JD v Secretary of State for Education and Skills [2007] EWCST 920(PC) (01 October 2007) 

INTERIM DECISION

Appeal No [2007] 920.PC

BETWEEN:

JD

-and-

THE SECRETARY OF STATE FOR EDUCATION AND SKILLS 

On 15 October 2007 sitting at the SENDIST Hearing Centre, Procession House, Ludgate Hill, London

BEFORE

Mr I Robertson

REPRESENTATION

Ms Price (Counsel) instructed by the Royal College of Nursing appeared for the Appellant

Mr J Auburn (Counsel) instructed by the Treasury Solicitor appeared for the Secretary of State

THE APPLICATION

1.	This is an application to amend the Grounds of opposition to the Appeal brought by JD, made on behalf of the Secretary of State under Regulations32 (2) Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (The Tribunal Regulations)

THE BACKGROUND

2.	This is an Appeal brought on 9/2/07 by JD against a decision by the Secretary of State to place his name on the POCA list as a result of allegations of an inappropriate relationship with a young person. This followed a referral to the Secretary of State by an Agency under S2 of the Protection of Children Act 1999. In the grounds for opposition to the Appeal the Secretary of State lists 7 matters all the subject of this referral. The Secretary of State was aware that there were simultaneous proceedings involving JD before the Nursing and Midwifery Council. After the grounds for opposition were lodged the Secretary of State had sight of the evidence backing those proceedings. They involve allegations regarding the same young person but occurred later in time and after JD had been removed from the books of the referring agency. The Secretary now applies to amend the grounds to include this matter. This is opposed by the Appellant.

THE LAW

3.	Regulations32(2) Tribunal Regulations;

“The Respondent may amend the reasons he gives for opposing the applicants case or application for leave, as the case may be, but only with the leave of the President or the nominated chairman (or at the hearing, with leave of the Tribunal)”

S1 Protection of Children Act 1999

“ (1) The Secretary of State shall keep a list of individuals who are considered unsuitable to work with children.

(2) An individual shall not be included in the list unless –

(a)	he has been referred to the Secretary of State under S2 or S2A or S2D below or Part VII of the Care Standards Act 2000……..”

S2 places a duty on child care organisations and a discretion on other organisations to make referrals to the Secretary of State for inclusion on the List of any individual they are taking disciplinary action upon (or would have if he had not resigned or retired or been made redundant) because of misconduct that harmed or placed a child at risk of harm.

By S2(5) the Secretary of State invites observations from the organisation and individual and by S2(6) determines whether to confirm him on the list if S2(7) applies or otherwise remove him from the list

S2(7) provides;

		“This subsection applies if the Secretary of State is of the opinion –

(a)	 that the organisation reasonably considered the individual to be 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
(b)	 that the individual is unsuitable to work with children”

4.	The effect of this section is that Listing follows a referral from a child care or other organisation following disciplinary action by that organisation. The Secretary of States role is effectively to reviewing the decision of the organisation. He does not have a duty to hear a case “de novo”. It is common ground in this case that the existing 7 grounds of opposition relate to a S2 referral. The point of contention in this case is that the additional ground that the Secretary of State seeks to add relates to a freestanding matter that outside the referral. Indeed, again it is common ground that at the time of this alleged misconduct the Appellant was off the referring organisations books and was employed by a wholly different organisation.
 
5.	 The argument of Ms Price on behalf of the Appellant is that I cannot allow a ground of opposition to be put forward which does not fall within S2 as this may have the effect, if the seven other grounds fall away, of the Appeal failing because of this ground being agreed by the Tribunal and the Appellant remaining on the list in a way that the Secretary of State could not have listed in the first place. 

6.	She says that as a creature of Statute the Tribunal cannot have greater power than the Secretary of State without clear Statutory authority.

7.	 So where does the Tribunal obtain its authority from? The Tribunal was created by  S9 of POCA 1999

“S9(1) There shall be a Tribunal (‘The Tribunal’) [which shall exercise the jurisdiction conferred on it by Section 4 and regulations made under section 6 above]”

S4(1) provides;

“An individual who is included (otherwise than provisionally) in the list kept by the Secretary of State under Section 1 above may appeal to the Tribunal against-

(a)	the decision to include him in the list…….

S4(3) provides;

“If on any 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 a child or placed a child at risk of harm; and
(b)	that the individual is unsuitable to work with children,

The Tribunal shall allow the appeal or determine the issue in the individuals favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individuals inclusion in the list”

8.	If S4(3) is contrasted with S2(7) it is clear that the role of the Tribunal is not to review the Secretary of States decision but to hear the matter afresh to determine the matters set out in S4(3)(a) and (b). It has to be satisfied that the individual was guilty of misconduct which harmed a child or placed a child at risk of harm AND that the individual is unsuitable. It is entitled to find misconduct but not unsuitability and suitability does not have to be restricted to matters stemming from the findings of misconduct. The question of suitability is entirely within the discretion of the Tribunal.
 
9.	 The role of the Tribunal is Judicial not administrative. It provides an Appellant with a Fair Trial in accordance with his Article 6 Rights under the European Convention. It was established by Parliament to ensure not only that the Appellants rights are protected, but also in appropriate cases, to ensure that the purpose of the legislation is achieved. In this case the purpose of the legislation is clear from its Title – The Protection of Children.

10.	 In my view it follows therefore that the question of listing and Appeal are not linked in the manner suggested by Ms Price. The Jurisdiction of the Tribunal is engaged by the Appeal from the listing under SS 1 and 2. If the original listing is intra vires then the Tribunal has appropriate jurisdiction. The Tribunal is not constrained by S2 in the same way as the Secretary of State. The Tribunal can therefore consider matters not considered by the Secretary of State indeed it has a degree of inquisitorial power in terms of giving directions, requiring production of documents and witnesses and appointment of Experts. If the net result of this is that a person remains on the list in circumstances where the Secretary of State could not have placed him on the list in the first place, this is what was envisaged by Parliament.

11.	Accordingly I do not accept that I have no jurisdiction to allow the amendment sought.

12.	 In applying my discretion under Regulations32 however I have to be mindful of a general duty of Fairness. Any amendment should not take the Appellant by surprise or be merely speculative in nature. It must be particularised and clear and have relevance to the issues before the Tribunal. In this case it relates to the same young person, is the subject of a disciplinary matter before the Appellants disciplinary body for which he is legally represented and is clearly relevant to the issues in hand.

13.	 Accordingly I allow the amendment. 

Ian Robertson