Joyce v Secretary of State for Education and Skills [2006] EWCST 813(PVA) (19 February 2007)

Sini Joyce
-v-
Secretary of State
[Preliminary Hearing]

[2006] 813.PVA
[2006] 814.PC

1.	By Order dated 10th January 2007, I directed that there be a Preliminary Hearing in this appeal in accordance with Regulation 6(1) in order to consider, amongst other matters, the Preliminary Issue as set out in an attached sheet to section 2(a) of the Appellant’s Further Information Form.
2.	The Appellant, who was a staff nurse in a care home, appeals the two decisions of the Respondent dated 8th August 2006 placing her on the PoVA list (the primary listing) and the PoCA list (the secondary listing).The appeal application Form A is dated 7th October 2006 and was received by the Tribunal on 23rd October 2006. In the reasons contained in the notice of appeal, the Appellant states “I note that the basis for confirming my name on the PoVA list was simply that I slept on duty. Although I accept that I slept whilst on duty, I submit that this does not amount to ‘misconduct’ within the meaning of s 82 of the Care Standards Act 2000.”
3.	The Response to the Appeal states that the Appellant was guilty of ‘misconduct’ by reason of the following five incidents:
(i)	whilst working on a night shift in the dementia unit of [the home], the Appellant (who was the nurse in charge) was complicit in allowing her colleague to block and tie the doors to the lounge…whilst they and three residents were inside the lounge, thereby barring the exit route to the residents inside the lounge and barring the entry route to the residents outside the lounge;
(ii)	the Appellant then proceeded, with her colleague, to go to sleep in the lounge, leaving the residents uncared for and neglected, and rendering her unable to immediately respond to any of the residents’ needs or any emergencies;
(iii)	the Appellant failed to administer medication to a resident and left the medication sitting out in the Home, accessible to other residents, thereby endangering the resident who was denied the medication, and endangering the lives of residents who could have taken the medication;
(iv)	the security door to the dementia unit was found to be unsecured, which the Appellant, as nurse in charge, had failed to realise, thereby endangering the lives of residents who may have left the unit by the unsecured security door;
(v)	the unit was found to be in a state falling below the requisite standards of health and hygiene whilst the Appellant was the nurse in charge.
4.	The attached sheet to the Appellant’s Further Information Form states that the Tribunal should not consider evidence from the Respondent relating to the allegations in (i), (iii),(iv) and (v) of the Respondent’s Response Form as set out above.
5.	I received detailed written submissions from both the Appellant and the Respondent on this issue, and heard oral submissions on 14th February 2007, when the Appellant was represented by Mr J Carpenter of Counsel, and the Respondent was represented by Mr J Moffett of Counsel. I am grateful to both Counsel for the care they have both taken in presenting their submissions.
6.	As both parties state, the question before me is the construction of s 86(3) Care Standards Act 2000. This states as follows:
“If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely –
(a)	that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult; and 
(b)	that the individual is unsuitable to work with vulnerable adults,
the Tribunal shall allow the appeal or determine the issue in the individual’s favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual’s inclusion in the list.”
7.	Mr Moffett, in his skeleton argument, states that s 86(3) obliges the Tribunal to itself make findings of fact as to what actually occurred and then decide whether or not those facts disclose that the individual was guilty of misconduct. He emphasises the use of the word “satisfied” in s 86(3). 
8.	He submits that there is no restriction laid down in s 86(3)(a) as to the nature of the ‘misconduct’ that the Tribunal may consider, and that in particular there is nothing in the section that restricts the Tribunal either to a consideration of the ‘misconduct’ that led the Employer to dismiss (or would have dismissed or transferred) the worker; or to that which the Respondent took into account for the purposes of assessing whether the employer reasonably considered the worker to be guilty of misconduct.
9.	Mr Carpenter submits that the definition of ‘misconduct’ in s 86(3)(a) should be the same as the definition of ‘misconduct’ in s 82(7) of the Act. That section provides the statutory framework for confirming the worker’s name   on the list.
“This subsection applies if the Secretary of State is of the opinion  -
(a)	that the provider reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and
(b)	that the worker is unsuitable to work with vulnerable adults.”
10.	Mr Carpenter submits further, both in his skeleton argument and in his oral submissions, that the Respondent’s approach is misconceived for three reasons. First, that the hearing before the Tribunal is an appeal; secondly, issues of fairness and potential prejudice; and thirdly, by a consideration of the jurisdiction available to the Tribunal in certain circumstances to confirm a care worker on the list. 
11.	On the first point, he states: “The fact that the Tribunal considers whether misconduct actually occurred rather than whether the former employer reasonably considered it to have occurred does not broaden the scope of its enquiry…That stricter test is plainly to protect the care worker who might have been reasonably dismissed and yet was not in fact guilty of the misconduct alleged. The statutory scheme as a whole envisages a narrowing of the test to be applied at each stage of the process.”
