JM v Secretary of State [2007] EWCST 920(PC) (31 January 2008)

JM
v
THE SECRETARY OF STATE 

[2007]920.PC
[2007]921.PVA

On 14, 15, 16 and 17 January 2008 sitting in Leeds

BEFORE

Mr I Robertson (Chairman)
Mrs J Lowcock
Mr M Jobbins

REPRESENTATION

Ms C Price (Counsel) Instructed by the Royal College of Nursing for the Appellant

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

THE APPEAL

1.	This is an Appeal dated 13 February 2007 brought by JM against his listing on both the Protection of Children Act (POCA) and Protection of Vulnerable Adults (POVA) lists. He was placed on the lists on 28 November 2006. The appeal is opposed by the Secretary of State who after a preliminary hearing relied upon 8 grounds of objection. One of these was withdrawn prior to the hearing commencing and another on the second day of the hearing. Thus we are left with 6 grounds to consider which set out details of misconduct alleged;

i)	Maintaining a relationship with a vulnerable child N (now deceased) after that child left X children’s home in circumstances in which it was inappropriate to do so, and in so doing failing to respect professional boundaries between himself and the late N.
 
ii)	 During 2003 and 2004 concealing the fact of his relationship with N and his contact with her from staff at N’s Residential placement, Z, in circumstances where it was clearly inappropriate to so conceal such matters

iii)	 Purchasing various gifts for the late N while she was staying at Z in circumstances where it was clearly inappropriate to do so

iv)	 Meeting with N on numerous occasions when he had no authority from those caring for her to do so, and doing so unsupervised

v)	 Being complicit in N’s absconding from Z

vi)	 When applying for a position with NHS Professionals, failed to disclose a period of employment with A Agency, between about October 2000 and December 2003
The Appeal against placement on POVA list was opposed on the same grounds

BACKGROUND

2.	JM is a qualified nurse who obtained a position via “A” Agency in X, a Local Authority children’s home as a Care Worker, between September and December 2003. This was effectively a “second job” his primary work being as a nurse within the Health Service. His contract with “A” had begun in May 2002 although he had worked for them since 1999.  He is aged 31. Whilst at X he worked with N (dob 23/5/88). From all accounts they developed a good relationship that was appreciated by the Field Social Worker at least. She cited occasions when he took N to court with her. N was an extremely troubled young woman having been abandoned by her parents at 4 and left to be brought up by her maternal grandmother and her husband. It is reported that the grandparents had a long standing history of Mental Health problems, alcohol abuse and had been involved in Domestic Violence. Whilst in their care she became pregnant and miscarried.

3.	N was Accommodated by the local authority and whilst at X developed very worrying behaviours which at a crisis point in October 2003 were Psychotic in nature including hearing voices and accusing staff of poisoning her. On 22 December 2003 she was moved to Z Children’s Home. Her move appears to have been unplanned and based upon the needs of another child rather than hers. We have heard from a number of the Residential workers at Z and it appears to us that despite their best endeavours, this was not an appropriate placement. She quickly became isolated from other young people, stayed in her room including eating meals there. Her behaviour became increasingly bizarre, she described her nose moving around her face, she wore odd combinations of clothes, excessive and ill applied make up, talked to herself and stayed in her room shouting and screaming at voices in her head.

4.	 On 25 December 2003 N went to her grandparents for a visit. The Grandmother phoned to ask that she be collected. She said that she had been in contact with a worker at X called J. She elaborated upon this on Boxing Day and subsequently, saying that he had bought presents for N and indeed them. Much of this was confirmed by N. As a result JM was no longer allowed to work at Z by “A” and a strategy meeting was held. It was agreed that the grandmother and N would be interviewed by her social worker. Subsequent to this a formal S47 enquiry was initiated following a meeting on 6 January 2004. Inexplicably given that this is a formal statutory enquiry by social services the task of speaking to JM was delegated to the Manager of “A”; in the event this did not happen until February 2004 for reasons we will not pursue here. 

5.	The S47 enquiry appears to have petered out with no real progress made. It is clear from staff at Z that N said that she had an ongoing relationship with “J” who they took to be JM. She emphasised throughout that there was no sexual element to this. She was going out and bringing back bags with cigarettes and chocolates she said J had left for her. She broke at least 5 mobile phones that were replaced, her phones were constantly “topped up” she brought back clothes and on one occasion a brand new portable TV, still boxed, was left for her. She often got hold of alcohol and had a steady supply of cigarettes. 

