Quallo v Secretary of State for Education and Skills [2003] EWCST 213(PC) (13 February 2004)

  				DARREN MARK QUALLO                           
v.
SECRETARY OF STATE FOR EDUCATION AND SKILLS
Application No: [2003] 213.PC

Mr. A. Lindqvist (Chairman)
Mr. R. Radley
Ms. M. Martin

5 February 2004

The appellant, Mr. Darren Mark Quallo appeals under section 4(1)(a) of the Protection of Children Act 1999 against the decision by the respondent Secretary of State for Education and Skills to include him in the list, kept by the respondent under section 1 of the Act, of individuals who are considered unsuitable to work with children.

The appeal arises out of  two incidents at Tudor Lodge, a care home for children, on the 8th July 2002, as a result of which the appellant was suspended from his child care post by his employer, Janine's Recruitment Team Ltd and was referred to the Secretary of State under section 2(2)(d) of the Act. The Secretary of State decided on the 30th September 2002 provisionally to include the appellant in the list and, having considered written representations from the appellant, confirmed his inclusion in the list on the 11th August 2003. The appellant appealed by a notice dated the 14th August 2003, the Secretary of State indicated his opposition to the appeal in an undated response, the appellant submitted further information on the 28th October and the respondent did likewise on the 31st October. Directions as to the filing and exchange of written statements and other documents were given by His Honour Judge David Pearl on the 3rd, 4th and 12th November and 8th December 2003. The latter direction related to disclosure of the interviews and medical records of and other information relating to three complainants.

The appeal was heard on the 5th February 2004, the appellant represented himself with the assistance of Mr. A. Harris, operations manager of Janine's Recruitment Team Ltd, the respondent was represented by Miss Karen Steyn of counsel. The respondent adduced no oral evidence, but relied on witness statements of Sarai Burke and Iain Terry, contemporary incident reports compiled by each of them and on records of reports made on the 9th July 2002 by EM, LP, CL and MC, residents at Tudor Lodge, the latter being the three complainants referred to above. The Tribunal heard the oral evidence of the appellant, read his statement of the 24th August 2002, saw the video-taped interviews of CL and MC by D.C. Susan Lister and read her interview of the appellant on the 29th August 2002.

The issue before the Tribunal can be simply stated; under section 4(3) of the Act the Tribunal must decide whether it is satisfied on the balance of probability that the appellant was guilty of misconduct which harmed a child or placed a child at risk of harm and that the appellant is unsuitable to work with children. If the Tribunal is not satisfied of both, the appeal must be allowed, otherwise it must be dismissed.

Tudor Lodge is a residential home in Purley, Surrey, for disturbed adolescents. Some are also educated there by teachers who come to the premises for the purpose, a minority of the residents go out to school. The three boys involved in the two incidents of the 8th July 2002 were all being educated at Tudor Lodge. The first incident involved CL and MC and, according to the appellant, happened during the morning. The two boys, then respectively 14 and 12 years old, were playing with plasticine, rather too exuberantly; they were throwing it at each other and at the appellant and took no notice when he asked them to stop. The appellant then took hold of MC's right arm and took the plasticine away from him. MC was later found to have two bruises each the size of a 2p piece on his right arm.

The second incident occurred at about 6 or 7 p.m. on the 8th July. The appellant was watching the news on television when LP, a 14 year old resident, came in to the room, wishing to watch a video tape which he had brought with him, apparently of boxing. The appellant told LP that he could watch his video tape when the news had finished, but he immediately put his tape into the recorder, obliterating the news broadcast which the appellant was watching. The appellant removed the tape and returned to his chair which was by the door. LP then opened the door (he said he kicked it), banging it onto the appellant's chair and hitting the appellant with it. When the appellant got up, LP went into the nearby piano room, where, as it happened, two social workers, Iain Terry and Sarai Burke were talking to CL and MC about the earlier incident. LP closed the door to the piano room behind him and would not admit the appellant who was banging on the door demanding to be let in. When he got in, the verbal altercation continued and soon degenerated into physical contact. The appellant seized LP by his clothing and fearing violence (though much younger, LP is of about the same size as the appellant), held him in a headlock. Urged by the social workers to release his grip, the appellant did so and LP ran at him with a chair, so the appellant again restrained him in a similar way, manoeuvring him into a prone position on a sofa. Iain Terry and Sarai Burke again prevailed upon the appellant to release his hold and he did so, this time without further violence, and left the room. LP was later found to have scratches on his neck and a bruise on his left ear lobe.

