AG v The Secretary of State [2005] EWCST 603(PC) (08 December 2006) 
 Schedule 4 cases: Protection of Children Act List and Prohibition from teaching and working in schools - Inclusion on PoCA list

CARE STANDARDS TRIBUNAL DECISION

AG

-v-

SECRETARY OF STATE

2005 603 PC 
    2005 604 PVA

Before:

Miss Helen Clarke, (Nominated Chairman)
Ms Bridget Graham
Mr John Williams

Heard on November 20th, 21st and 22nd   2006 at The Care Standards Tribunal (the CST), 18 Pocock Street, London SE1 OBW.

For the Appellant.
The Appellant appeared in person and represented himself.

For the Respondent.
Mr P Coppel of Counsel instructed by Treasury Solicitor.

Decision

1. 	The Appellant appeals the two decisions of the Respondent contained in a letter to the Appellant dated September 1st 2005 (the Decision Letter).   Firstly (the first Appeal) to confirm him on the Protection of Children Act list (the POCA list) and secondly (the second Appeal) to confirm him on the Protection of Vulnerable Adults list (the POVA list).

2.	The Decision Letter also notified the Appellant that the effect of inclusion on the POVA list also meant that the Appellant would not be able to carry out work to which S 142 of the Education Act 2002 applies and that his name had been added to the Education List.

3.	A direction was made under Regulation 8 the Protection of Children and Vulnerable Adults under the Care Standards Tribunal Regulations 2002 (the Regulations) on March 29th 2006 by the President of the CST, His Honour Judge Pearl, that both the First and the Second Appeal would be heard together.  There were further subsequent directions hearings concerning the disclosure of the NSPCC report on the Oaks Centre which was commissioned by Surrey County Council.   At a directions hearing dated June 8th 2006 the President directed that member of the press and members of the public were excluded from all of the hearings and that there would be a Restricted Reporting Order made under Regulation 18 of the Regulations and that the decision will be published in an edited form in accordance with Regulation 27 of the Regulations.

4.	The  Tribunal reaffirmed  on the  first  day  of the hearing  that  the   Restricted  Reporting Order  would  continue at the conclusion of the hearing and that the  decision  of the  Tribunal  will be published in an edited form in accordance with Regulation 27.

5.	The Tribunal heard evidence on behalf of the Respondent from KR who was employed by SES Care and Consultancy Limited (“SES”).   The Tribunal also heard telephone evidence from (SF) who is employed by the Commission for Social Care and Inspection (CSCI) as a manager for the Regulation of Children’s Services in Surrey.
 
6.	The Appellant gave evidence but called no witnesses.

7.	The written statements, correspondence and other documents filed by both parties with the CST have been collated into one paginated bundle (the Tribunal Bundle).  In addition to the Tribunal Bundle which was prepared in advance of the hearing the following additional documentation was considered by the Tribunal:

(i)	A letter dated October 7th 2002 from the Appellant to The National Care Standards Commission (NCSC).
(ii)	The Respondent’s opening submissions (14 pages).

8.	In both the Appeals the burden of proof rests on the Respondent.  The standard of proof is the civil standard, namely on the balance of probabilities as defined in Re H 1996 AC 563.

9.	The First Appeal (the POCA Appeal) is brought under the Protection of Children Act 1999 (POCA 1999) S4 (3) which requires that the Tribunal is satisfied on the balance of probabilities:

(i)	That the individual was guilty of misconduct (whether or not in the course of his duties) which harmed a child or placed a child at risk of harm and
(ii)	That the individual is unsuitable to work with children.

10.	The Second Appeal (the POVA Appeal) is brought under S 86(3) of the Care Standards Act 2000 (CSA 2000) which requires:

(a)	That the individual was guilty of misconduct (whether or not in the course of his duty) which harmed or placed at risk of harm a vulnerable adult and
(b)	That the individual is unsuitable to work with vulnerable adults.

Background Information

11.	The Appellant worked as an  unqualified  care worker  during the 1980’s at the Oaks Centre, Woking and subsequently for different local authorities  and  became a   qualified social  worker  after obtaining a diploma in social work  from the University of Greenwich in 1997.  In 2002 the Appellant was appointed as the Operations Manager for management of four registered children’s homes owned by S.E.S. The directors of S.E.S. were AS and TH.

12. 	At a meeting on October 4th 2002 attended by the Appellant, AS and staff from the NCSC it was disclosed that a former resident of the Oaks Centre, Woking, had made allegations about AS and that the matter was now the subject of a Child Protection Procedure and would be investigated under the terms of S 47 of the Children Act 1989 by the NSPCC.   

13.	Following this disclosure the Appellant wrote a letter to the NCSC  dated October 7th 2002 (October 7th letter) in which he specified that in his daily tasks AS never has unsupervised access to young people.  Because of the nature of the placements most young people are subject to one to one or two to one supervision by staff and the high staff ratio means that no young person would or could be left unsupervised.