6.	On one occasion in April 2004 staff got hold of her phone. There were two messages from J saying to delete these but more worrying 19 highly obscene and sexually explicit texts from “Darryl”. Darryl was said to be “Daz” a boyfriend she had since her days in Y. Despite the length of this relationship the nature of the texts, N’s acknowledged vulnerability, her possession of money and expensive gifts and her increasingly odd behaviour nobody appears to have investigated “Daz”. Nobody could tell us his age, ethnicity or his character. 

7.	Staff began following her and noting car numbers, amongst these were a red Saab, a blue ford fiesta, a car with false plates, a scooter which arrived late one night and on 28 June, 29 June and 8 July a black SAAB that belonged to JM. He accepted that he did pick her up on these occasions but that these were the only occasions he had seen her since working at Y. One car she was seen getting into, it transpired, belonged to her father who she had not seen for years. Subsequently it became apparent she had been seeing him occasionally.

8.	N’s behaviour continued to deteriorate and on 7 August she absconded for a time. She eventually found herself at a small Hotel run by a Mrs S. She took her in and she stayed there for the next year or so. Whilst there JM accepts he developed a counselling/mentoring relationship with N. The Secretary of State makes no issue about this in his grounds for opposing the Appeal. He does not say that this involvement amounted to misconduct. It is clear that N’s troubles escalated and her behaviour became more extreme. She was eventually removed from the S’s against their and N’s wishes and she was placed in a number of establishments that do not appear to have met her needs. On 24 December 2005, whilst staying with Mrs S for Christmas, she took a combination of pills and drink that led to her choking on her own vomit and sadly dying. The coroner recorded a verdict of accidental death.

THE LAW

9.	By S1(1) Protection of Children Act 1999 the Secretary of State has a duty to keep a list of individuals who are considered unsuitable to work with children. By Section 2 any organisation may refer an individual if certain conditions are satisfied. It was under this Section that JM was referred as set out above.

10.	S4 of the Act gives a person so referred the right to appeal to this Tribunal. By S4(3), the Tribunal may only dismiss the Appellant’s appeal if:

(a)	it is satisfied that he 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)	it is satisfied that he is unsuitable to work with children.

11.	There are in our view three tests to apply. The first two tests are conjunctive and the third only comes into play if the first two are both satisfied. The Tribunal has firstly to show an act or acts of misconduct AND secondly that that act (or those acts) have harmed a child or placed a child at risk of harm. It is only if those two tests are satisfied evidentially, applying the civil test as set out in Re H (below), that the third test is reached. We accept that the test of suitability is not an evidential test per se, but an exercise of discretion by the Tribunal applying its experience to the evidential matters it has considered previously. 

12.	Harm is defined by S12(1) of the Act as having the definition as set out by S31(9) of the Children Act 1989, which provides:
“‘harm’ means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another;
‘development’ means physical, intellectual, emotional, social or behavioural development;
‘health’ means physical or mental health;
‘ill-treatment’ includes sexual abuse and forms of ill-treatment which are not physical.”

13.	The Tribunal must consider unsuitability as at the date of the hearing before it. The Secretary of State bears the burden of persuading the Tribunal that both limbs of PoCA, s 4(3) are met. 

14.	In H and R [1996] 1 FLR 80, the House of Lords considered amongst other things the evidential test to be applied in Care Proceedings where serious allegations are being considered, in that case rape. It upheld the accepted test that decisions in civil proceedings have to be made “on the balance of probabilities” but clarified that the more serious the allegation and therefore inherently unlikely, the more cogent the evidence has to be to satisfy it. The allegations in this case are not of that degree of seriousness but nonetheless the impact of decisions made upon the findings are extremely serious.
 
15.	In considering the evidence therefore we have to be extremely careful to forensically analyse it. In this jurisdiction Hearsay evidence is admissible. One has to be extremely careful to remember that in all cases the “Best evidence” rule applies and that one should always look for first hand evidence, evidence that is corroborated independently or is forensically sound. Hearsay evidence has to be treated with great caution because of the difficulty of testing it and great care must be taken to not attach undue weight to such evidence. One also has to be careful to look at alternative explanations as to why a person not before the tribunal has said what they said and also whether what is said has been reported accurately.