There are some minor differences in the accounts of those incidents. MC, the 12 year old involved in the plasticine incident, said that the appellant grabbed his arm and squeezed it really hard, he also said that the appellant slapped his right leg and said that next time it would be his fist. CL, the 14 year old, said that the appellant, having taken the plasticine from MC, came over to him, took his plasticine away and kicked him on his right leg, but did not cause any bruising. MC also said that the appellant kicked CL's right leg and added that, at the end of the incident, the appellant got hold of the back of the neck of his (MC's) jumper, pulled him up by it and told him he should start to behave. There were no adult witnesses, other than the appellant, to the plasticine incident, nor to the first part of the video incident. In his statement of complaint, LP admitted inserting his video tape while the appellant was watching the news. He said that the appellant then kicked him out of the way and threatened him with his fist and with abusive language before removing the video tape. He said that he kicked the door causing it to hit the appellant's chair as he left the room to go to the piano room. He did not mention barring the appellant's way into the piano room but said that once the appellant got in he grabbed him and held him against a window, while he, LP, calmly asked to be released. He struggled and hit out at the appellant who put him into a headlock, squeezing tightly so that he found it difficult to breathe.  Eventually he managed to struggle free. CL and MC did not describe the video incident in their statements of complaint, though both mention it and CL said he found it upsetting. EM said that the appellant pushed LP against a window while holding him round his neck and later put him in a headlock and squeezed tightly. She described LP as extremely agitated and upset. Sarai Burke said in her witness statement that when she entered the piano room the appellant had hold of LP's top clothing and was holding him at arm's length away from him, asking for an apology. They were both shouting, LP was asking to be released. She and Iain Terry pleaded with the appellant and LP to calm down. She recalled two occasions on which LP threw a chair at the appellant, but was not sure of the sequence of events. In her incident report she also recalled the headlock and the appellant restraining LP on the sofa. Iain Terry in his witness statement said that he heard LP laughing, then he came into the piano room and held the door against the appellant who was trying to follow him. Iain Terry then told LP, who was still laughing, to leave the door, he did so and the appellant came in. There was some shouting and the appellant grabbed LP's clothing. He tried to get the appellant to let go, LP tried to hit the appellant, then threw a chair at him. The appellant got LP in a headlock, holding him down on a sofa. Both social workers tried to get the appellant to loose his grip, but when he did so, LP got another chair so the appellant got hold of him again. In the end the appellant let go and left the room. Iain Terry's incident report is to much the same effect.

For different reasons, the Tribunal was cautious about all of that evidence. A report by a consultant psychiatrist described LP as one who has been observed to make up stories. CL and MC in their video interviews both indicated MC's left arm as the one which the appellant held, whereas it was in reality his right arm. They were accompanied at that interview by Iain Terry, who was also a witness to the later events, they might have found it easier to give their accounts if they had been accompanied by someone not involved at all. EM made only a brief statement of complaint from which it is not clear how much she actually observed. It is also not clear how much prompting was required to obtain the statements of complaint; it did take a certain amount of sensitive (and perfectly proper) questioning by D.C. Lister to elicit the boys' accounts in the video interviews. The appellant himself appeared inclined to minimise his part, in the notice of appeal he denied that he had been interviewed by the police in relation to the matter, but there is a transcript of an interview with D.C. Lister and D.C. Bridges on the 29th August 2002. His account of the incidents in his letter containing his written representations of the 19th February 2003 lacks detail and is incomplete. The Tribunal was inclined to regard Iain Terry as the most reliable witness to the events of that unfortunate evening, but in any event did not consider the details of what occurred to be of essential importance.

It is plain that Tudor Lodge offers a home to some very disturbed children, who can be, without doubt, very difficult to manage. The medical reports and other documents about the three boys involved in these incidents made it clear that they all exhibit challenging behaviour, perhaps none more so than LP, who was described in a psychiatric report - Dr. Jenny Walker's report of the 5th September 2002 - as having "longstanding behavioural problems", being "physically aggressive towards staff", "deliberately antagonising" his peers and generally manipulative. Dr. Walker said that it had become increasingly difficult to set limits and boundaries for Liam because of concerns that this would result in either assault or self-harm. It was also apparent that the appellant had had very little training in dealing with these difficult children and what little he had had was by way of friendly informal advice from colleagues rather than any actual instruction. Moreover he had never seen a care plan for LP though he imagined that there must have been one; he implied that, as agency staff, he would not see such things. The evidence gave the Tribunal the impression that agency staff, even of the appellant's length of service at Tudor Lodge, were regarded as temporary and were not seen as full members of the caring team.