Having reviewed AS’s role and duties in the light of the allegations I see no reason why he should not carry them out in the usual fashion.   However, as an additional protection for him and our residents AS has agreed to inform me personally prior to any visit to one of our establishments and this is noted in the central diary.

14.	Whilst  the   Appellant  was  employed by S.E.S. it was decided  that a bank of  care staff would be established to provide additional staff for times  when  there were gaps in the  staff rotas of the  permanent staff  employed by SES. The Appellant was involved in the interview process, the screening process for potential new  recruits and   was responsible for creating the list of additional care staff who were to be used by  S.E.S. Some of these additional  recruits  were provided by a  staff agency  called  DGL Services, as direct recruitment  through local advertisements  had  not  been very successful.

15.	During 2003 a number of children were placed in unregistered premises including a caravan and a holiday cottage for periods in excess of 28 days (The Children Act 2001 reg 3(1) (b) (i) provides that any establishment which provides accommodation for children for less than 28 days in a 12 month period. On July 31st  2003  staff from CSCI  made an un-scheduled inspection  of the flat at 47 Willow Way, Woking ( Willow Way ), which was owned by SES but was not registered under the Care Standards Act 2002  where they  discovered it had been used  to house  children. After  further  inquiries and  investigation   CSCI discovered that two caravans at  Bunn Leisure Caravan Park  Selsey,West Sussex and a cottage in Dolgellau, North  Wales had been used to house children for periods of time in  excess of  the 28 day period  permitted ,  and that  none of these premises were registered as children’s  homes.

16.	After further investigation the  registration certificates of the four registered  homes operated by SES, namely “Rose Hill”, 146 Mayberry Road, Woking,  Surrey (Rose Hill), Grove Lodge, 126 Stoughton Road, Guildford, Surrey (Grove Lodge), 40 Monument Road, Mayberry, Woking(49 Monument Road) and 51 Monument Road,  Mayberry, Woking, Surrey (51 Monument Road) were all cancelled. The Appellant, AS, TH and KR were all referred to the POCA and POVA lists.

17.	The Respondent in the information form provided to the Tribunal listed eight grounds of misconduct by the Appellant (Tribunal Bundle Tab 1, page 32) and these can be summarised as follows:

(i)	That the Appellant had assured the NCSC that as from October 7th 2002 AS would not be permitted unsupervised access to vulnerable children but that the Appellant had failed to ensure that AS was not permitted unsupervised access and as a result the Appellant had exposed the children in the care of SES to a risk of harm.
(ii)	That the Appellant, who was the operations manager at SES and had responsibility for the staff, had failed to take adequate disciplinary measures against a member of staff known as DS for conduct harming a child.
(iii)	Between September 2002 and October 2003 the Appellant had failed to prevent, investigate or discipline staff who had made inappropriate references to children, had used excessive restraint on children, had tied up one of those children during restraint and had made inappropriate verbal remarks to the children in the care of SES.
(iv) (v) and (vi)  The Appellant whilst employed by SES as the operations manager of the homes had knowingly or recklessly permitted vulnerable children placed in the care of SES to be accommodated in premises which were neither registered nor suitable for that purpose.
  (vii) 	Between 2002 and 2003 the Appellant had allowed unqualified people to be in charge of the vulnerable children in the care of SES and that this had placed a child or children at risk of harm.
(viii)	There was an allegation that the Appellant had been involved in an incident in June 1988 which resulted in the assault of a child at the Oaks Centre, Surrey.

18.	At the commencement of the proceedings and in the closing submissions Counsel submitted no evidence to support the confirmation for listing on the POVA list and as a consequence the burden of proof has not been met.

Evidence 

19.	In her oral evidence KR described the open plan office where she worked with the Appellant together with other administrative staff.   KR stated that she was responsible for the financial administration of SES and she acknowledged that the directors of SES, AS and TH, were not interested in the paperwork.
KR was asked about the procedure for  the referral and  placement of children in the SES  homes and she stated that the placements were made directly with TH and that the Appellant  did not have direct  contact with the  Local Authority social workers who were making the placements, although the Appellant would  be informed about the  placement once it had been agreed. KR acknowledged that there were tensions between the Appellant and TH concerning some of the placements that were made.

20.	 KR explained that the decision to try and sell SES was made immediately after the allegations were made against AS (KR’s long term partner) in October 2002.   In preparation for the sale  of the business SES was trying to expand the number of  homes and that is why SES  had continued with the  purchase of Willow Way and other property after the allegation against  AS were made  in 2002.