PAPERS CONSIDERED BY THE TRIBUNAL

16.	We had before us 4 lever arch files of papers running to 1234 pages divided as follows;

1.	Pleadings and submissions
2.	Directions and Orders
3.	Appellants witness statements
4.	Respondent’s witness statements
5.	Correspondence between Treasury Solicitors and the tribunal
6.	Correspondence between TSOL and The Royal College of Nurses
7.	Appellant’s list of Documents including social services and medical records
8.	Respondent’s list of Documents

All these papers were considered by us.

THE EVIDENCE 

17.	We heard live evidence from 11 witnesses. 
 
18.	The first was Mrs N who was N’s social worker from December 2003 to July 2004. She interviewed N’s maternal grandmother on 6 January 2004 in connection with the allegations made against JM. She also interviewed N on 7 January and 24 February 2004, specifically in connection with these investigations. Under cross examination serious deficiencies were highlighted by Ms Price with the recording of the interviews. No contemporaneous notes were kept and the notes are clearly an amalgam of all that was said and give no picture of what was asked or how recorded comments evolved. Unfortunately Mrs N could not remember sufficient detail to help much beyond the bare bones as recorded.

19.	Ms Price took Mrs N through a thorough analysis of N’s medical records through to her diagnosis in July 2004 of “Reactive Attachment Disorder – exhibited by her persistent controlling behaviour with an apparent inability to conform to reasonable expected norms of behaviour”. Reference is made by the Child and Adolescent Mental Health Service Doctors to her lying and manipulation. Dr C said of her “I don’t believe she can be relied upon at all to tell the truth”. Ms Price also took Mrs N through the grandmother’s long history of mental health difficulties, problems with alcohol and domestic violence. Mrs N described them as difficult people to engage, with a long history of hostility towards social services.

20.	 Ms Price also took Mrs N through the many discrepancies between the statements N is said to have made to her grandparents and those she made to her and others. Mrs N accepted that she had not put these discrepancies to N. 

21.	 AH was manager of Z at the time N was placed there. She was telephoned by the Grandmother on 26 December at 2.40. (N had left the home at 2.20 and the grandmother had been asked to phone when she arrived). She said she had arrived with lots of Christmas presents and N said, when put on the phone, that she had called J and he had given her the presents and taken her round to see the grandparents. She said J lived close to Y and had been kind by buying “top ups”. He was 23 or 24 and just a friend. 

22.	 Ms AH had attended a strategy meeting on 6 January and had been tasked to undertake the S47 investigation. This was exhibited to her statement. She talked of N breaking her phone and getting new ones. She talked of finding the messages from Darryl and J on N’s phone, but could not satisfactorily explain what happened regarding the messages from Darryl, she thought she had given the phone to the police, but could not remember what had happened, if anything.  On cross examination and questions from the Tribunal it was put to her that with all the money received, Darryl’s texts and reports of different cars calling for her that she might have been being sexually exploited. She did not seem to think that this was a possibility. This despite it being highlighted in a risk assessment undertaken on 4 May 2004.

23.	 AP was a care worker at Z. He spoke to grandmother on 26 December when he went to pick N up. She again spoke of JM. He got the clear impression she said that she had met him. She did not mention that JM had given N any presents. He described quite movingly N’s decline over the months. He described following her when she left the unit on occasions. He described seeing her on the phone shouting “I don’t care, I don’t care”. He confirmed that her pocket money at 15 was £5 a week and clothing allowance about £30 a month. He confirmed that her expenditure on top up cards, alcohol, clothes, cigarettes and new mobile phones far exceeded this. In any event her legitimate expenditure was monitored by staff. 

24.	 LD was a YOT worker involved when N was arrested for assaulting Police officers in June 2004. From the records it is clear that she actually worked quite intensively with her from January 2004 but somewhat bizarrely, she could not remember this. She remembered being asked to check only two car numbers although it is clear others had been noted. One of the numbers she did check was JM’s car. The other appeared to be N’s father. She attended a multi agency meeting and must have known of the risk assessment of N that put her at High risk of sexual exploitation, she never discussed boys `with N. Although she was honest enough to accept that she never developed a relationship with her. She referred JM to the police data bank because of suspicions about his relationship with N, where as far as we are aware he remains.

25.	 DT was also a worker at Z. He saw N get out of JM’s car on 8 July and also confirmed that travel time between Y and grandmother’s home was between 15 and 35 minutes dependent upon traffic.

