SSC v Secretary of State for Education and Skills [2006] EWCST 638(PC_Costs) (26 June 2006) 

SSC
V
SECRETARY OF STATE
[Costs Decision]
[2006] 0638.PC
[2006] 0639.PVA
1.	On the 16th January 2006 the Appellant lodged Notice of Appeal against a decision of the Secretary of State to include his name on The Protection of Children Act and the Protection of Vulnerable Adults Act Lists dated 21st October 2005. Provisional Notice of listing was given on 22nd June 2005. By a Response dated the 14th February 2006 the Secretary of State gave notice of an intention to resist the Appeal.
2.	The Appellant's name was referred to the Secretary of State by his former employers, Coventry City Council. The Appellant had been employed by the Coventry City Council as a Social Worker in the Children and Families Team. 
3.	On the 25th June 2004 the Appellant had been involved in an incident of violence in which his wife sustained injury. The matter was reported to the Police and the Appellant appeared before the Magistrates Court on the 29th June 2004 when he pleaded guilty to an offence of assault. On that date the Appellant was suspended by his employers.
4.	The Coventry City Council undertook an investigation into the circumstances of the conviction and a Disciplinary Hearing took place on 7th October 2004. The appellant attended that hearing with his trade union representative. The Coventry City Council found that this incident of domestic violence was incompatible with the Appellant's employment working, as he did, with children and families many of whom had experience of domestic violence. As a result the Appellant's employment was terminated on 19th October 2004. 
5.	The Appellant exercised his right of appeal and his dismissal was confirmed, after a hearing, by Coventry City Council on the 28th January 2005.
6.	The Coventry City Council referred the matter to the Secretary of State on the basis that a criminal conviction for domestic violence was incompatible with the duties of a Social Worker required to work on child protection cases. 
7.	In his Notice of Appeal the Appellant indicated that there had been a substantial change in his situation after the completion of the disciplinary process. Whilst the incident and conviction were admitted the Appellant contended that he had since separated from his wife, gained access to his children and had not been involved in any further incident. He indicated that his caseworker at the General Social Care Council was to recommend his registration as a Social Worker subject to conditions. 
8.	The Secretary of State conducted further investigations in the light of the Appellant's grounds for appeal and once those investigations were completed and the situation reviewed the Secretary of State wrote to the Tribunal withdrawing opposition to the Appellant's Appeal which was allowed on 2nd May 2006.
9.	The Appellant seeks an order for the costs of and occasioned by his Appeal under Regulations 33(2) and 24 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002. The Appellant set out his grounds for such an Order in a letter dated 9th May 2006 submitting that it was unreasonable to confirm his name on The Protection of Children Act and the Protection of Vulnerable Adults Act Lists. By letter dated 26th May 2006 the Secretary of State responded that the conduct of the case as a whole was reasonable in all the circumstances including those matters set out above.
10.	In Fun Camps Ltd v OFSTED [2003] 124.EY the Tribunal indicated that in considering its discretion in relation to an Application for costs it was necessary to take an overview of the conduct of both parties to ascertain whether one of them had acted unreasonably. In Walkes v OFSTED [2003] 212 the Tribunal confirmed that costs do not follow the event and the provisions of Regulation 24 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 require an Appellant to demonstrate that a Respondent has acted unreasonably. In Fairburn v NCSC [2002] 76 NC the Tribunal stated that the test is a high test. 
11.	I have carefully reviewed the papers and the submissions made in this case. I do not consider that the Appellant has discharged the substantial burden of demonstrating that the Secretary of State has acted unreasonably in the conduct of these proceedings. Accordingly I do not consider it appropriate to make an Order for Costs in favour of the Appellant.

No Order for Costs

His Honour Judge David Swift
Chairman
26th June 2006