer to the “Secretary of State”.

 

3. I have not set out the relevant legislation in this decision because nothing turns on its interpretation or application and it has been summarised by the First-tier Tribunal. In essence a person can be prohibited from working with children and/or in education and/or with vulnerable people if he is unsuitable because of misconduct or on certain other grounds.

 

Background: Before September 2007

 

4. The appellant is a man who was born on 25^th February 1966. After the relevant training he qualified as a registered mental health nurse in about 1995. He then worked in a number of settings, both with adults and young people, and for a variety of organisations and agencies. On 20^th May 1999 the appellant was convicted at the Crown Court of assault, in respect of which he was conditionally discharged for two years. A charge of assault occasioning actual bodily harm in respect of the same incident was left on the file. He had got into a dispute with a car mechanic over repairs to his car and was said to have punched the victim in the face. He admitted some pushing but denied punching. He has always disclosed this conviction.

 

5. In the following years there were various allegations by the appellant’s wife of domestic violence by the appellant. She had called the police on four occasions and told the police that the appellant had been violent to her (although by the time of the First-tier Tribunal hearing they had been reconciled and she told the First-tier Tribunal that the allegations of violence had not been true).

 

6. The appellant also received a harassment warning in respect of an incident on 4^th November 2004. The victim had accused the appellant of following and threatening her because he believed that she had got him the sack from a hospital following an allegation that he had assaulted one of the patients. The appellant told the First-tier Tribunal that he had indeed been served with such a notice but although he had been talking to the person in question he did not believe that this was harassment.

 

7. There was an incident involving the appellant and his children on 2^nd July 2007 and a letter of 12^th November 2007 from a police lawyer (page 177 of the hearing bundle) gives the following account:

 

“[The appellant] had separated from his wife. His 9 year old daughter reported that her father had picked her up from school and told her that she smelt. He then kicked her on either hip while wearing shoes and she fell to the floor crying. She remembered him saying something like you won’t do that again. He pushed her out on to the landing but then saw her aunt had come into the house. He took her back into her room and she sat on the bed. He slapped her round the face both sides about 4 or 5 times. He then told her to go and wash and she noticed blood in her mouth. After her bath he told her how important it is to smell nice and said sorry and hugged her. He then left. Her 12 year old sister returned home and saw her younger sister’s face. She called her father to tell him that what he had done wasn’t right and he stated he was coming to get her. Fearing that he was coming back to hurt her, the elder daughter jumped from the first floor bathroom window to call for help and landed on her arm. Neither daughter would support a prosecution. [The appellant] attended the police station voluntarily and was arrested for assault on both children. In interview [he] admitted slapping his younger daughter twice around the face and that this cased bleeding from the top gum. [He] was cautioned for common assault on his younger daughter”.

 

8. Of course, this lawyer was not a direct witness but this account was based on the crime report and was essentially the same as that given in oral evidence to the First-tier Tribunal by the police child protection officer who had interviewed the children together with somebody from the Social Services Department. She told the tribunal that the children had been consistent in their stories and she gave further details about conversations with the children’s mother.

 

9. The appellant also gave oral evidence to the First-tier Tribunal about this incident. The tribunal recorded the following (paragraph 15 of its statement of reasons, to which other paragraph numbers also refer unless otherwise indicated):

 

“… he admitted to slapping her across the face twice. Initially his position was that this amounted to reasonable chastisement but upon mature reflection conceded that it was not reasonable. He said that he was under immense pressure at the time because of marital and money problems and the illness of his mother. He denied causing the injury to [his younger daughter] saying that it must have occurred after she left the room. He said “I was shocked to discover the bleeding. I hugged her and there was no bleeding when I left” He could not explain why he told the police that he had seen the blood. He said that this was totally out of character and that he was not a violent man”.

