Addy v Secretary of State [2007] EWCST 1010(PT) (01 October 2007) 

John Addy 

v.

Secretary of State 

[2007] 1010 PT

Before Ms Maureen Roberts
Ms Pat McLoughlin
Ms Margaret Williams

A hearing held on the 19th September 2007 at Birmingham Social Security Tribunal Auckinleck House, Broad Street, Birmingham.

The Appellant represented himself and was supported by his wife. 
The Respondent was represented by Miss K Olley of Counsel instructed by Mr Rhys Maynard of the Treasury Solicitors. Ms Andrea Kleefstra Senior case worker in the Children’s Safeguarding Operations Unit at the Department for Children, Schools and Families gave evidence for the Respondent.
The Appellant gave oral evidence. 

1. The Appellant appeals against the decision of the Secretary of State for Education and Skills made under section 142 of the Education Act 2002 in a decision letter dated 24th February 2007. This decision bars the Appellant from working in any capacity with children as provided by section 142 of the Education Act. The ground relied on by the Secretary of State was that the appellant was unsuitable to work with children. The letter stated “In reaching a decision, the following has been taken into account:
•	All the information available about the matter including that provided by Solihull Metropolitan Borough Council and West Midlands police
•	Your representations, in which you strongly disagree with the content of Dr Wilcox’s report; you consider you do not present a risk to children nor have ever done so; you wish to continue with your tutoring as you get great pleasure from passing on your knowledge to others, and, you point out, there have been no issues arising from these activities.
•	The testimonials provided by your wife and parents of children you have looked after and tutored
•	The report by Dr Wilcox, Clinical and Forensic Psychologist, based on your recorded statements and responses during assessment who concludes that your response pattern reflects very high  levels of pro-offending cognitive distortions about children and sexuality and that you present a significant risk to children both now and in the future. “

 2. An order was made at the commencement of the proceedings under Regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 continuing the order made by Simon Oliver on the 10th August, restricting the reporting of the proceedings.  We are satisfied that this order is necessary in this case to safeguard the welfare of the children involved in this matter. This order should continue. 
3. We were addressed on the issue of the form of the publication of this decision under rule 27 of the regulations. Both parties agreed that the children should be referred to in this decision by initials only. With reference to the Appellant’s name appearing in the decision the Respondent considered that it should be published while the Appellant sought anonymity. The Tribunal has decided to publish the decision with the Appellant’s name. The reasons are given in the conclusions at the end of this decision.
4. After the Respondent’s decision was made the Appellant sent further testimonials to the Respondent. The Tribunal had not seen these and as outlined below under the rules relating to such appeals we are not permitted to take into account post decision information. We had all the testimonials originally submitted, but explained to the Appellant that we could not consider additional material. 

Background and chronology leading to the decision

5. In the early 1980s the Appellant’s application to be a foster carer with Social Services in East Sussex was turned down. The reasons for this decision were not clear. The Appellant said it was because his work involved him moving around the country.

6. In 1988 both the appellant and his wife were registered as child minders by Solihull Council. However this registration was revoked in 1989 when a three year old child (E) alleged that the Appellant had sexually abused her. The matter was investigated and the professionals concluded that there was substantial evidence to suggest that E had been abused by a person outside the family and that her brother aged 5 had also experienced inappropriate sexual activity with an adult. The matter was not taken to court because of the young age of the children.

7. In November 2001 the Appellant applied to be re-registered as a child minder. This application was refused due to the previous allegations and cancellation.

8. In 2004 Ofsted carried out an inspection of the Appellant after learning that he had placed advertisements in a newsagent’s window offering to mind children aged 2-10. Ofsted served an enforcement notice on him preventing him from acting as an unregistered child minder.

9. The Appellant had also been invigilating at a local school and doing private maths tutoring since 2001. The Appellant was discussed at MAPPP meetings on four occasions between 2004 and 2006 but no further action was taken.

10. In July 2005 the Appellant approached the local Gingerbread group to offer child care assistance. He was accompanied by three unidentified children. This approach was reported to Solihull Social Services.

11. During this time the Appellant and his wife had formed a close involvement with a mother and her three daughters (the S family). The children’s step mother had raised concerns about the arrangement. The children were interviewed and disclosed nothing of concern. The mother stated that she had no concerns about the Appellant’s involvement with the children. It later became apparent that these three children were those taken by the Appellant to Gingerbread.