21.	 KR stated that the time sheets from the staff including the unregistered homes were faxed direct to her and any further information from the unregistered properties was verified by another member of staff, GL.    KR specifically confirmed that the staff time sheets were not copied to the Appellant. KR acknowledged that when the Appellant had originally joined SES the family of the directors AS and TH had socialised with the Appellant and his family every Wednesday evening for several months.  When asked why the socialising had ended KR could give no reason or explanation.

22. KR   said that the unregistered homes had been used for placements    because of the delay by CSCI in the processing of the SES   application to run a new home to be known as The Rowans. SES  were trying to employ the  staff who had been taken on in anticipation of the registration of The Rowans  and that the placement  of  children  in the   unregistered  accommodation   was  intended to be on a temporary basis.   KR said  that  the holiday placements were not kept secret from anyone  but when specifically asked about  the Appellant’s  role she  confirmed  that he  was  not  involved in the  unregistered  homes and did not  sign any incident reports for the unregistered properties; it was TH who dealt with the placements and who went down every other day to check on the caravans.

Miss S F’s Evidence

23.	SF gave her evidence via a telephone as she was unable to attend the hearing owing to ill – health. The Appellant had  raised an objection  when this proposal was originally  mooted prior to the  hearing  and   following a  telephone conference between  the parties  on November 14th 2006 to consider the matter, it was decided that the evidence would be heard by telephone but subject  to the proviso that if it proved impossible to actually conduct the cross-examination the Appellant  would have the opportunity to renew his application for an adjournment.

Counsel opened the proceedings and verified the identity of SF and confirmed the contents of her witness statement were still correct but then raised no further questions with SF.

24. The Appellant cross-examined SF on apparent inaccuracies in the note of the meeting which took place between the Appellant, SF and MH on October 3rd 2003 (Tribunal Bundle Tab 7, page 43).  SF said the notes had been taken contemporaneously, however under cross- examination she was unable to explain the meaning of some of statements which purportedly were made by the Appellant.

 25.	SF stated that CSCI had also had concerns about the registered homes, in particular the “huge number of restraints” and about the lack of staff training. SF acknowledged that the Appellant had provided her with a training plan and that the Appellant had sent specific notifications to CSCI during the period under review.
SF stated that she was not criticising the TCI ( Therapeutic  Crisis  Intervention) training itself but  she was  concerned about the  number of  staff  working in  the  registered  homes  who had not been  trained in dealing with challenging  behaviour .SF  expressed  concern about  the number of  restraints that occurred  and in particular SF was concerned about a restraint involving a   young  person  ( AC)  being held  face down on a bed on a duvet.
When referred by the Appellant as to the reference in the Inspection Report of August 2003 that there were no patterns of restraint, SF stated that she had subsequently disciplined the Inspector about the comment.

26.	SF stated that the Appellant   should have pressed the  disciplinary  panel to  make a  finding of gross misconduct against a member of the  SES  staff  known as  DS in respect  of an alleged assault by  DS against a  young person AC  and that when the  disciplinary panel  subsequently  downgraded the matter  to serious   misconduct, the Appellant   should have  immediately referred the matter to CSCI  if he was dissatisfied  with the decision.
 The Appellant’s Evidence 

27.	The Appellant made a formal statement to the Tribunal and also referred to his written statement dated October 24th 2006. The Appellant stated that at the time of the October 7th 2002 letter he had been confident that AS would report to him prior to planning any visit to an SES home.  The Appellant stated that at no time had he been given the impression that CSCI required a supervised reporting regime for AS and that there had been no feedback from CSCI   that a more robust form of procedure was required.

28.	The Appellant stated that the young people placed in the SES homes often had a previous history of assaults and violence both in respect of other children and against the staff caring for them and that two of the young people at Rose Hill were very disturbed.

A programme of staff training had been instigated by the Appellant but he had found it difficult to obtain a suitable training course, however had eventually chosen TCI which involved a five day course. A rolling training programme began in April 2003 and staff were trained in April 2003, July 2003 and April 2004, the order of staff based on priority of need.

29.	The Appellant said that by January 2004 positive remarks were made by inspectors about the use of restraints, although he acknowledged that there had been concerns about restraints in early 2003 but that as more training had occurred the incidents of restraint had reduced.

30.	 The Appellant  stated that he had became aware of the holiday placement of a  child known as  AA in June 2003 and  raised  the matter  with  AS about the placement, who had assured the Appellant  that the placement would end within the holiday period. The Appellant claimed that he was not aware at that time of any other young persons placed in the caravans or at the flat at Willow Way.   
The Appellant  explained in detail the process by which  the young  person  known as JG was  referred to SES  and made  it  clear that he  had  been  under the impression that JG was in hospital and the Appellant was unaware of arrangements being made by TH to offer a place at the unregistered premises at Willow Way.  The Appellant claimed that he only became aware of the placement of JG at Willow Way after CSCI visited on the 31st July 2003.
The Appellant specifically denied being aware prior to July 31st 2003 that TH’s cottage in Wales was being used to accommodate young people.