 

10. The First-tier Tribunal stated that it could find no reason to disbelieve the girls’ story (although they themselves had not given oral evidence to the tribunal) and the appellant had suggested no reason why they would lie about the incident. Indeed both the appellant and his wife had given evidence that they are “normal truthful children”. On the other hand, the tribunal found the appellant’s evidence to be inconsistent and his attitude to the incident dismissive. “It amounted to a serious loss of control” and constituted misconduct (paragraph 39).

 

11. The appellant never disclosed this incident or caution to his employer, as he was required to do by his contract of employment. He told the First-tier Tribunal that he thought the caution was just a police warning and that he was not obliged to report it. I observe here that a formal police caution (which is an alternative to prosecution) always involves the acceptance of criminal guilt. The First-tier Tribunal had “no doubt having heard [his] evidence that he fully understood the nature of the caution and the duty to disclose … His failure to reveal it was in our view quite deliberate and we find amounts to misconduct” (paragraphs 40 and 41).

 

12. Summarising its overall view of events prior to September 2007 the First-tier Tribunal stated that “So much involvement by the police suggests at best a degree of volatility that would cause anybody concern” (paragraph 40).

 

The Incident on 1^st September 2007

 

13. At the relevant time the appellant was employed by an agency and on 1^st September 2007 the agency sent him to work at a medium secure hospital unit for the assessment, treatment and care of 17 young people aged 12 to 18 detained under the provisions of mental health legislation. He had already worked at the same unit or one or two days that week. On that day there were only two permanent members of staff on duty and the appellant was one of perhaps 12 agency staff there. Registered Nurse “Catherine” was in charge of the shift. At about 6.05 pm, after dinner, a major disturbance broke out amongst the young people during the course of which it was alleged that the appellant punched and kicked Ms G, one of the young people. It was this allegation that sparked the process leading to this appeal.

 

14. Nurse Catherine told the First-tier Tribunal in oral evidence that the disturbance began when one of the young people punched a member of staff in the back and head, others joined in and the staff became involved in trying to protect their colleague and restrain the young people. This had been going on for about 20 minutes when the appellant arrived on the scene and was sent to get some medication, which he did, returning with it made up in a syringe. At that point Nurse Catherine left the scene for a while but when she returned the disturbance was continuing, another member of staff was attacked, there were about five young people still fighting and although police had arrived (a different witness said that there were four police officers) they would not intervene. At this point Nurse Catherine saw the appellant punch and kick Ms G. The appellant was then told to leave the floor. Eventually a police “riot squad” brought the situation under control and secured the building.

 

15. Under cross-examination Nurse Catherine, who had not previously met the appellant, “remained adamant” that she saw him punch and kick Ms G, that “these wee not defensive actions and that they did not amount to good practice. At no point did she see any other staff member retaliate or act inappropriately despite severe provocation”. She denied a suggested that she had colluded with another member of staff (“Donna”) in the wording of her statement (paragraph 23).

 

16. Donna also gave oral evidence to the First-tier Tribunal. She said that she was about a metre away from the appellant (whom she had not previously known) and was restraining another young person when she saw Ms G lash out at the appellant and saw him retaliate by hitting and kicking her. She saw an injury on Ms G’s leg. She denied colluding with Nurse Catherine in making her statement although she had used the start of the latter’s (written?) statement as a template (paragraph 24).

 

17. The appellant called Ms O to give oral evidence. She had been assaulted by up to five young people near the beginning of the disturbance but had not seen the appellant with Ms G. Mr N was also called by the appellant and told the First-tier Tribunal that he saw Ms G attack the appellant but did not see the appellant hit or kick Ms G (paragraphs 26 and 27).

 

18. The First-tier Tribunal saw written evidence from Mr B in the form of two statements, dated 18^th August 2008 and 11^th October 2008. As will be seen below, there have been suggestions that these statements were not before the tribunal but it now seems clear (from the witness statement of 17^th October 2012 from Ms HM of the Treasury Solicitor’s Department, and as now agreed on behalf of the appellant), that Mr B’s written evidence was before the First-tier Tribunal although he was not called to give oral evidence and the evidence was not referred to in the First-tier Tribunal’s written reasons.

