Hall-Turner v Secretary of State [2007] EWCST 972 (PVA) (19 April 2008)

Richard John Gordon Hall-Turner 
-v-
Secretary of State

[2007] 972 PVA
[2007] 973 PC
BEFORE:
Mrs Meleri Tudur (Chairman)
Mr Graham Harper
Mr John Hutchinson

15 and 16 April 2008

Mr Richard Smith of Counsel, instructed by the Treasury Solicitor, appeared on behalf of the Secretary of State.
Mr Hall-Turner was not represented.

Application
The Applicant appeals under Section 86 of the Care Standards Act 2000 against the decision of the Secretary of State for Health to include his name on the list kept under Section 81 of that Act and under Section 4(1)(a) of the Protection of Children Act 1999 against the decision of the Secretary of State to include his name on the list kept under Section 1 of the Protection of Children Act.

Preliminary
The Applicant made an application for the Tribunal to consider, as a preliminary point, its jurisdiction to adjudicate upon the effect of alleged procedural irregularities in the original process of referral to the Secretary of State, upon the inclusion of the Applicant’s name in the lists.
The Tribunal concluded that the Care Standards Tribunal, as a creature of statute, is limited in its jurisdiction to that identified within the relevant legislation, in this case, the Care Standards Act 2000.  The relevant clause of Section 86(1) of the Care Standards Act 2000 provides that “An individual who is included (otherwise than provisionally) in the list kept by the Secretary of State under section 81 may appeal to the Tribunal against – (a) the decision to include him in the list;.....” and Section 86(3) specifies: “If on an appeal or determination under this section the Tribunal is not satisfied of either of the following namely – (a) that an 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......”
The Secretary of State’s duty to keep a list of individuals who are considered unsuitable to work with vulnerable adults and the procedures to be followed when making referrals of individuals for inclusion in the list and when referrals are received by the Secretary of State, are contained in Sections 81 to 85 of the Care Standards Act 2000.  There is no reference in the Act to the Tribunal’s power to consider allegations of breaches of those statutory procedures or to the effect of breach of the procedures upon the inclusion of a name in the list or lists.
The Tribunal concluded that its jurisdiction is limited to the substantive appeal against the decision to include a name in the lists, and that it could not consider the allegations of procedural impropriety, such a matter being appropriate for consideration by judicial review in the High Court.