12.	I do not accept this submission. The Tribunal, under its jurisdiction as set out in s 86(3), must make findings of fact. Prior to the Tribunal considering the evidence, no actual findings may have been made by the Secretary of State. The test in s 82(7) does not oblige the Secretary of State to make findings of fact. Her responsibility is limited to forming an opinion “that the provider reasonably considered the worker to be guilty of misconduct.” If the Secretary of State is so satisfied, and the worker appeals, it is often only then that the Secretary of State, when preparing for an appeal, discovers further evidence of other alleged misconduct to support continuing her opposition to the appeal. Thus it is my view that s 86(3), by not defining ‘misconduct’ by reference to s 82(7),  enables the Tribunal to consider evidence that was not available to the Secretary of State when she was considering whether “the provider reasonably considered the worker to be guilty of misconduct.” I agree with Mr Moffett that on a proper construction of s 86(3)(a) there is no restriction on the misconduct which may be considered by the Tribunal. 
13.	This is the approach that has been taken by this Tribunal over a number of years in relation to the Protection of Children Act 1999 s 4(3) and s3(6); where identical wording to that of the Care Standards Act 2000 appears in the context of the PoCA list. 
14.	Mr Carpenter’s second submission, that of fairness and prejudice, is one to which I have given much thought. He refers me to the decision of Mr Justice Stanley Burnton in Wright v Secretary of State [2006] EWHC 2886 (Admin), where the Judge said: “If the Care Standards Act operates unfairly, the Court will seek to interpret it restrictively, on the basis that Parliament must be deemed to have wanted any unfairness to be minimised.” In the same passage, the Judge says that the Act is “clearly intended as a measure to protect a vulnerable section of the public”. Both statements, used in the context of ‘retrospectively’ are equally relevant to the issue before me. 
15.	I do not consider these propositions to be inconsistent. I must of course bear in mind the needs to ensure compliance with article 6 of the European Convention of Human Rights. Mr Moffett referred me to Regulation 14 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002. This Regulation enables the Tribunal to exclude evidence from consideration on the grounds “(a) that it would be unfair in all the circumstances to consider it.” The Regulation is commonly used by the Tribunal, and any perceived unfairness to an Appellant may be ameliorated by a robust application by the Tribunal of this Regulation. 
16.	The third submission relied upon by Mr Carpenter is based on the power available to the Tribunal, with leave granted by it, to determine whether the worker should be confirmed on the list when no decision has been made by the Secretary of State within nine months from the date of placing the worker on the provisional list. (s 86(2)). On such an application, if leave is granted, the test in s 86(3) also applies, and Mr Carpenter submits that this provision must be interpreted in the same way in relation to an appeal as to an application for a determination.  He submits: “On an application for a determination, ‘misconduct’ can only be construed as relating back to the subject of the referral. It cannot have been Parliament’s intention that, where the Secretary of State fails to comply with her statutory obligation to make a decision within nine months, the care worker is thereby prejudiced, because the Tribunal can consider matters which it would not have been open to the Secretary of State to consider.” 
17.	I can see the force of Mr Carpenter’s argument, and I must bear in mind also that the entire framework of the ‘provisional listing scheme’ has been subjected to a detailed analysis by Mr Justice Stanley Burnton in Wright v Secretary of State and that he has stated that he does not think that the provisions of the Act in relation to provisional listing are compatible with Article 6 or are fair. He said: “It seems to me…that the prohibition on applications to the Tribunal for the period of 9 months is an unjustified interference with the care worker’s right of access to the courts.” 
18.	However, if leave is granted under s 86(2), the Tribunal has the duty to decide whether the Appellant’s name should be confirmed on the list. Its powers are as set out under s 86(3), and in my view, the Tribunal is not simply a substitute for Secretary of State. I accept Mr Carpenter’s submission that there may be cases where the postponement by the Secretary of State of making a confirmation under s 82(7)  so as to enable the Tribunal to conduct a wider investigation under s 86(2), could be conceived as an abuse. If that were to happen, no doubt the Tribunal would make a Direction under Regulation 14. But subject to that, I see no reason why the investigation of misconduct under s 86(2) should be limited to a s 82(7) exercise. If Parliament had wanted this to be the case, it would have said so. 
19.	Mr Carpenter draws my attention also to s 82(3) that states that a reference can be made to the Secretary of State by an employer, if subsequent discovery of material would itself have justified a reference. It is suggested that a new reference could be made, followed by another listing and another potential appeal. This is not an attractive argument. I cannot fail but be disturbed by the fact that such a procedure would add to delay, add to cost, and indeed, create increased uncertainty and worry for an Appellant. Mr Moffett talks about a ‘ping pong’ effect, and I agree with him that if Mr Carpenter’s argument on s 82(3) were to prevail, it would seriously undermine the purposes of the Act, namely to protect “a vulnerable section of the public.” 
20.	Thus, I direct that the Tribunal is not limited to considering allegation (ii) in the Respondent’s Response Form. 
21.	I direct that there be a further Preliminary Hearing to deal with the timetabling of this case for a hearing, and that this hearing take place by way of a telephone conference, to be arranged by the Secretariat, on a date no earlier than 14 days after the receipt of this Decision on the Appellant’s application.

His Honour Judge Pearl
President
19th February 2007.