 

19. Mr B was a registered mental nurse working for a different agency and was employed at the unit on that particular day. In his first statement he gave a general description of the incident and then said that at one point he had hold of Ms G’s right arm and the appellant was holding her left arm. Other young people were attacking them and Ms G was kicking and spitting at the appellant. He continued as follows:

 

“[The appellant] lashed out at [Ms G] hitting the face region. I shouted at [him] asking him ‘What are you doing?’. I immediately released [Ms G]. [Other young people] broke away from [their] restraining staff members and surged toward [the appellant] who then retreated … staff members were bruised, battered, exhausted, frustrated, abandoned, despairing and terrified … realised that the situation was out of and beyond all control. Some of the [young people were] arming themselves with newly dug up cobblestones and shards of glass from windows that they had smashed. Staff members had no choice but to abandon the area. I think that [the appellant’s] actions were borne out of fear for his safety and being overwhelmed by the enormity of the situation and the desperation of the plight”.

 

20. Mr B’s second statement was specifically made in connection with proceedings before the Nursing and Midwifery Council. In it he commented on policy and physical environment issues and gave further background information about the incident. He repeated the account given in his first statement, said that the appellant seemed to be subjected to greater violence than Mr B himself was, and stated the following:

“As this was happening, [the appellant] lashed out at [Ms G], hitting her somewhere in the face. I am not sure exactly where [he] hit [her], but my impression was that, while he was defending himself, he was not trying to assault her. It seemed to me more like he was trying to stun her into stopping her attack on him. However, I was still shocked at [the appellant’s] actions, and shouted at him, saying ‘What are you doing?’”.

 

21. The First-tier Tribunal also saw a written statement made to the police by Ms G who said, “I was assaulted by a member of staff called [the appellant’s forename). He assaulted me by slapping me in the face and kicking my leg. This caused me to have a bruise on my leg”. She did not press criminal charges (paragraph 28).

 

22. In relation to the incident of 1^st September 2007 the First-tier Tribunal made the following findings (paragraphs 42 to 44):

 

“42. … We have no doubt that this was an extremely traumatic day. We understand that practices have changed but to have so many agency staff on duty with no relationship with the young people is asking for trouble. The “riot” was extreme and the young peoples behaviour totally reprehensible yet none of the staff on duty had any allegations made against them except for [the appellant]. It is important to examine the sources of those allegations. They come from both staff and the young person in question. [The appellant] was not known to [Nurse Catherine] and [Donna]. Despite attempts by [the appellant’s representative] to suggest that their evidence was somehow collusive we can find no evidence for this nor can we find any motivation for them both independently making the allegation up. Given the chaotic situation it is not surprising that the incident was not seen by all staff [and] their failure to see it does not mean it did not happen as described.

 

43. If the allegation had come from [Ms G] alone we would have been cautious in accepting her account but it does corroborate what [Donna] and [Nurse Catherine] said. The injury observed on 3 September in hospital is also consistent with a kick as described and not consistent with a fall and clearly occurred before the police arrived.

 

44. We do not find [the appellant’s account to be credible. It is also clear from the findings already made that he is a man with poor impulse control. We therefore find that [the appellant] did assault [Ms G] by punching her in the face and kicking her in the leg. This was no doubt a reaction to extreme provocation but nonetheless displayed an unacceptable response to the situation”.