31.	AG acknowledged that after he became aware that AA had been allowed to  remain  at  the caravan at  Selsey  for longer  than  the  28  day holiday  permitted   he should, he realised, with hindsight have reported  the matter to CSCI. However, he felt he was compromised because he had not been involved in the placement and as it was outside of the registered units he felt it was impossible for him to report the matter to CSCI.

 32.	The Appellant said that with regard to the disciplinary proceedings of DS he had carefully taken statements, gathered information and done a thorough investigation of the matter.  When the original allegation had been made against DS he had immediately referred her to POCA and had suspended her from work. At DS’s disciplinary hearing he claimed that he had pressed for her dismissal on the grounds of gross misconduct.

33.	The Appellant denied ever deliberately assaulting any child and that the matter related to in the NSPCC report on the Oaks Centre was an unsubstantiated spurious allegation which had not been properly investigated.

34.	Under cross examination  from  Counsel  about  the statements from workers at the caravans which  stated  that AS had visited the caravans, the Appellant  said  that although  AS had said that he had not visited the children; and  KR had also  stated that AS had not had  unsupervised access,  he  did not now know  what to believe.

35.	 Under cross-examination the Appellant  disclosed  that  SES  had given a specific promise on behalf of TH  AS  and the  Appellant  that they would no longer visit any of the premises where  any children were based and this is corroborated by a letter dated January 2nd 2004 from Griffiths Robertson, solicitors ( the Tribunal Bundle tab 7/page 111 ) which refers to the following condition:

“Without prejudice the following senior management employees of the providers shall not have access to the premises of name of home, (i.e. Grove Lodge) until further notice, AS, AH and AG.”

The letter from CSCI indicated that if SES was not prepared to agree to this condition by January 9th 2004, CSCI would make an application under the CSA 2002 S20 to impose the condition. The Appellant stated that the effect of this condition was to make it virtually impossible for him to do his job as he was then virtually office bound.

36. 	Counsel questioned why the Appellant had not been aware of the significant periods of absence by some members of staff who in fact were being transferred from the registered homes to the unregistered homes. The Appellant denied that he had actually noticed the absences, notwithstanding the fact that at the time relevant (June / July 2003) he had been visiting Grove Lodge at least twice a week.

 37.	The Appellant was cross-examined about the procedure concerning restraint of the children and the number of restraints that had taken place at Rose Hill during the six month period from September 2002 to February 2003. The Appellant said that the 71 restraints recorded had to be put in context in that the two permanent residents at the home were extremely violent. The Appellant denied having any knowledge of the restraints that had occurred at the caravans, he had not received any reports and there was no system for receiving reports from the unregistered caravans.

 38.	Counsel also cross-examined the Appellant about the previous work experience of some of the staff employed by SES who included doormen, mini-bus drivers and firemen. The Appellant considered that these staff did have useful life experiences and that he found that many of them were calm and thoughtful people and that the ability to deal with a challenging physically intimidating young person did not necessarily lie in the level of qualifications that they had.

39.	On the question of the specific placement of a very disturbed child known as NS the Appellant stated that he had “closed his bed” and had spoken to CSCI and he regarded it as a very unsatisfactory situation.

40.	During the cross examination the Appellant  acknowledged that his relationship with CSCI had not been a good one; he considered that they were trying to press him to jump through more “hoops” in connection  with the proposed registration  of the Rowans. He acknowledged that he did not have a professional approach to his relationship with CSCI and he accepted that he had become arrogant and difficult.

Submissions

41.	Counsel for the Respondent submitted that the Appellant must or should have known before 31st July 2003 that there were children in unregistered homes.   Counsel submitted that KR had described the office and that it was simply not credible that the Appellant would not have known about the other children, as this was a small company with a relatively small number of placements. 

42. 	Counsel   submitted that the staff rotas in July 2003 showed clearly that RH was supposedly working at Grove Lodge   when she in fact had been working in the caravans and the cottage in Wales for several weeks.  If, as he claimed, the Appellant was visiting the homes regularly he would or should have noticed her absence.
Counsel submitted that the Appellant did have sufficient information to enable him to either know, or at least suspect, that children were being placed in unregistered premises.   It was also submitted that the statement by RH, (Tribunal Bundle tab.4 (1)) ` and the other care workers who had been in the caravans supports the submission that AS had made visits to the caravan and that he had unsupervised access to the children.   

43.	Counsel asked that a finding be made by the Tribunal that the Appellant actually knew about the unregistered homes and about AS’s unsupervised access to the children in SES’s care or that he should have known of it.   It was submitted that if the Tribunal found that the Appellant did know about the unregistered homes then it followed that there was a risk of harm because there were no proper   records for the unregistered premises.