12. The Appellant was aware of the investigations with the S family and on 12th February 2006 wrote to Solihull Social Services ‘to enquire if you are prepared to re-assess your opinion of my suitability to have unsupervised access to young children’.

13. On 10th April 2006 Solihull Social Services wrote to the Appellant stating that it proposed to seek a specialist assessment before deciding whether to agree to his request. A psychological assessment was carried out by Dr Wilcox. This included psychometric and polygraph tests and a face to face interview. Dr Wilcox concluded that the Appellant poses ‘a significant risk to children, both now and in the future’ and strongly advised against the Appellant being considered in any role as a carer tutor etc.
 
14. The matter had already been referred to the Respondent. The Respondent gathered and considered all the information and the representations made by the Appellant and informed him of the decision to place him on List 99 as outlined in the decision letter referred to above.

The Evidence

15. The Tribunal had a full witness statement from Ms Kleefstra, all the papers submitted to the Respondent and the appeal papers and statements of the Appellant. We also had Dr Wilcox’s report.

16.Ms Kleefstra confirmed her statement and her investigations. She said that there had been long standing concerns from Police Social Services and Ofsted. Most recently there had been the risk assessment by Dr Wilcox. She confirmed the chronology of events as set out above.

17.  Ms Kleefstra gave us a more detailed account of the original allegations made in 1988. In 1988 the Appellant and his wife had begun to look after a boy (5) and a girl (3). At an informal review a week after the arrangement had begun the mother reported that the Appellant had said that the little girl had tried to unzip his flies. A social worker visited the Appellant and he was advised not to take the children out on his own. 

18. Some ten days later the allegations of sexual assault were made. The girl who had been out with the Appellant came home and asked to be tickled ‘like John does’ and then indicated several parts of the body including the genital area; she then repeated a dressing and undressing game she apparently played with he Appellant which ended with her taking her dungarees down and tickling her genital area with her middle finger. The family worker and E’s mother witnessed this. 

19. The Appellant was arrested and interviewed. He denied the allegations. The investigators concluded that the sexual abuse had taken place and in addition the brother had been subject to inappropriate sexual activity and that the Appellant was implicated in both allegations. However it was considered that the stress of a court case would be harmful to children of that age. The matter did not proceed to charge or trial.

20. Following this event Ms Kleefstra noted the on-going concerns about the Appellant’s continuing attempts to have access to children and that while there were no specific allegations brought to the attention of the authorities, concern was heightened by the report from the Gingerbread group and the contact between the Appellant and the S family.

21. She stated that the Appellant was advised by Solihull Social Services, in 2004, not to have any further personal contact with children. This was advice that he had ignored.

22. Finally she high lighted the extremely detailed report from Dr Wilcox with its strong conclusions which she summarized as
•	The Appellant poses a threat to prepubescent children
•	He has distorted views regarding child sexuality
•	He is a significant risk now and in the future to children

23. Dr Wilcox’s report had concluded: “The results of JA’ s psychometric testing and polygraph examination revealed serious concerns regarding the threat he may pose to prebubescent children. ...Psycometric testing revealed worrying distortions about child sexuality and serious deficits regarding empathic concern. JA’s self reported responses on the MSI in particular suggested that, at times, he is sexually attracted to children. ..I formed the opinion that he poses a significant risk to children both now and in the future. As such I would strongly advise against J. A. being considered in any role as a carer tutor etc. and recommend that his name is placed on the PoCA list… The documentation I have reviewed together with the current assessment leads me to the opinion that J. A. should not be permitted contact with any child now or in the future.’

24.Ms Kleefstra felt that the evidence from the agencies involved was quite clear cut and that there was more than enough evidence to support the Respondent’s decision. The listing on the PoCA list had not proceeded for legal reasons relating to the date of the original allegations. She stated that the ground of unsuitability was the correct ground to be used in this case of listing on List 99. The listing had the further consequence that by s35 of the Criminal Justice and Courts Services Act 2000 (CJCS Act 2000) the Appellant is also disqualified from working with children in a ‘regulated position’ under s36 of the Act. This is defined ‘a position whose normal duties include caring for, training, supervising or being in sole charge of children.’