 

The Subsequent Procedure

 

23. On 19^th September 2007 the agency that employed the appellant referred the matter to the Secretary of State following complaints it had received about what had happened on 1^st September. On 22^nd November 2007 the appellant was provisionally placed on the POCA list, and on 10^th July 2008 his inclusion on both the POCA and POVA lists was confirmed. On 25^th July 2008 he appealed against being included on these lists. On 30^th July 2008 the appellant’s Nursing and Midwifery Council (NMC) registration was suspended (such suspension being continued on a number of occasions, including continuations by no fewer than three high court judges). The First-tier Tribunal had meanwhile assumed jurisdiction to hear appeals against being placed on the lists and, after hearing the matter on 14^th January and 6^th February 2009 confirmed the decision of the Secretary of State (apparently on 3^rd March 2009). It is that decision of the First-tier Tribunal (and no other decision) that is under appeal in the present case. The panel hearing the matter was presided over by Judge Robertson.

 

24. The First-tier Tribunal concluded (paragraphs 45 and 46):

 

“45. Vulnerable people have a right to expect that people who care for them can control their temper and will not put them at risk. [The appellant] in our view clearly has problems with his temper and what is worse in many ways, fails to recognise and accept this. If he had accepted that incidents had occurred, shown contrition, accepted responsibility and shown that he had taken steps to deal with the problem we may have had sympathy for him as he is clearly a decent and dedicated man. In his evidence however he consistently minimised and downplayed the significance of matters. He accused colleagues of lying and throughout accepted no responsibility for his own actions.

 

46. Given all these factors it is clear to us that he is not a person who is suitable to work with Children or Vulnerable Persons.”

 

25. On 25^th March 2009 the appellant sought permission to appeal to the Upper Tribunal against the decision of the First-tier Tribunal. Ten grounds of appeal were advanced but I do not need to go through them at this stage. On 3^rd April 2009 Judge Robertson refused to give permission to appeal to the Upper Tribunal after dealing with each of the grounds put forward. On 27^th April 2009 the appellant made a further application direct to the Upper Tribunal. On 22^nd May 2009, based on consideration of the papers alone, Upper Tribunal Judge Rowland refused permission to appeal, essentially (as I read it) because the grounds raised arguments of fact (even when dressed up as law) and the Upper Tribunal can only interfere with the decision of the First-tier Tribunal if it was made in error of law.

 

26. On 5^th June 2009 the appellant exercised his right to request reconsideration at an oral hearing and this took place before Upper Tribunal Judge Wikeley on 4^th January 2010. The appellant was represented by a new representative (not Ms Misra) who argued that the First-tier Tribunal had not reached reasonable decisions in the light of the evidence before it. On 11^th January 2010 Judge Wikeley also refused permission to appeal. He rejected arguments that the First-tier Tribunal had failed to have regard to the seriousness of the situation on 1^st September 2007; that the failure to refer to Mr B’s statement was an error of law; that the tribunal had not established a link between the appellant’s actions and the injury to Ms G; that there was an error of law in its treatment of the police caution; that because the relevant care authorities had decided that the appellant’s children were not at further risk, the First-tier Tribunal had erred in the way in which it had treated the assault(s) by the appellant on his daughter(s); and that the tribunal was wrong as a matter of law in its conclusions on the suitability of the appellant to work with children and vulnerable adults. In relation to the evidence of Mr B he said:

“ … it is quite true that the tribunal make no reference to [Mr B's] evidence. 

….. But of course a tribunal is not required to deal with every piece of evidence.  This tribunal dealt with the evidence of two staff witnesses which was firmly adverse to the applicant.  It also dealt with the evidence of two staff witnesses who had not seen any assault by the applicant on [Ms G].  As the tribunal noted 'Given the chaotic situation it is not surprising that the incident was not seen by all staff [and] their failure to see it does not mean it did not happen as described'.  While I accept that [Mr B] was closer to the incident than any of the other four witnesses, it does not necessarily follow that he had the best view, given he and the applicant were on either side of [Ms G] seeking to restrain her.  It is also right to say that [Mr B's] evidence is by no means a vindication of the applicant’s behaviour.  It is ambivalent about the applicant's conduct. It is true that in his witness statement [Mr B] states that his impression was that the applicant was defending himself, rather than trying to assault [Ms G], but he still described himself as 'shocked' at the applicant's action, which is consistent with his incident report.  I cannot say that it is arguable that the tribunal erred in law in not referring to the [Mr B]'s evidence, not least as it had over 400 pages of documentary evidence to consider."