26.	 BH was a care worker at Z. She spoke to Grandmother at 2.30 on 26 December to warn her N had left to see her. Grandmother spoke of J as being a care worker at Y. She contacted her further on 29 December. Grandmother said J had given N jewellery, make up, and other girly things, she had not seen them however. She gave evidence about being told by Mrs JS that JM had booked N into the Hotel, paid for 3 weeks and when the money ran out, she had contacted social services. Almost alone of all comments in the witness statements this crucial evidence was not supported by a contemporaneous record. She thought the day was 20 August from other entries and could not explain the lack of a contemporary note, yet her statement is very detailed “I asked Mrs S and N how N was there. They said she had been booked in by J and that J had paid the rent. I asked if that was JM and they said yes. But the money had run out and that was when they had called social worker and had arranged for N to stay on paid for by Social services” 

27.	 She described an occasion when N received a new portable TV set still in its packaging. She described following N on an occasion and her getting into a black car although she could not describe it.

28.	 WA also worked at Z. He described N in similar terms to his colleagues. She did not fit in and he never formed a rapport with her. He gave evidence that N had turned up at a police station with JM on 12 August 2004. He had picked N up from her Grandmothers on Boxing day 2003 and confirmed she was not drunk

29.	 CS was another Care Worker from Z. Again she described having no rapport with N although it appears she did better than others as, at least on one occasion N made tea with her. She described N telling her that she had received a text from “J” in the following terms “I could sleep for England after the new year”. She was however confused about this, saying that it was verbatim but then that it was talking about N herself. She never saw the text or who it was from. She described N picking up a carrier bag and saying it was from J, and obtaining another carrier bag containing cigarettes and perfume from J. She described her getting a phone call from J.

30.	 JM then gave evidence. He confirmed his statement in which he admitted to taking N home once after meeting her in town and on another occasion responding to a distress call and taking her to see her previous foster carers.  He added orally a third occasion when he took her back to the hospital after he had been called following an altercation in town late one evening. It was put to him that this was a convenient recollection as the evidence was clear that she was spotted in his car three times. He accepted it may look that way but said he genuinely could not remember whether this was before or after she moved to the Hotel. He accepted that he had developed a good relationship with N whilst in Y unlike any other staff. He accepted that N may have regarded him like a brother. He felt she talked to him and developed a relationship unlike any other worker. 

31.	 He was clear in his denial that he had any contact with her before June/July 2004 or that he had given her any gifts. He said she had his phone number either from when he had lent his phone to her in Y one night or when he picked her up and she took one of his “cards” with the number on it. He denied knowing about the Section 47 enquiry or receiving full details of complaints against him. He denied ever being suspended from “A” agency. He said he omitted their details in his application to NHS Professionals because he filled the form in a hurry and they were not his main employers at the time. He pointed out that he had also omitted other jobs he had done and his involvement with the army.

32.	 The final witness was JS. She was a deeply impressive witness. She described finding N sitting on the wall of her Hotel in the rain. She took her in despite her very bizarre and difficult behaviour and over the next 15 months gave her the love, support and stability so lacking from childhood and her time in Care. She described a little waif, a size six who clearly had not bathed for weeks. She described N telling her of the poverty of her existence at Z, of the bullying by other children and general lack of warmth and care.

33.	 After she had taken N in, Mrs S called the police. They knew N well. They described how she would beg for money to buy alcohol, flag down strangers in cars to give her lifts and generally be a nuisance. N gave Mrs S JM’s number and she called him. She was deeply suspicious of him at first but over a relatively short period of time saw him to be a completely dedicated and nice person only interested in N’s welfare. She called on his support when N became impossible for Mrs Stevenson and her husband to cope with. She described him as saving N’s life when they were struggling with minimal support from Social Services and the Health Services. It was poignant to note that N seemed to fall between the CAMHS and Adult mental health services. She described how she was advised by N’s then social worker to use JM for respite.

34.	 She got to know and trust N. She found out about all N’s dubious friends, in particular Daz and her first boyfriend Darren, who had taught her to beg. She described N as being infatuated with Daz and calling five times a day for the rest of her life. She described the research she had done to find out about N’s past as Social Services` would not help. She described how ill both her grandparents were, how N had to endure their frequent suicide attempts and relapse into ill health and alcohol abuse.

ANALYSIS

35.	It is for the Secretary of State to prove its case to the requisite standard. The allegations against JM are serious and if found proved would mean the end of his chosen career. Accordingly we have to be vigilant in ensuring that the evidence is capable of rigorous consideration. The original comments of the Grandparents were made to Mrs H and repeated by N on the telephone on 26 December. These rightly raised concerns and led Mrs N to see the grandparents to investigate matters further. Given the nature of these allegations and the potential impact upon JM and upon N, we are surprised that the interview was not better planned, recorded and analysed.
 