25. The Appellant denied the allegations made in 1988.He said he had been desperate to prove his innocence. He stated that he and his wife liked children. They had not had any children of their own and therefore wished to help others and look after children. He was prepared to do this free of charge. He and his wife had looked after the three S girls for over 10 years with no problems; they had taken them on holiday and for outings at their own expense.

26. He had finished full time paid employment in 2001 and that was when he had started tutoring maths. He had been very successful with his pupils and the parents were very pleased with the results he achieved. All he wanted was permission to be allowed to tutor maths’ pupils in a supervised setting.

27. The Appellant had submitted a lengthy response to Dr Wilcox’ report and it was clear that he disagreed with the contents and conclusions of the report. He had been to see another psychologist but said that it soon became apparent that this man was only going to agree with Dr Wilcox so he stopped seeing him. We noted that there had been one or two factual corrections that the Appellant had put to the Respondent about Dr Wilcox’s report and these had been acknowledged by the doctor.

28. The Appellant said that he thought Dr Wilcox’s report was completely wrong. He thought he had made a mess of some of the tests. He had not lied to the doctor but considered that some of his replies had been misunderstood and twisted. He said that the conditions in which he had answered Dr Wilcox’s questionnaire had been difficult, in that it was very hot, he felt very confused and had not had sufficient sleep. 

29. He gave an example of a question he thought he had answered truthfully where his answer had been twisted. He was asked if he lingered near schools to watch children. He told the Tribunal that he didn’t hang around school gates but if he was passing a school he would slow down and watch as he loved to see the children play. He told the tribunal that children made him feel better and he was aware that when he was with the S children he knew people were looking at them and smiling

30. The Appellant summed up his position by saying that he had been desperate to prove his innocence but he tried and exhausted all official channels and he realized that it was futile to approach the authorities. The purpose of his appeal was to ask for permission to continue with maths tuition under supervision. He said he was not seeking unsupervised contact with children and would like to be monitored in the contact involved with that supervision.

31. He proposed that his wife should be the person responsible for monitoring him because if any further accusations were leveled against him she had made it clear that she would leave him. The Appellant emphasized that he wanted no further unsupervised contact with children as this would terrify him in case further allegations were made.

32.  His sole aim is now to teach maths. He felt he could reach children in a one to one setting and get into their mathematical minds and see their thoughts. He hoped that the DCSF would understand that he was trying to help the department to educate children.

The Law.