27. The appellant applied for this determination to be set aside but on 1^st April 2010 Judge Wikeley decided that there were no grounds on which it could be set aside. The appellant, having mistakenly sought to appeal to the Court of Appeal, then sought permission to apply to the Administrative Court of the Queen’s Bench Division of the High Court for judicial review of the Upper Tribunal’s refusal of permission to appeal to it against the decision of the First-tier Tribunal. This application was refused by Mr Justice Mitting on 17^th February 2011 on the basis of consideration of the papers. However, on reconsideration at an oral hearing on 8^th July 2011 Mr Justice Wilkie gave permission to proceed with the application for judicial review and this came before the President of the HESC Chamber of the First-tier Tribunal, HH Judge Sycamore, sitting as a Deputy High Court Judge, on 13^th June 2012. By order issued on 14^th June 2012 he quashed the Upper Tribunal’s refusal of permission to appeal and remitted the application for permission to appeal back to the Upper Tribunal.

 

28. Meanwhile, on 21^st February 2011 the Conduct and Competence Committee of the Nursing and Midwifery Council decided that the allegation that the appellant had assaulted Ms G was not well-founded. It must be emphasised that this finding is not in any way binding on the Upper Tribunal or the First-tier Tribunal as to fact (except to the extent of meaning that the appellant remained on the relevant register), nor can it render any decision of either of those tribunals wrong in law. It was governed by different procedural rules, applied different tests, had a different purpose and considered different evidence.

 

29. HH Judge Sycamore took the view that looking at the evidence of Nurse Catherine, Donna and Mr B there were “two accounts which lent support to the use of lawful self-defence by [the appellant] and one which did not. That tension was simply not resolved or grappled with” (paragraph 36). With respect, I find that puzzling. First because although all three were competent witnesses as to the facts as they perceived them, the conclusions to be drawn from those facts were for the First-tier Tribunal. Second, because the evidence of each of the three was capable of supporting a finding that the force used by the appellant was excessive and/or unreasonable in all of the relevant circumstances. Third, because the First-tier Tribunal’s conclusion did indeed resolve the issues that it had to resolve. The question is whether that resolution was reached in error of law.

 

30. In relation to the key issue HH Judge Sycamore said:

 

“53. The inference that the First‑tier Tribunal did not consider [Mr B's] statement when considering and drafting its reserved judgment is a strong one. The following factors are relevant: 

(a)   As I observed at paragraph 30, the First‑tier Tribunal bundle provided to the Upper Tribunal did not contain [Mr B']s statement;

(b)  The description by the First‑tier Tribunal of a bundle containing nearly 450 pages when in fact [Mr B's] statement was or should have been at pages 448 to 453;

(c)   The specific references by the First‑tier Tribunal to all of the evidence before it, both oral and written, with the exception of [Mr B's] statement;

(d)  The lack of any evidence to support the Secretary of State’s assertion that the First‑tier Tribunal read the statement during the January 2009 hearing. 

54. In my judgment, having regard to the authorities to which I have referred, a failure to consider at all a particular piece of evidence when reaching a decision is a serious procedural irregularity.  The Upper Tribunal at paragraph 12 said, as I have already indicated:

                                                    i.     "But of course a tribunal is not required to deal with every piece of evidence."

This has the disadvantage of a term which is ambiguous.  Does it mean that it is not required to consider or take account of it? or does it mean that it does not need to refer to all of the evidence in its judgment?  Even if it is not referred to in the judgment, it must still be considered.” 

