Alabi v Secretary of State for Education and Skills [2004] EWCST 0339 (PC) (18 March 2005)

ALEXANDER ALABI

-v-

SECRETARY OF STATE FOR

[2004] 0339.PC

Before

Mr. Simon Oliver (Chairman)
Ms Wendy Stafford
Mr. Jim Lim

Sitting at 18 Pocock Street, London on 17th February 2005

DECISION

Application

1.	Mr. Alabi (‘the applicant’) appeals under Section 4 of the Protection of Children Act and Regulation 1 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 against a decision by the Secretary of State pursuant to Section 2 of the Protection of Children Act 1999 to include him on the Protection of Children Act List.

Appearances

2.	Mr. Sherland of Counsel, instructed by the Treasury Solicitor, represented the Secretary of State. Ms Ricketts, a solicitor with the Department for Work and Pensions, Mr. Harrison of the Protection of Children Act team and Mr. Weller of the Commission of Social Care Inspection were present.   Miss Sharon Lewis and Mr Wendy John gave evidence on behalf of the Secretary of State.  Mr. Alabi represented himself and called Mr. Nwokocha to give evidence on his behalf.

Background

3.	Mr. Alabi was born on 16th November 1977 and so is now aged 27 years.  He was employed by the London Link Project (‘LLP’) on 6th November 2002.   LLP is a small care home owned by Ms John and provides longer term care for looked after and vulnerable young people aged between 13 and 18 years of age.

4.	On 3rd August 2003, Mr. Alabi was on duty on a 3.00pm to 11.00 pm shift.  This required him to sleep in overnight, for which an additional allowance was payable.  Mr. Alabi was supposed to be on duty with Ms Simmonds but she was unwell and was unable to work that evening.  To whom Ms Simmonds reported that she was unwell, when she reported it and what steps were required to be taken by an individual who had been informed by Ms Simmonds, were in dispute between the parties.  It is trite to say that had Ms Simmonds been at work the incident would not have happened.  It is not trite to say, however, that had there been a clear and known process for informing those who needed to know that an individual was unwell, Mr. Alabi might not have been alone on the evening of 3rd August 2003.

5.	On 3rd August 2003, Mr. Alabi received a telephone call at about 22.50.  As a result, he decided he had to go home, knowing that this would leave the unit unsupervised for a period of time.  As was required, at 11.00 pm, Mr. Alabi called in the two residents, S and D, from outside and told them to go to bed, which they did.  D fell asleep quickly, although S, whom Mr. Alabi describes as having “deviant behaviour”, remained awake.   Mr. Alabi then closed the kitchen, switched off all the electrical appliances (the switches are in the office) and locked the office door.  He left soon afterwards.

6.	At 23.07, S set off the fire alarm, causing the police and fire brigade to attend.  They tried to locate the staff member on duty, only to find that he (Mr. Alabi) had left the building, leaving the young men unsupervised.

7.	The police and fire-fighters broke into the office and found the telephone number of the staff team.  Two unsuccessful calls were made.   As a result of the police being able to contact Ms Tingle (a senior residential social worker) Ms Thomas (the care manager) and Mr. Thomas attended the unit.  Mr. Alabi returned to the unit at about 03.56 and was told that a disciplinary meeting would be convened on the following morning.

8.	On 4th August 2003, a disciplinary meeting was attended by Mr. Alabi, Mr. John and Ms Thomas, at the end of which, Mr. Alabi was dismissed with immediate effect.  On 8th August 2003, Ms Thomas wrote to the Protection of Children Act team informing them of what had happened.

9.	By coincidence, LLP was inspected by Ms Sharon Lewis of the National Commission for Social Care on 1st and 4th August 2003.  Her report formed part of the evidence before the Tribunal and this incident is referred to in respect of Standard 30. In her evidence to the tribunal she commented that she was unsure whether Mr. Alabi’s behaviour on this one occasion made him unsuitable to work with children in the future. She definitely questioned his suitability to work with children in a 24 hour care setting because of his poor judgment in these circumstances.

10.	On 4th September 2003, Mr. Alabi was informed by the Secretary of State that he was provisionally listed on the Protection of Children Act List (‘POCAL’) whilst the Secretary of State made further enquiries.  On 3rd March 2004, the Secretary of State confirmed that Mr. Alabi’s name was on the POCAL, which became effective on 7th April 2004.  Mr. Alabi lodged his appeal on 5th July 2004.

Legal Framework

11.	By virtue of Section 4 of the Protection of Children Act the Tribunal has to allow an appeal unless it is satisfied of two matters:  first that the individual was guilty of misconduct which harmed a child or placed a child at risk of harm and, second, that the individual is unsuitable to work with children.  It is widely accepted that the first limb refers to the position at the time of the incident, whereas the second limb refers to the situation at the time of the Tribunal hearing.