44.	Counsel submitted that some of the children placed in the SES homes were very disturbed, violent children and that this in turn heightened the need for qualified staff.   Some of the children were being restrained several times a week and that training therefore was essential, and   the appointment of unqualified, untrained staff was in itself misconduct and placed a child at risk.

45.	It was submitted that the disciplinary procedures against DS were inadequate and that allegations made against DS were sufficient to warrant an instant dismissal.

 46.	It was submitted by Counsel that the Appellant had continually failed to acknowledge his responsibility for the problems at SES and that his witness statement demonstrated a lack of insight into the seriousness of the situation and that this had continued until the present time. It was conceded  by  Counsel that during the Tribunal hearing the Appellant  had shown a degree of contrition and candour about his  shortcomings  but that  this  was not  sufficient to redeem the situation  and  that the Appellant  was unsuitable to work with children.  

47.	 Counsel formally conceded that there was no evidence of misconduct by the Appellant against a vulnerable adult. Counsel also specifically asked for it to be noted that there were no submissions on the allegations from events in 1988.

Submissions on behalf of AG

48.	The Appellant submitted that AS and TH had used the cottage in Wales and the caravans in Selsey to run a totally separate business from the registered homes which he supervised on   behalf of SES.   This was a separate business   involving considerable sums of money but that he had no link or involvement with this business and it had been conducted without his knowledge.  When he became  aware of  the  placement of AA  in the   unregistered home  he had confronted AS but he  had  been assured that it had been a “one off” and that  the holiday  placement  would end. The Appellant stated that  AS had later  told him that the placement  had ended.

  49.	The Appellant repeated that he had diligently investigated the DS disciplinary case and that he had tried to get her dismissed and that he had initially referred her   to   the POCA list.

50. 	The Appellant acknowledged that, with hindsight, the role of Operational Director of SES had been beyond his experience and skill and that he had made many mistakes which he now regretted.   He acknowledged that he was unable to control the directors of SES and that he should have made more effort to work with SF and CSCI.

 51 	The Appellant submitted that although Counsel had said that the listing on POCA was not supposed to be a punishment it did have an effect on his CRB check and that it had made it difficult to get passes to go into government buildings in his current job.  
The Appellant  accepted  that  he may not have been the best of managers, but that he was not a  bad person , he had  tried to do his best for difficult and challenging  children over a twenty year period , he believed that he had made a  difference and that  he did not pose  a risk to children 

52.	In response to a question from the Tribunal about his  current employment  the  Appellant said that  he  had not applied to become registered as a social  worker as he now enjoyed working as a pest controller and with hindsight he  wished he had done it in 2002.

Findings

53.	Having considered both the written and oral evidence the Tribunal has reached the following conclusions:

(a)	AG’s awareness of the unregistered properties

The Tribunal considers that as the Appellant worked in a fairly small open plan office alongside KR and others it is not plausible that between April and July of 2003 the Appellant was not aware of any discussions, paperwork, faxes or other material relating to the unregistered placements which were taking place . 

The Tribunal considers that the Appellant was either aware or should have been aware of the unregistered properties prior to CSCI’s discovery of the unregistered property at Willow Way on July 31st 2003.

54.	The staff rotas show that RH was recorded as working at Grove Lodge during the July 2003 when she was actually working at the caravans and in Wales (Tribunal Bundle Tab8/27 I). The Appellant denied that he had ever seen the staff rota for RH but even if this is accepted by the Tribunal it still does not explain why the Appellant failed to notice that RH had not been working at Grove Lodge for several weeks, particularly as the Appellant admitted   that   during that time period he was visiting Grove Lodge on a regular basis.   
The Tribunal therefore finds that the Appellant should have been aware prior to July 2003 that a parallel business of unregistered homes was being developed.

55.	KR in her evidence stated that the holiday placements in the unregistered homes were “a new part of the business” and that the Appellant “didn’t have any contact with the social workers.” 
The Tribunal accepts that the Appellant was not involved in the actual referral or placement of any children into the unregistered regime

(b)	Permitting AS to have unsupervised access to children in the care of SCS

56.	The letter sent by the Appellant to the NCSE dated October 7th 2002 was not an undertaking by the Appellant that he would not permit AS unsupervised access to vulnerable children in the care of SCS.  In the letter the Appellant   stated that “in his daily tasks AS never has unsupervised access to young people.  Because of the nature of the placements most young people are subject to one to one or two to one supervision by staff and the high staff ratio means that no young person would or could be left unsupervised.” The letter goes on, however, to state “however, as an additional protection for him and our residents, AS has agreed to inform me personally prior to any visit to one of our establishments and this is noted in the central diary.”

57.	The Tribunal accepts that the Appellant believed and genuinely thought when he gave the assurance to the NSCS that AS would keep his word.   The Tribunal further accepts that in October 2002 the Appellant was not aware of any proposals to use unregistered premises for placements of children.