 

31. I have referred above to the witness statement of 17^th October 2012 from Ms HM of the Treasury Solicitor’s Department. In this statement she indicated that she had attended the first day of the First-tier Tribunal hearing. Mr B was represented by his own separate solicitors, who gave the Treasury Solicitor authority to release Mr B’s statement to the tribunal. She exhibited her own note from the date of the hearing which confirmed that “we provided a copy of [Mr B’s] statement to the Tribunal and the Appellant at the hearing today” and in paragraphs 5 to 7 of her statement she said:

 

“5. I understand that it has been suggested by [the appellant] that [Mr B’s] statement was not considered by the Tribunal and not put in the bundle. I have had the opportunity to consider my hand written note taken contemporaneously at the hearing on 14^th January 2009. At the very start of the hearing in the morning, my note indicates that the parties made submissions to the Tribunal about [Mr B’s] witness statement. My note also indicates that shortly after the start of the hearing, the Chair suggests a short adjournment so that both parties could indicate whether they intended to rely on [Mr B’s] statement. This adjournment took place at 10.40.

 

6. After the short adjournment my handwritten note states “Read through the statement and [the appellant] says he accepts it”.

 

7. My next handwritten note states “We will put this in the bundle”. “

 

32. It does seem from this statement that the First-tier Tribunal was well aware of Mr B’s evidence, although it was not specifically referred to in its statement of reasons.

 

33. In accordance with HH Judge Sycamore’s decision the matter was referred back to the Upper Tribunal (AAC) and on 15^th August 2012 I gave permission to appeal in the following terms:

 

“It is clear from the reasons given by the Administrative Court that permission to appeal should be given, but I note that the Court did not itself grant permission to appeal (still less, determine the appeal). I regard the question of whether to allow the appeal as still open. I note that the decision of the Secretary of State and of the First-tier Tribunal was not based solely on the alleged assault on KG. Neither did the Administrative Court state that the Upper Tribunal “must” direct a full rehearing of the evidence, as asserted by counsel for the appellant in submissions of 13^th August 2012. Meanwhile, of course, the appellant remains on the barred list.”

 

34. On 6^th December 2012 I directed that there be an oral hearing of the appeal to the Upper Tribunal and it is that hearing that took place on 25^th April 2013. It is unfortunate that this has all taken so long, such that it is nearly six years since the matter was referred to the Secretary of State and over four years since it first came before the Upper Tribunal.

 

The Appellant’s Case

 

35. Ms Misra has placed great emphasis on the factual background, the difficulties faced by the appellant during the 1^st September 2007 incident, and the final decision of the Nursing and Midwifery Council. However, none of these matters can show that the decision of the First-tier Tribunal was made in error of law.

 

36. She argued that the treatment of the evidence of Mr B at first instance involved a serious procedural irregularity and, in essence relied on the judgment of HH Judge Sycamore, suggesting that the Secretary of State could not now reopen issues determined by his judgment. However, she accepted that the First-tier Tribunal had adjourned to allow the appellant’s then representative to read Mr B’s written evidence and (my emphasis) that the tribunal stated that it had also read the written evidence at the same time. “There is no live dispute as to whether the statement was read at that time. The question is whether [Mr B’s] statement was considered [her emphasis] when the First-tier Tribunal came to deliberate. This was made clear in the Administrative Court” (paragraph 17 of the Appellant’s observations of 20^th November 2012). The Secretary of State could provide no evidence on the latter matter and the tribunal had a duty to consider the evidence even though nobody called Mr B to give oral evidence. She also challenged the attempt by the Secretary of State to introduce the evidence of Ms HM of the Treasury Solicitor’s Department at such a late stage.

 

The Secretary of State’s Case

 

37. Ms Olley argued that the evidence from Ms HM could not have been introduced much earlier because permission to appeal had been refused at each stage before the matter went to the Administrative Court and the impact of Mr B’s written evidence had not been made the main issue by the appellant at any earlier stage. In any event Mr B’s evidence is not supportive of the appellant’s case, as indicated by the comments of Judge Wikeley on 11^th January 2010, and the appellant chose not to call him to give oral evidence to the First-tier Tribunal. In general terms she defended and relied upon the decision of the First-tier Tribunal.