Conclusions

12.	Mr. Alabi accepted in his evidence to us that what he did was misconduct and so that is not in dispute. The sole question we need to determine, therefore, is whether Mr. Alabi is unsuitable to work with children. It is difficult to be precise as to what is meant by ‘unsuitable’. Mr Alabi told us that he has learnt the lesson and that it will not happen again, that it was an isolated incident and that he had received little or no training on the importance of not leaving the residents alone at night.

13. 	We accept that Mr. Alabi might have learnt his lesson and from studying the list of topics covered in the initial induction we are concerned that insufficient attention was given to instilling in staff the importance of not leaving LLP residents alone at night for whatever reason. However, in listening to Mr. Alabi give his evidence we came to the conclusion that he did not fully understand his role and responsibilities. Although part of this might have been as a result of an apparently superficial induction and training, we note that Mr. Alabi’s probationary period was extended as he did not sufficiently meet the criteria.

14. 	We have come to the conclusion that Mr. Alabi simply did not and does not comprehend the nature of the risk to vulnerable young people his actions have caused and that to prioritise his own needs was a singularly bad lack of judgment, not least of all because he knew that he was breaking the rules.

15.	Whilst we accept what Mr. Alabi says about learning his lesson, we have no evidence before us to demonstrate that he has learnt from his mistakes. It is that, coupled with our conclusion that we believe from what we heard that Mr. Alabi still seems to be unable to grasp or understand the harm or probable harm his actions could have caused that gives us cause for concern and leads us to conclude that Mr. Alabi is still unsuitable to work with children. We do not believe that Mr. Alabi has understood the connection between his behaviour on that night the possible consequences. We believe that if the situation was to arise again, Mr. Alabi would weigh up the chances of getting found out and act accordingly, not appreciating that the risk in the situation is not whether or not he gets found out but whether or not the young people he is supposed to be managing are placed at risk.

16. 	We regard this apparent lack of insight as so basic a matter that it cannot be ignored or ameliorated by the belief that the lesson has been learnt or that it was as a result of a lack of training. This cannot be resolved by training and if the lesson was truly learnt Mr. Alabi would have insight into the risks that his actions were causing. We believe that although the receipt of information through introductory training might have helped, the important feature missing here is the assimilation and understanding by Mr. Alabi of how what he has been told influences his behaviour.

17.	We are equally concerned that Mr. Alabi’s reflected knowledge of risk does not appear to have changed his attitude to this matter. Mr. Alabi was still talking during the hearing about the fact that there was no grave risk to the residents and seemed to be perceiving the risk in a wider (as in physical injury) sense rather than in the specific risk of harm context. Mr Alabi appeared to us to think that risk should be seen in a subjective way (as in what harm was actually caused) rather than an objective way.

18.	The issue of training took up a considerable amount of the hearing. We are concerned about the framework and delivery of training undertaken at LLP. We feel that is should be more structured, systematic and detailed. There appears to be no training plan, for example. Since workers were studying the NVQ this omission might be important. We felt that the induction procedure was inadequate to enable staff to develop the appropriate capability to undertake the tasks they were required to do. For example, although we were given a list of 51 items said to be part of the induction plan, we had no evidence of them being addressed with Mr. Alabi by way of a check-list of completed matters or a plan or programme to work through them.

19.	We felt that Mr. Alabi’s failure to attend the training offered by the NSPCC made no difference to his actions on 3rd August 2003. Mr. Alabi clearly appreciated the need for training and training opportunities but he recognised, as do we, that he needed more training earlier in his employment to equip him better for his role. Given the concerns we have expressed, we disappointed that Ms. Thomas’ health prevented her from attending the hearing.

20.	Whilst we have come to the conclusion that Mr. Alabi is not suitable to work with children, we are acutely aware that the legislation does not differentiate between Mr. Alabi and someone who has committed a serious sexual offence. We recognise that the consequences of dismissing Mr. Alabi’s appeal will be serious for him. However there is nothing that we can do about that – inclusion on the POCA List is not sophisticated. One is either included or one is not. There are no degrees of prohibition as can occur, for example, in education cases under section 142 Education Act 2002. Had we been able to specify terms of prohibition we would have considered (like Ms Lewis) that Mr. Alabi was not suitable to work with children in a supervisory role or in a 24 hour setting or working alone. However, we cannot specify such terms. Having found that Mr. Alabi is currently unsuitable to work with children we have no alternative but to dismiss his appeal.

Order

We dismiss this appeal

This decision was unanimous.

Dated the 18th day of March 2005

Signed:
Simon Oliver, Chairman
Wendy Stafford
Jim Lim