(c)	Failure to take adequate disciplinary measures against DC

58.	The Tribunal finds that the Appellant did act promptly when a serious allegation was made against DS in October 2003; he immediately suspended DS on 16th October 2003 and referred her to POCA. The Appellant attended a Senior Strategy Meeting on October 23rd 2002 ( October 2003 strategy meeting)  ( Tribunal Bundle Tab 3.1, pages 1 to 3 Tribunal bundle) of the West  Surrey Assessment  Team , where  SF was recorded as stating that “she would be happy for  the Appellant  to investigate the matter, with an update within 14 days.  It was felt that an independent person could be brought in to chair any possible subsequent disciplinary hearing.”

59.	The Appellant subsequently did investigate the matter and arranged for a disciplinary hearing to be chaired by an independent social worker. The  Appellant pressed for a charge of gross misconduct and for DS to be dismissed but when the disciplinary  panel  reached its conclusion it held that DS was guilty of serious rather than gross misconduct and recommended that DS was demoted and underwent further  training together with an increased supervision.
Given that the panel findings were not disclosed until April 29th 2004 and that DS had remained suspended throughout that the time the Tribunal does not accept that the Appellant should be criticised for failing to suspend DS immediately. 

60.	It is the Tribunal’s view that the Appellant did follow the procedure agreed at the October Strategy meeting, furthermore at the Second Senior Strategy meeting held on November 13th 2003 the West Surrey Assessment Team confirmed that Shropshire Social Services, who were responsible for placing A, were satisfied with both her ongoing care and the investigation.

61.	The Tribunal is concerned to note that the Senior Strategy meeting on July 1st 2004, which was attended by SF (see Tribunal bundle tab 3/26), contains the following statement:

“AG has featured in NSPCC reports that it was his house that was used in Wales to house some children.  He will therefore be included in the referral to POCA with AS and TH.”

This statement is` incorrect as the cottage in Wales belonged to TH and not to the Appellant.  Furthermore the  Appellant  is mentioned on only five pages on the 160 page NSPCC page  report  therefore  the suggestion  that  the Appellant “featured “, which  would imply a prominent role, is  misleading .
The Tribunal is therefore concerned that the decision to refer the matter was reached on the basis of an incorrect assumption so far as the Welsh property was concerned and an inaccurate assumption in relation to the NSPCC report which of course SF should have been aware of, as CSCI had began their investigations 11months earlier.
 
(d) The Appellant failed to prevent, investigate or discipline staff for inappropriate behaviour and for the excessive restraint of children.    

63.	The Respondent has alleged that the Appellant had failed to investigate allegations that staff had made inappropriate references to children including referring to them as “wankers” and used excessive or inappropriate restraint against children including tying up one child.   This allegation was investigated by the Appellant, who attended two Senior Strategy Meetings of NW Surrey Children’s Assessment in April 2004 where the matters were discussed.  At the Second Strategy Meeting on April  5th 2004 ( second assessment  meeting ) the Appellant   stated that the matter  concerning the  inappropriate  name calling had been investigated and that no allegations had been made by any children or young people, the comments by the  staff  had been overheard  during a child protection conference by another delegate  and had been taken out of context. The allegation about a member of staff tying up a child during a restraint was also not substantiated.

64.	The Tribunal finds that the Appellant did investigate the allegations and that both the staff members at the centre of the allegations were immediately suspended from duty.  The staff were subsequently interviewed and offered re-training in accordance with the recommendations of the second assessment meeting ((Tribunal Bundle Tab 3 page 19).

(e)	Excessive Use of Restraint 

65.	The Respondent also alleged that there was excessive restraint used by staff and that the Appellant had allowed this to continue and that this placed children at risk.
During his evidence the Appellant  acknowledged that NCSC  in a letter dated  March 20th 2003 had expressed concern about the number of restraints, particularly those involved  on the same two young people,  and that five of the staff members working in one of the homes had not yet undertaken a restraint/ behaviour management course 
(Tribunal Bundle Tab7 /24AO).
The Tribunal finds that the Appellant responded promptly in writing to the NCSC within four days in a detailed two page letter (Tribunal Bundle Tab 7/24 AP)

66.	In his oral evidence  the Appellant emphasised that the two young people referred to in the NCSC letter could be violent and aggressive and  that  if they  lost  control it was necessary  to restrain them until they were no longer a risk to themselves, or  to other residents or to the staff . The Appellant said that he had already recognised the need for staff training and that all the staff were due to attend the five day course on a rolling programme.   
Gaps in the training of staff, particularly those handling children with complex needs is a serious matter and omissions would have resulted in the children being at risk of inappropriate techniques in relation to their restraint.   Nevertheless the restraints were being recorded and logged in the registered homes. The Appellant   acknowledged that there was no proper structure for reporting levels of restraint in relation to the unregistered arrangements and he said that he found that disturbing, but that he was not aware of what was going on in the unregistered homes.