Background
1.	On the 28 September 2005, the Applicant was convicted of thirty two counts of making or possessing indecent images or photographs of children, and sentenced to six months’ imprisonment and ordered to place his name on the Sexual Offenders’ Register for a period of 10 years.
2.	At the time, the Applicant had been undertaking work for the Training Department of Knowsley Council and following a report in the local press, the matter was drawn to the attention of the Adult Protection Co-ordinator, who referred his name to the Secretary of State.
3.	On the 30 January 2006, the Applicant was notified by the Secretary of State that his name had been referred to the Secretary of State and that his name had provisionally been placed on both the Protection of Vulnerable Adults (“PoVA”) list and the Protection of Children Act (“PoCA”) list.  The letter invited his observations on the provisional listings.
4.	The Applicant responded by letter dated 10 February 2006 and claimed that the referral of his name by Knowsley Council was invalid because he was not employed by them.
5.	In April or May 2006, Knowsley Council acknowledged that the Applicant was not employed by them and that they did not therefore have the necessary qualifying status to refer.  Multi agency Adult Protection Strategy meetings were convened to discuss the case between July and December 2006.  The Commission for Social Care Inspection (CSCI) was represented at those meetings as the relevant regulatory body for adult care homes. 
6.	In September 2006, the Police applied to the St Helens Magistrates Court for a Sexual Offender Prohibition Order (SOPO) against the Applicant under section 109 of the Sexual Offences Act 2003.  An interim order was obtained on the 13 September 2006, specifying as the reason for the making of the order: “The Defendant has been associating with two females aged 13 years old.  One of the females he has been associating with her presented himself as being the grand dad of the other female to the female’s mother in order to gain her trust.”
7.	The Police sought that the order should include five conditions, three conditions regulating the applicant’s association with children under the age of 16 and two regulating his association with vulnerable adults.   The court applied only three, on the basis that there was insufficient evidence to support the final two, relating to his having unsupervised contact with any vulnerable person or entering any care establishment between the hours of 6pm and 7.30am.
8.	A final order, describing the same reason for making the order, was made on the 12 December 2006 and specifying three conditions regulating the applicant’s contact with children under 16.
9.	In October 2006, CSCI became a referring authority for the purposes of the Care Standards Act 2000 and on the 26 October 2006 referred the Applicant’s name to the Secretary of State.
10.	The Secretary of State accepted the referral but did not notify the Applicant and did not seek any observations from him upon the referral.
11.	On the 17 January 2007, the Secretary of State confirmed the Applicant’s name on both the PoVA and PoCA lists.
12.	On the 12 March 2007, the Applicant appealed against both listings.
13.	At the hearing of the appeals on the 15 April 2008, the tribunal heard evidence from the Respondent’s witnesses who confirmed that the reason specified for the making of the SOPO was incorrect and that the allegation mentioned about the applicant associating with 13 year olds did not apply to the Applicant and had been included erroneously.
14.	In the course of the appeal, the Respondent had commissioned a report by Prof Hilary Brown, Professor of Social Care, Canterbury Christ Church University, to address the issue of risk of harm to vulnerable adults from the Applicant.  The report made reference to the Applicant viewing child pornography in a care home office and reception area and described the risk of harm to vulnerable adults in those circumstances.
15.	The pornography that led to the Applicant’s convictions had been found on computers in the office and reception area at Claren House. 
16.	In response to the enquiries of the Tribunal panel it was confirmed in oral evidence that Claren House was an office building.  The evidence also confirmed that the Strategy meetings concluded that the Applicant presented a potential risk of harm, but that there had been no formal or structured assessment of the risk in the context of the Applicant’s work within care homes but reflected a general feeling at the meetings that there might be a potential risk to the vulnerable adults.
17. 	On the 16 April 2008, Mr Richard Smith made an application to the Tribunal to withdraw the Secretary of State’s opposition to both of the Applicant’s appeals.
18.	The Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (“the Regulations”) at Regulation 33(2) provides that: “If the respondent notifies the Secretary in writing or states at a hearing that he does not oppose or no longer opposes the proceedings, the President (or at the hearing, the Tribunal) – (a) must without delay determine the case ....... in the applicant’s favour; (b) subject to regulation 24 may make a costs order; and (c) must consider making one.”
19.	Under the provision of Regulation 33, the Tribunal without delay determined the case in the Applicant’s favour, having no other option but to allow the appeal.
20.	The Applicant indicated that he did not intend making an application for costs against the Respondent.

Conclusions
As evidence was heard over one day, there are matters arising from what the Tribunal perceives to be a catalogue of errors, which the Tribunal would like to draw to the attention of the parties, especially that of the Respondent.  There were four matters that caused concern, and it is our intention to ensure that the decision makers are aware of the causes of concern:
20.	Although outside the jurisdiction of the Tribunal for the purposes of a remedy, we noted that there were significant errors in the referral process, both by Knowsley Council, in their failure to identify a clear reason for the referral and the Secretary of State for the failure to adhere to the statutory procedure when the second referral was received. 
21.	The Adult Protection Strategy Meetings held between July and December 2006 lacked focus on the reasons for concern or any structured assessment of the risk allegedly posed by the Applicant.  On the evidence presented, decisions were made on the basis of “feelings” and “felt fear” which were not linked to any formal process of structured risk assessment, a process which is essential to identify the risk to vulnerable adults.
22.	The SOPO contained an incorrect reason, which does not appear to have been picked up or questioned by any of the professionals involved in the decision making process until the hearing of the appeal.
23.	Finally, the appeal was opposed without sufficient consideration being given to the reason for the opposition or indeed the grounds for opposition, and an expert’s report prepared based on a false premise that pornography had been viewed within a care home, a very serious allegation. Consequently, the opposition to the appeals were withdrawn when it became clear that the evidence did not support that premise.
24.	The appeals are allowed because there is no other option for the Tribunal under the Regulations.
25.	The decision is the unanimous decision of the Tribunal.

Order
Appeals allowed in accordance with Regulation 33 and no order for costs.
It is directed that the Secretary of State do remove the name of Richard John Gordon Hall-Turner from the Protection of Vulnerable Adults and Protection of Children Act lists.
Dated 19 April 2008

Chairman:	Meleri Tudur
Graham Harper
John Hutchinson