Palmer v Secretary of State [2008] EWCST 1292(PC) (04 July 2008)

David Palmer
-v-
Secretary of State
[2008] 1292.PC

APPLICATION TO STRIKE OUT

1.	The Applicant in this case served an Application dated 16th April 2008 for leave to appeal against the refusal of the Secretary of State to remove his name from the Protection of Children Act list pursuant to his power under s 1(3) of the Protection of Children Act 1999. That section states; “The Secretary of State may at any time remove an individual from the list if he is satisfied that the individual should not have been included in it.”
2.	The Secretary of State seeks to strike out the application for leave on the basis that (a) it is outside the jurisdiction of the Tribunal or is otherwise misconceived (para 4A(1)(b)) and/or it has no reasonable prospect of success (para 4A (1)(d)). Further, the Respondent requests that if I were not to be in favour of striking out the application, then I should exercise my discretion to refuse leave to appeal.
3.	The Applicant exercised his right to have an oral hearing of the Respondent’s application, and this was heard in Newcastle on 2nd July 2008, when Mr Doggart of Treasury Solicitors represented the Respondent and Mr Palmer represented himself accompanied by his wife.
4.	It is relevant to this case to set out by way of background the following chronology. By letter received on 25th November 1998, the Principal Adoption and Fostering Officer at Newcastle City Council wrote to the Department of Health asking the Department to include Mr Palmer’s name on the non-statutory list (known as the Consultancy Service Index) maintained by the Department of persons unsuitable to care for children in any capacity. It would appear that the decision to refer him in this way was made by a Placement Panel on 15th September 1998 which was ratified by the Department’s Directorate in October 1998. Mr Palmer was notified of the decision taken to refer him in October 1998. He was sent at this time a document entitled “Recommendation for termination of approval as Foster parents.” 
5.	In the light of the information received from the Newcastle City Council, he was placed on the Consultancy Service Index as from 25th January 2000. There were three allegations of misconduct:
•	He abused one child he was fostering (N)
•	He had a sexual relationship with another child he was fostering (M)
•	His relationship with M continued after she left his foster care.
6.	He has always denied allegations (i) and (ii). He admitted that he had a sexual relationship with M, which started some years after she left his care. He says that this was consensual, and that she was of course an adult. He replied to the letter placing him on the Consultancy Service Index in those terms on 28th January 2000.
7.	The Protection of Children Act 1999 created a statutory scheme, and the Applicant received a letter from the PoCA team on 26th June 2000, to which he replied on 28th June 2000 stating that the allegations being made against him were totally false. He was placed on the PoCA list on 2nd October 2000. 
8.	He exercised his right of appeal. In the documents made available to the Tribunal at that time, he again admitted an “affair” with a consenting adult (M) who had left his care some years earlier, and he denied all of the other allegations. The Tribunal heard the appeal on 9th April 2001. The Applicant did not attend the hearing, although the Tribunal concluded that he was aware of the hearing date, and that the matter should proceed in his absence. The Tribunal found that the Applicant had been guilty of misconduct that harmed a child and that he was unsuitable to work with children. In particular, it is important to note that at paragraph 6 of its conclusions, the Tribunal said: “We concluded that the misconduct involving M after she left foster care is very serious and a substantial breach of trust.”
9.	The Applicant did not exercise his right to appeal this decision at the time.
10.	The next relevant date in the chronology is that, by letter on 19th March 2008, the Applicant wrote to the Respondent requesting the Respondent “to review my inclusion on the PoCA list.” By letter dated 9th April 2008, the Secretary of State replied to say that after careful re-consideration of his case, the Secretary of State had concluded that “he had provided no new evidence to conclude that he should not have been included on the list”.
11.	The Applicant exercised his right to seek leave to appeal. It is important to make clear what this appeal is not about. It is not an appeal under section 4(1)(a). The Applicant has already exercised his right to appeal under that section, and the Tribunal has already dismissed the Appeal having been satisfied on the evidence that the Applicant was guilty of misconduct which harmed a child and that he is unsuitable to work with children. Similarly, this appeal is not brought under section 4A as restricted by section 4B of the Act. Those provisions enable an Applicant to make an application to the Tribunal to seek leave for the Tribunal to determine whether or not the individual should continue to be included in the list. If the Tribunal is satisfied that the individual is no longer unsuitable to work with children it shall direct his removal from the list. However, this provision can be invoked by an Applicant only when he has been included in the list for a continuous period of at least ten years. In this case, the Applicant has not been included in the list for at least ten years. The ten years is completed on 2nd October 2010. Even if one where to include inclusion in the non-statutory list (which I do not believe was the intention of Parliament), in this case the ten years is completed on 28th January 2010.
12.	In this case, as in two other recent decisions of the Tribunal (Soper [2007] 1194 PC; PD [2006] 651 PC), the application concerns the appropriate test that the Tribunal should apply when considering appeals brought under section 4(1)(b) of the Act. In this case, there is the added point that his inclusion is based on the transfer provisions in section 3. Section 3(3) is the provision that is critical in this situation. It states that the Secretary of State shall include the individual on the list if…he is of opinion (a) that the organisation reasonably considered the individual to be guilty of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm; and that the individual is unsuitable to work with children. This provision is identical to section 2(7) which was considered in the other two cases, and where the inclusion was made after a referral by the specified employer. 