67. 	The Tribunal finds that there were gaps in the training of staff and that it certainly took some time for all the staff to be trained in the TCI techniques.
The Tribunal  accepts that  it may have been  difficult  for the Appellant to arrange for all the staff  to  receive the TCI  training quickly,  however the use of  untrained  staff  to   care  and be involved in the  restraint of  young people with  challenging  behaviour did place the children and  the staff  at risk of harm and  therefore  does constitute  misconduct by the  Appellant. The Tribunal however recognises that the Appellant did try to improve the situation by   organising for the staff to go on the five day training courses run by TCI.

(e)	Unqualified Staff

68.	The Respondent also alleged that there was a risk of harm to children arising from the use of unqualified staff, as the staff recruited to the bank of agency staff were not qualified and the list of staff includes doormen, firemen and a mini-bus driver. The Appellant in his oral evidence to the Tribunal stated that the doorman, fireman and other applicants could have “life skills” which were very useful when trying to handle disturbed and sometimes violent children, he also stressed that the intention was that the unqualified staff should work alongside more experienced and qualified staff. The Appellant  told the  Tribunal that when staff were recruited he used questionnaires, probing personal questions and “scenario” style problems to  gauge the  suitability  of the applicants  and that a number of the applicants  had been rejected as unsuitable.

69.	The  Tribunal accepts that  the Appellant  when  interviewing  and screening  applicants focused on the individual’s overall ability to cope  with  challenging  children.
The Tribunal finds that the staff in the registered homes were offered training and under most circumstances would have been supervised or working alongside more experienced staff.   However, the Tribunal also finds that the Appellant   must have been aware that some of the staff he interviewed and approved for the “staff bank” had been as the Appellant stated during his evidence “creamed off” by TH and that those staff would not receive the TCI training.

70.	The Tribunal finds that there is no statutory requirement that all staff working in a registered children’s home must be qualified. The use of unqualified staff within the children’s home was not of itself misconduct provided the unqualified staff were supervised by trained staff and received appropriate training. However the training  programme   with TCI  took over a year to deliver to all the  staff  and during that  time  unqualified staff  were being used  within the  registered  and the  unregistered  homes  and  either  did or were likely to be involved in the  restraint of children . The Appellant knew or should have known that some of the unqualified staff were untrained and therefore it does constitute misconduct that might have placed a child at risk. The Tribunal has found that the Appellant knew or should have been aware of the  unregistered  properties  being operated by SES ( see para 53)  and so the Appellant  should have  realised  that the  staff  working in the unregistered  properties  would not be monitored , supervised or trained  properly , thereby  placing  children at risk of harm.

(f)	Placement of children in premises that were neither registered nor suitable for that purpose

71.	The Tribunal finds that the Appellant did fail to notify the NCSC in June 2003 when he became aware that a child known as AA was being housed in a caravan at Selsey because he feared that he might lose his job and the house that he rented from SES. The Tribunal accepts that the Appellant did his best to cope in some challenging situations and the reluctance on the part of some of the local authorities to take responsibility for moving children inappropriately placed added to his difficulties.
However once  the Appellant  became  aware that  AA  was being housed in  unregistered accommodation  he should have notified   CSCI  (as NCSC had by  then become ) immediately; his failure to do  was  misconduct   likely to place a child at a risk of harm.

(g)	Allegation arising from the Appellant’s employment at the Oaks Centre in June 1988

72.	Counsel for the Respondent offered no evidence for the allegations and the Tribunal finds that the Respondent has not met the standard of proof required.

 Conclusions 

73.	Taking all these findings into account the Tribunal has reached the conclusion that  the Appellant  either did or should have been aware that AS and TH were running a parallel  business to the  SES  business  where children were being placed for periods in excess of 28 days in unregistered homes .   

74.	The failure of the Appellant  to react to this information or to be pro-active in challenging the directors of SES resulted in children being left in an unregistered setting with staff who were not always well trained or qualified and  without proper recourse to procedures to safeguard and  protect  the  children .The Appellant  himself acknowledged that this was unsatisfactory and in the circumstances the Tribunal, whilst having sympathy with the fact that  the Appellant  did not  endorse or encourage such a business, cannot reach any other conclusion than that it was misconduct on his part to fail to respond and notify CSCI.  This omission does constitute misconduct which placed a child or children at risk of harm.

75.	 The Tribunal  also  finds  that the although the Appellant  tried to  improve the  standards at  the  registered  homes, he must have known that  the  use of unqualified  staff  who  were  yet to   receive  proper training in the  handling and restraint of  young people  with challenging  behaviour  must  have posed a risk  of harm  to a child. The Tribunal accepts that although the Appellant was supposedly  the  operational director  of the SES  in reality   the  significant decisions were  made by  the directors  AS and TH , nevertheless his failure to  confront the  directors or to notify  CSCI fully of the shortcomings  in the SES setup   did  place  the young people at risk of harm

76.	The Protection of Children Act 1999 S 4 (3) requires that the Tribunal must also determine whether the Appellant is unsuitable to work with children.