36.	 The comments of the grandmother are second-hand hearsay. They report what N says. The recording of what they say N said, is so poor that we cannot place any weight upon it save in one respect. Grandmother said that she had never met JM but had on Boxing Day 2003 spoken to him on the phone. She said that she could not understand him as his accent was so thick. This is an important piece of information as this is the only thing that was said that was first hand. It is also important as it tends to exonerate JM as he is a man with no strong accent. When put to Mrs N that this was important, she said that at the strategy meeting there had been discussion that he may have been drunk. This is palpable nonsense as it is clearly accepted that JM was at work on Boxing Day and obviously not drunk. We fear that this issue demonstrates a mind set that was beginning to be formed regarding JM’s guilt.

37.	 N’s comments about JM were extremely worrying. He was in a position of trust and having formed a relationship with her in a professional capacity, the scope for abuse and grooming of this incredibly vulnerable young woman is obvious and real. It was important though to treat what she said with caution. She was a girl with serious behavioural and mental health problems. Tentative diagnoses of Schizophrenia had been made, she was described as lying and manipulative, would self harm and use drugs and alcohol. We know she was in possession of a series of unexplained gifts and expensive goods. It should have been clear to all that she may have been laying down a “smoke screen” to hide other activities. It should also have been obvious that the receipt of such presents meant that this was a young person at risk of harm. We are frankly amazed that Social Services took little action to investigate the gifts.

38.	 The possibility of a “smoke screen” or of her being in an exploitative relationship, does not seem to have seriously been considered, yet there is plenty of evidence that N was having an ongoing relationship with a number of men, was seen to get into a number of different cars and when her phone was examined it contained 19 obscene messages from Darryl (or Daz). The same Daz who appears throughout the records as being her boyfriend and yet who Social Services to this day know nothing about, not even his age. In describing the phone messages the professionals seemed more exercised by the two from “J” saying to delete than the sexually explicit messages to a 15 year old child in care. We took particular note that although Ms H had possession of the phone no transcript of the calls or note of the telephone number sent was made. If a note had been made of the number we did not see it and assume if it was examined or passed to the police, it was not that of JM. If this is the case why were we not told?  If it was not his, but another person called J (which is not an uncommon name) why was this not investigated further. Social services had the opportunity to obtain proper forensic evidence, they either acted incompetently in not following this up or have not disclosed to the Secretary of State documents that may cast a different light on things.
 
39.	  Given all this, what N said should have been rigorously examined and all discrepancies analysed. Sadly this did not take place and Ms Price has highlighted many discrepancies in what she said to different people; To take just a few;        (i) “J lives near the children’s home” – he does not he lives 18 miles away,  (ii) he only worked at Y for 3 months not 8 or 6 as reported by N; (iii) the presents described to different people change, (iv) twice N said she had been with J to then say to the Police she had been with other people called B and A; (v) She told CS that she had been called by J but told Ms N he never called. (vi) She told CS she had received perfume from J in January but told Ms N she had never received any perfume since leaving X.

40.	 Mrs H was not impressive in her evidence. As Officer in charge of a Children’s home she had the care of a young girl in receipt of a huge amount of financial and other “presents”. She appears to have made little attempt to get to the bottom of this. Staff were tasked to follow N and take down registration numbers. Some numbers were obtained for which we can see no follow up action and all this seemed to stop when at last JM’s number plate was confirmed. As Mrs N put it, “we had got him”. We now know from Mrs JS that N’s activities were widely known. She begged for money to buy alcohol and regularly flagged down strangers, yet her care staff knew none of this. If N was being sexually exploited nobody did anything to investigate or stop it. The Section 47 investigation was ill thought through, was focused in reality not upon N as it should but JM, a fundamental aspect of it given to an outside private agency and the conclusions reached are unacceptable in context;

“As a result of JM’s non co-operation, it has not been possible to conclude the enquiry or make appropriate recommendations”

41.	A subsequent strategy meeting on 26 February petered out with no conclusions or recommendations with regard to N’s well-being other than to say that the Local Authority will continue to be vigilant. The concentration of the enquiry was on JM not on other issues and concerns regarding N’s well-being that should have been picked up.
 