 

Conclusions

 

38. It is important to appreciate what the Administrative Court did and did not do in this case. It was dealing only with the refusal of the Upper Tribunal to grant permission to appeal to it from the First-tier Tribunal. Everything that it said must be seen in that context and not in the context of considering a substantive appeal from either the First-tier Tribunal (which is within the exclusive jurisdiction of the Upper Tribunal: Tribunals, Courts and Enforcement Act 2007 section 11(1)) or from the Upper Tribunal itself (which in England and Wales lies to the Court of Appeal, not to the High Court or the Administrative Court: section 13(12)). The Administrative Court took the view that there had been an error in the refusal by the Upper Tribunal to grant permission to appeal to it. Had it taken the view that there was only one possible decision that the Upper Tribunal could have made on the application for permission, it could have granted permission itself or mandated the Upper Tribunal to grant permission. It did not do this. However, permission has now been granted by the Upper Tribunal. There is nothing in the Administrative Court’s order that bites on the decision that the Upper Tribunal should make on the substantive appeal in this case (especially as it was based on a mistaken factual assumption), and there is a limit as to how much there could properly have been, in view of the above appeal provisions.

 

39. HH Judge Sycamore proceeded on the mistaken basis that the First-tier Tribunal had not seen Mr B’s written evidence and that is why it had not considered it. In the substantive appeal that is now before me both parties agree that the Upper Tribunal had in fact seen Mr B’s written evidence, so in one sense Ms HM’s evidence is irrelevant. The First-tier Tribunal’s statement of reasons did not explicitly refer to it, so the issue becomes whether it considered it.

 

40. Where a tribunal deliberates in private and gives detailed reasons later, only its members can ever really know what was considered. It is virtually always (and virtually always accurately) assumed that if a matter is specifically referred to in a statement of reasons then it was in fact considered. However, it cannot be assumed that in the absence of a specific reference to it, a matter was not considered. (I say this having been a member, a chair and a judge of various tribunals for 35 years). Judge Wikeley was absolutely correct if he meant to say that a tribunal is not obliged to refer to every single piece of evidence that was placed before it. This is well-established. It was unfortunate that, as pointed out by HH Judge Sycamore, Judge Wikeley used the term “deal with” which could be seen as ambiguous.

 

41. I do not see that Mr B’s written evidence is conclusive one way or another on the key issue that the First-tier Tribunal had to consider in this context, and assumptions cannot be made (as both parties have sought to do) about what else he might have said in oral evidence. The oral evidence that he gave to the Nursing and Midwifery Council some considerable time later cannot be taken into account for this purpose.

 

42. As the First-tier Tribunal did in fact read the written evidence of Mr B, and given what I have said above about its contents, I see no reason at all to suppose that the First-tier Tribunal failed to consider or take account of that written evidence. It certainly cannot be assumed from the contents of the written evidence that the First-tier Tribunal must have failed to take account of it.

 

43. The Secretary of State’s original decision(s) was or were based on several incidents and I have dealt with them above in some detail. Although Ms Misra has challenged in general terms the weight put on the earlier incidents by the First-tier Tribunal, there has been no challenge to the findings of fact in relation to them. If the First-tier Tribunal had been unable to reach a conclusion on the incident of 1^st September 2007 or, indeed, if that incident had never happened, it seems to me that the earlier incidents by themselves would have been enough to justify the appellant being placed on the relevant lists.

 

44. I can only interfere with the decision of the First-tier Tribunal if it got the law or procedure wrong. In the case I am not persuaded that it did so. For the above reasons this appeal does not succeed.

 

 

 

H. Levenson

Judge of the Upper Tribunal

16^th July 2013