The 8th July 2002 was a bad day for the appellant, he was coping with a bereavement, making funeral arrangements and at the same time was moving house. The previous day, July 7th, was his birthday, though any effect of the anniversary is not recorded. The Tribunal is unable to find much to criticise in the appellant's handling of the plasticine incident, it is not satisfied on the balance of probabilities that he kicked CL though he did shout at both boys and grabbed MC's right arm while he took away the plasticine. The Tribunal is not satisfied that he slapped MC or made any threat to punch him with his fist. There was harm to MC in the form of the two small bruises on his arm but it was minimal. At the end of the video interview MC said that he was not really upset by the incident and that it was not normal behaviour for Deon (as the appellant was known at Tudor Lodge). The Tribunal agreed with the appellant's comment that if the video incident had not happened the plasticine incident would not have achieved the prominence it did.

As for the video incident, the Tribunal finds that it began with an example of LP's antagonistic and provocative behaviour in taking over the television to watch his video while the appellant was watching the news. The appellant is not to be criticised for objecting and removing the video tape. LP continued by banging the door either once or more than once into the appellant's chair and then went into the piano room. In the Tribunal's view the appellant is to be criticised for following him. LP was obviously in a temper, there were two other staff members in the piano room and it would have been much more sensible to let them deal with him. By following he could only make the situation worse, as in the event, he did. His pursuit of an apology was ill-advised. To his credit he eventually heeded his colleagues' advice to release LP and the incident, (the details of which it is not necessary to examine further), ended. The appellant should have brought it to an end much earlier by not going into the piano room; it would have been wiser to leave LP to calm down and deal with him later. The appellant admitted that he could have handled things better and said that he would deal with such a situation differently, should it arise in the future.

The Tribunal finds that the appellant's pursuit of LP into the piano room amounted to misconduct. It is not satisfied that holding MC's arm was, in the circumstances, misconduct. There was harm to LP in the form of a small bruise to his left ear lobe: the Tribunal was not satisfied that the scratches to his neck were caused in the video incident, there was no evidence of anything likely to have caused a scratch, according to the doctor's sketch the scratches were almost vertical whereas scratches caused by grasping someone's neck would perhaps be more likely to be horizontal and LP's medical records disclose unrelated scratches less than a month earlier, on the 12th June. However, a bruised ear lobe is harm, if only minimal harm, so technically, at least, the Tribunal must pronounce itself satisfied under section 4(3)(a) of the Act. The Tribunal did not find that any of the children involved in either incident was at risk of any physical harm significantly beyond that which actually occurred.

Is the appellant unsuitable to work with children?  He has been a residential social worker for some eight years, working with children for the last four or five years. Not only has there been no previous complaint about him, he had been working at Tudor Lodge, albeit as agency staff, for quite a long time and had been offered a full-time post there, which suggests a measure of approval. He was assisted in his appeal by the Operations Manager of Janine's Recruitment Ltd, his employer at the material time, which must be seen as an indication of the company's view of the appellant's qualities. MC said in his video interview that he generally got on well with Deon (the appellant) and that the two incidents were not typical. It seemed to the Tribunal that the 8th July 2002 was a particularly bad day for the appellant in the sense that he probably arrived at work in ill-humour and irritable, maybe as a result of birthday celebrations, maybe because of the stresses on him at that particular time, maybe there were other factors. For whatever reason, the appellant on that morning was well below his best in coping with the challenging behaviour of the residents of Tudor Lodge. His difficulty was compounded by a total lack of any formal training or instruction; in particular it is both surprising and alarming that he had never been shown care plans, behavioural programmes or the like, to indicate in relation to each resident what the carers had to deal with and how they should manage difficult situations. The social workers, Sarai Burke in particular, evidently told the appellant about Tudor Lodge's "no restraint" policy when the incident with LP was in its later stages. It was not wholly clear to the Tribunal and was obviously not clear to the appellant precisely what a "no restraint" policy entails, since restraint may be necessary and unavoidable, for example where serious danger to staff or residents is likely. Whatever that policy is or was, it should have been explained to the appellant when he took up his duties at Tudor Lodge; such instruction as he was given (it seems to have been exiguous in the extreme) was totally inadequate. In those circumstances the fact that the appellant's performance fell below par on one particular day does not, in the view of the Tribunal make him unsuitable to work with children. The Tribunal is not satisfied under section 4(3)(b) of the Act, accordingly the appellant's appeal must be allowed. The findings of the Tribunal are in every instance unanimous; the Tribunal accordingly directs that the name of the appellant Darren Mark Quallo (also known as Deon Quallo) be removed forthwith from the list of individuals, kept by the Secretary of State under section 1 of the Act, who are considered unsuitable to work with children. 

Andrew Lindqvist
Ronald Radley
Marilyn Martin
Date: 13 February 2004