33. Section 142(1)(a) of the Education Act 2002 provides that the Secretary of State, in relation to England and Wales, may direct that a person may not carry out work to which section 142 applies. This is the process widely referred to as "placing a name on List 99". Section 142 applies to the provision of education at a school and elsewhere. 
34. Section 142(4) of the 2002 Act provides that a direction may be given in respect of a person only on the specified grounds. These are:
a.	grounds that the person is included in the list kept under section 1 of the Protection of Children Act 1999; 
b.	grounds that the person is unsuitable to work with children; 
c.	grounds relating to the person's misconduct; 
d.	grounds relating to the person's health; and 
e.	in the case of a person taking part in the management of an independent school, grounds relating to the person's professional incompetence. 
Thus, the Secretary of State must be satisfied that at least one of the specified grounds exists before he or she can exercise the statutory discretion provided for in section 142(1).
35. Section 144(1) (a) of the 2002 Act provides that a person in respect of whom a direction has been given under section 142 may appeal to the Tribunal against the decision to give the direction.
36. Regulation 12(1) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 also provides that an appeal to the Tribunal may be brought by a person in respect of whom a direction has been given under section 142 of the 2002 Act against such a direction. By regulation 12(2), no appeal may be brought on the ground of information or evidence referred to in regulation 9(2) unless that information or evidence has first been brought to the attention of the Secretary of State under regulation 9.
37. Regulation 9(1) of the 2003 Regulations provides that a direction given under section 142 of the 2002 Act ("the earlier direction") may be revoked or varied by a subsequent direction on either or both of the grounds referred to in regulation 9(2). The grounds referred to in regulation 9(2) are that the Secretary of State is in possession of information relevant to the decision to give the earlier direction which he or she did not have at the time the decision was made and that the Secretary of State is in possession of evidence of a material change of circumstances of the person concerned occurring since the earlier direction was given.
38. Regulation 13(1) of the 2003 Regulations provides that, where on an appeal under regulation 12 the Tribunal considers that the direction is not appropriate, it may order the Secretary of State to revoke or vary the direction.
39. Regulation 13(2) provides that the Tribunal shall not, in exercising its powers under regulation 13, consider any information relevant to the decision to give a direction which the Secretary of State did not have at the time the decision was made, or evidence of a material change of circumstances of the person concerned, occurring since the decision to give a direction was made.
40. Thus the Tribunal is, in this instance, confined to conducting a review of the decision made by the Secretary of State. The Tribunal is not empowered to re-hear the case or to determine the primary facts. It is required, in effect, to decide whether the Secretary of State had sufficient evidence upon which to base a determination that the specified ground relied upon existed and, further, to decide whether the direction was an appropriate or proportionate response in all of the circumstances known to the Secretary of State.
41. Section 142 of the Education Act 2002 does not apply to employment as a private tutor. The restriction on working in a private capacity as a tutor (whether supervised or unsupervised) arises in consequence of the operation of s 35 of the CJCS Act 2000. That section provides that it is an offence for a person “disqualified from working with children”  (which includes persons in respect of whom a direction has been made under section 142 of the Education Act 2002 for reasons of unsuitability) to work in a “regulated position”. A “regulated position” is defined in section 36 of that Act in terms which include under 36 (1) (c) “a position whose normal duties include caring for, training, supervising, or being in sole charge of children”. It follows that private tutoring whether supervised or unsupervised is a “regulated position” under the CJCS Act.
 42. The Appellant wished the tribunal to vary the direction so as to permit him to carry on supervised tutorial work. However we accept the argument that even if the Tribunal were to vary the direction it would still be a direction under s142 to which the CJCS Act 2000 applied and therefore prevent him from tutoring children.
43. The role of the  Tribunal is to decide whether the restriction is an appropriate measure to ensure, so far as possible, that children will be properly protected and that reasonable parents and other interested parties will be confident about the provisions relating to child protection in educational establishments and in the wider context of the CJCS Act 2000.
Conclusions

44. The tribunal having read a considerable amount of background documentation, witness statements and listened to the evidence and submissions by both parties finds as follows.

45. The Appellant presented as a man in denial of what was being put to him. In answers to questions in the hearing he continued to deny and minimize the replies he had given to Dr Wilcox. He persistently felt he had been misunderstood. He had no answer to why he had ignored the advice given to him in 2004 not to have any further personal contact with children.

46. We note the point made by the Appellant that the allegations made in 1998 had not been tested in a court of law. We also noted the concerns of the authorities at the time and subsequently.

47. We had no evidence to challenge the findings of Dr Wilcox’s report apart from the Appellants own comments in cross-examination by both the Secretary of State and the panel which were not convincing. We had no reason to doubt the evidence of the Respondent’s witness as to the information she had gathered and considered before making her recommendation to the Respondent. 

48. With respect to rule 27 of the regulations and the publication of this decision, the Appellant had requested anonymity. In his further information form he said ’in my current fragile state of mind I do not think I could cope with this (i.e. his details being made public)’. The Respondent had submitted that there were no grounds for anonymity. We gave due weight to the Appellant’s request however we note that the Appellant had advertised his services in newsagent windows and on educational web sites on the internet. He had persisted in contact with the S family and taken those children when he went to offer his services to Gingerbread. This was after he had been advised not to have contact with children. We have weighed the Appellant’s request against the issue of the protection of children and the openness of the appeal system. We have considered the matter carefully and have decided not to accede to the Appellant’s request.
49.  On the evidence we are satisfied that the Respondent has discharged the burden on him, on a balance of probability, that the Appellant is unsuitable to be employed as a teacher or worker with children or young people (s142 Education Act 2000), or to be a person whose normal duties include caring for, training, supervising or being in sole charge of children (s35 and s36 CJCS Act 2000).

 50. Our decision is unanimous. 

Accordingly we dismiss the appeal.

Ms Maureen Roberts
Ms Pat McLoughlin
Ms Margaret Williams
1st October 2007