13.	Mr Doggart submitted that the application for leave should be struck out because section 3(3) was met in this case. He submitted that the Applicant had provided no fresh evidence either to the Secretary of State or indeed to me, to suggest that the Tribunal, if it leave were to be allowed for the matter to be considered by the Tribunal, could come to any conclusion other than that the Secretary of State had satisfied the section 3(3) provision. Therefore there was no reasonable prospect of success for this application. 
14.	Counsel for the Secretary of State in Soper made five points in his submissions in that case. I agreed with him in that case, and it is appropriate to repeat them here. They are as follows:
•	Given that the basis for an application under section 1(3) is that the individual should not have been included in the List and given that this is not a question that will be addressed once leave has been given, it should enter into consideration at the leave stage;
•	Unless this is the issue to be considered, an appeal against refusal under section 1(3) will be identical to an appeal against the original listing;
•	It would follow that the Applicant would be able to circumvent the time limits by simply making a request under section 1(3) at any time;
•	Further it would negate the efficacy of the removal provisions in sections 4A-4B by allowing multiple applications to be made within ten years of listing (eg on the basis of the Secretary of State not being able to prove present unsuitability). The whole thrust of sections 4A-4B is that once on the List, a person is to remain there for ten years and that in making an application for removal under section 4A care has to be taken as failure means a further ten year wait;
•	There is a policy sense that supports the suggested construction. It gives a person who can demonstrate that the Secretary of State should not have listed him (ie based on the material that the Secretary of State had) a right of appeal separate from the right of appeal against the listing itself.
15.	I believe that these propositions are as equally relevant to a situation where the individual has been included on the list by transfer from the non-statutory scheme as to a person who has been included on the list by way of a referral.
16.	Mr Soper sought a review of my Decision in that case on the basis, inter alia, that he should have been allowed to have submitted new evidence, or at least newly available evidence. Reference in the Review application in that case was made to paragraph 2(4)(e) of Schedule 4 of the Regulations which states that an application for leave must “include details of any new evidence or material change of circumstances since…[the] application for leave was determined which might lead the Tribunal to a different conclusion.”
17.	Mr Doggart quite fairly drew my attention to this provision, and was prepared to accept that this provision required me to consider any new evidence. He submitted however that there was no new evidence. This was the approach adopted by Mr Oliver in the Review of the decision in Soper, when he said: “New evidence is available to be considered but, armed with that new evidence, the test that has to be applied is whether or not the Appellant has demonstrated that the Secretary of State should not have included the Appellant on the list.”
18.	Paragraph 2(4)(e) is not an easy provision to interpret, and it must of course be read in the light of the legislation, and if there is any conflict, it is of course the legislation that prevails. Nevertheless, as Mr Doggart has conceded that I should consider any new evidence, I have in fact applied that approach in this case.
19.	There is no new evidence in this case. The Applicant continues to deny that he was guilty of misconduct, and he states that he has never been in trouble with the police. He says that he works as a pest control operator, and comes into contact with children in schools and elsewhere. As to the allegations, he says that M made the allegations after his relationship came to an end; and that she had made allegations against other people. 
20.	I take account of all of this evidence, and of the other matters that the Applicant drew to my attention in relation to the allegations made by N. However, I must consider the situation as it was at the time that he was transferred on to the PoCA list. On all of the evidence that I have read, and all of the evidence put before me at the hearing by the Applicant, I am inevitably drawn to the conclusion that section 3(3)(a) and (b)  were satisfied at that time. The evidence produced before the Secretary of State, and indeed before me, in no way alters that position. On the evidence, the Secretary of State was fully justified in transferring him on to the list in 2000, and there is nothing in the evidence that I have heard that leads me to believe, that that decision was wrong.
21.	In consequence, the Application under section 4(1)(b) for leave to appeal the decision taken under section 1(3) has no reasonable prospect of success. The application by the Respondent to strike out the application for leave to appeal must succeed under section 4A(1)(d). I grant the Respondent’s application to strike out.
22.	Under Regulation 4A(4), where the President (as in this case) has made a determination to strike out the application for leave, the Applicant may apply for the determination to be set aside. Such an application must be made not later than ten working days after the date on which notice of the determination was sent to the Applicant; and must be in writing stating the grounds in full.

APPLICATION GRANTED TO STRIKE OUT THE APPLICATION FOR LEAVE TO APPEAL.

His Honour Judge David Pearl
President
4th July 2008.