42.	 It was only when we heard from Mrs S that we got a picture of N. It is clear that none of the staff at Z who gave evidence knew her in any depth. We got no picture of her from the testimony of the Care Staff. She was ill-placed and allowed to get on with her life with minimal support. It is obvious to us that the staff at Z knew nothing about what N was doing when she left the unit. They and social services were so wrapped up in trying to pin the blame on JM that they actually missed what was happening. If the police knew, why did they not know? 

43.	 Having said all this there are aspects of JM’s evidence that cause us considerable concern. We are worried about how N got JM’s number; his explanations frankly were vague and hesitant. We would have expected him to be much clearer in this matter if he were not prevaricating. 

44.	 There is force in submissions made by Mr Auburn that JM came up with his three admissions about seeing N on what is now clearly 28 June, 29 June and 8 July, to meet the irrefutable evidence against him. Meet it he has however, whatever suspicions we may have about the convenience of late memory. 

45.	 We are also left wondering whether given what we now know of him, that he could actually just have walked away from N on 22 December 2003, given the close, and appropriate, relationship that he had. We are left with a suspicion that he did indeed maintain a degree of a relationship with N between December and late June. Our suspicions however have no evidential value, as a proper analysis of the evidence makes it clear to us that we cannot be satisfied on the balance of probabilities that he did. The evidence that he did comes from N and is so deeply flawed, in the way that we have described, that it simply cannot be relied upon.

46.	  All there is before us are a number of contradictory statements from a grandmother with a history of serious mental illness and alcoholism with known grudges against Social Services and statements by a child with serious mental health and behavioural problems, clinically labelled as a liar and manipulator, who may well have used the name J as a “smoke screen” to cover her activities. We know she was involved with lots of men, we know she begged and acted oddly. We know she was infatuated with Daz and we know Social Service staff in their evidence to us had apparently little idea about what she was doing. 

47.	 We are alarmed at some of the statements on file about JM. We believe Mrs S absolutely when she says she found N sitting on her wall. The pathos in what she said was clear, yet there are Social Services recordings saying that JM took her there and paid for 3 weeks rental. Why was this set out so clearly in Ms H statement yet remained unsupported by any contemporaneous document?

FINDINGS

48.	We turn to each ground in turn as set out in Paragraph 1 above;

i)	Maintaining a relationship with a vulnerable child N (now deceased) after that child left X children’s home in circumstances in which it was inappropriate to do so, and in so doing failing to respect professional boundaries between himself and the late N.

There is insufficient evidence to satisfy this ground.
 
ii)	 During 2003 and 2004 concealing the fact of his relationship with N and his contact with her from staff at N’s Residential placement, Z, in circumstances where it was clearly inappropriate to so conceal such matters

There is insufficient evidence to satisfy this ground

iii)	 Purchasing various gifts for the late N while she was staying at Z in circumstances where it was clearly inappropriate to do so

There is insufficient evidence to satisfy this ground

iv)	 Meeting with N on numerous occasions when he had no authority from those caring for her to do so, and doing so unsupervised

There is insufficient evidence to satisfy this ground

v)	 Being complicit in N’s absconding from Z

There is no evidence to satisfy this ground

vi)	 When applying for a position with NHS Professionals, failed to disclose a period of employment with A Agency, between about October 2000 and December 2003

We are satisfied that he did omit his employment with “A” when completing his application for a position with NHS Professionals on 9 January 2004. It is important to note that he was not applying for a new job per se, but rather another agency which was effectively the successor organisation to that which provided his main nursing work. We have seen the application form and it was clearly completed hurriedly, he says over a lunchtime. He omits other work such as with the Army. 9 January was early in the investigations. It is asserted that he was suspended from “A” but no evidence has been produced to confirm this. We do not feel that this omission was such as to amount to misconduct

49.	It follows that as we have found that the evidence does not show misconduct we do not have to consider the question of harm or of unsuitability. We would say however that all we have heard of JM suggests to us that he is a thoroughly dedicated person who has done much for Young People and others. He has and will continue to make a major contribution to the well being of young people.
 
50.	We should add that despite our apparent damning findings, this is yet another example of a case that only took shape once oral evidence was heard and tested. There was a clear prima facie case on the papers and the Secretary of State brought the case entirely appropriately.
 
DECISION

60.	We uphold JM’s appeal against his inclusion on the POCA list.
 
61.	We uphold JM’s appeal against his inclusion on the POVA list

APPEALS ALLOWED

This is the unanimous decision of the Tribunal

Mr I Robertson (Chairman)
Mrs J Lowcock
Mr M Jobbins
Date: 31 January 2008