77.	The Appellant   represented himself at the Tribunal hearing and overall presented as a credible witness. He admitted that he had made mistakes and that the role as operational manager of SES had been beyond his experience and skill. Counsel submitted that in his written statement the Appellant  had lacked insight into his  failings and that this lack of insight    had remained  to date, although  Counsel did  note that  the  Appellant had  acknowledged some  of   his failures  in his oral evidence . The Tribunal however  notes  that the Appellant  did admit some of his failings at paragraphs 65,66 and 67 (page 12, tab 1/93 of the Bundle) and  considers  that  the frank admissions by  the Appellant of his  mistakes  and the limitations of his  skills  demonstrates  that  he  does  now have insight into  the  mistakes  he made.
The Appellant conceded that he had been unable to control the directors of SES and he also recognised that his relationship with CSCI and with SF in particular had been poor and that he had become arrogant and difficult in the correspondence with CSCI.

78..	The Tribunal is conscious that the circumstances surrounding these placements into unregistered homes were unusual as two local authorities continued to make placements into the homes notwithstanding that they knew that the homes were unregistered.  KR confirmed that these placements were made directly between the social workers and TH and that the Appellant was not involved in these referrals relating to the unregistered homes. All the invoices and documentation were sent direct to KR and the Tribunal accepts that the Appellant was not “kept in the loop” and did not take a proactive role in the placements in the homes.

79.	So far as the registered homes were concerned, the Appellant had brought about improvements in the recording of restraints, he organised the training of staff and conducted thorough investigations when complaints were made about the staff.
The Tribunal    does not accept that the Appellant gave  an undertaking   about   AS  not having unsupervised access to  the children in the  homes, he gave an assurance and at the time he  gave  that assurance  he  genuinely  believed that AS would honour the  arrangement . 

 80. 	The Appellant’s original referral to the  POCA and POVA lists  seems to have occurred partly  as a  result of  misinformation disclosed to the  Senior Strategy Meeting on July 1st 2004 ( Tribunal Bundle  Tab 3/26) as to the ownership of the Welsh property which  was  actually  owned by TH and the inference that  the  Appellant  featured more heavily in the NSPCC report on The  Oaks  than in fact was the case.

81.	The  President  of the CST in Lisa Arthurworrey  v the Secretary  of State  for Education & Skills [2004] 268 PC stated  at Para 149

“This Tribunal believes that to list a social worker under the Protection of Children list or indeed under the Protection of Vulnerable Adults list kept under section 81 of the Care Standards Act 2000 for professional mistakes should be an unusual occurrence to be used only in the most clear cut cases. The General Social Care Council now maintains a Register of social workers under section 56 of the Care Standards Act 2000 and a person will be capable of being removed from the Register under section 59. Decisions to remove are subject to a right of appeal to the Care Standards Tribunal under section 68. It is our view  that  this procedure  is a more  satisfactory  procedure  than listing  a person as unsuitable to work with  children, which carries with it far ranging implications for the individual  as regards  both employed  and voluntary  work  for a period that can extend to ten years or more.”  The Tribunal   also  noted  the  comment  made  by the   President of  the CST  in  MB [2005] 512 PC para 12 that “ each case to come before the Tribunal  must  be looked at on its own facts . Context will be all important”. 

82.	The Appellant has indicated that he does not wish to continue to be involved with children and is content with his new role as a Pest Control Inspector, however he is embarrassed that whenever a CRB check is made when he is doing work in government buildings and elsewhere reference to his referral on to the POCA and POVA list is made.

83.	The Tribunal considers that  the  Appellant’s  own analysis of the situation is correct, namely that he had  made mistakes and that he may not have been an outstanding  manager, but that he had done his best over a period of 20 years  to do some good  whilst  working  with  children in a care setting and  that he did not and does not  pose a risk to children.

POCA Appeal

84.	The Tribunal finds for the  reasons previously   stated that although the  Appellant  is guilty  of misconduct that   placed a  child or children  at risk of harm, the Tribunal is not satisfied that the Appellant is unsuitable to work with children  and therefore the  First Appeal is  allowed .

The   Tribunal directs that that the Appellant’s name  shall be removed  from the  POCA list.

POVA Appeal 

 84.	The Respondent did not add any written or other evidence to support the original response stating that the Appellant should be placed on the POVA list and therefore the Second Appeal is allowed.

The Tribunal  directs that  the Appellant’s  name  shall be removed from the  POVA list.

This is the unanimous decision of the Tribunal.

Dated  December 8th  2006

Miss H Clarke Chairman
Ms B Graham
Mr J Williams