IN THE UPPER TRIBUNAL	Case No.  V/1565/2011
ADMINISTRATIVE APPEALS CHAMBER

Before 	Judge E A L Bano
		Ms Linda Redford
		Mr Raymond Winn

Attendances:

For the Appellant:	Mr  Christopher Smale, Solicitor

For the Respondent	Ms Sarah-Jane Davies of Counsel, instructed by the Treasury Solicitor

Decision:  The decision of the Upper Tribunal is to confirm the decision of the ISA.

REASONS FOR DECISION

1.  On 7 October 2009 the appellant was convicted on his plea of guilty of two offences of wilfully assaulting/ill treating/neglecting a child, contrary to section 1(1) of the Children and Young Persons Act 1993, and one offence of occasioning actual bodily harm to his wife.  He was sentenced to twelve months imprisonment, suspended for two years, with a 12 month supervision requirement.  As a result of his convictions under the 1993 Act, the appellant became liable to automatic inclusion on the Children’s and Adults’ Barred Lists under paragraph 2 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (‘autobar with reps’).  Following representations from his solicitors, the appellant was notified by letter dated 3 March 2011 that he was to be removed from the Adults’ Barred List, but that he was to remain on the Children’s Barred List because the ISA considered that he                                      represented a risk of future harm to children.  It is against that decision that he now appeals, with permission given by Judge Lane on 8 November 2011.

2.  In 2002 the appellant met a woman with three children, each from different relationships, whom he married in 2004.  At the time of the appellant’s trial, the children were aged 16, 13 and 8.  The appellant also had a daughter living with him who was then aged 7.   The appellant’s wife was described by his counsel at his trial as “a complex and troubled individual” and the children had serious behavioural problems.  The family also faced very serious financial pressures and it is clear that the relationship between the appellant and other family members was volatile, and at times violent.

3.  As a result of a complaint made by his wife, the appellant was arrested on 17 March 2009 and interviewed under caution.  He was originally charged with nine offences and was remanded in custody for a total of 135 days before being released on bail.  However, as a result of discussions between the prosecution and defence, the indictment was reduced to four charges.  In addition to the offences to which the appellant pleaded guilty, he was charged with rape of the oldest child, but his plea of not guilty to that count was accepted by the prosecution and the court.

4.  Despite the discussions which had taken place between the parties, the prosecution made it clear at the trial that they did not necessarily accept the basis on which the appellant was prepared to offer a guilty plea.  However, the trial judge came to the conclusion that he could nevertheless proceed to sentence the appellant without the need for a “Newton” hearing (a hearing on a guilty plea to establish the facts for sentencing purposes).  The basis of the guilty pleas was set out in a document drafted by defence counsel, as follows:

“The defendant is prepared to plead guilty to Counts 2, 3 and 4 on the following basis:

In respect of Count 4 the defendant accepts that during the course of his relationship with [his wife] there were angry and violent exchanges between the two of them.   The defendant accepts that on occasions he slapped the complainant and placed his hand against her neck/throat area and in doing so acted unlawfully and excessively.   The defendant never punched the complainant, kicked her or used any weapon in the course of the exchanges which took place.

The assaults were never pre-meditated and did not involve an intention to cause serious harm.

The defendant accepts that that on a very limited number of occasions he caused a mark or minor bruise to the complainant, the injuries were never serious and did not involve residual disability or disfigurement.

In respect of Count 2 the defendant accepts that on one particular occasion J [the oldest girl] witnessed a dispute between the defendant and her mother.  The defendant accepts that in seeking to move J away from the confrontation he used excessive and unnecessary force inter alia pushing her onto the her bed.  The defendant was not aware that the complainant’s head had struck the bedroom wall but accepts that it did so.

The defendant accepts that he did on occasions slap J across the back of the head.  The defendant accepts on reflection that the use of his hand in these circumstances was inappropriate and excessive.  The defendant delivered no more than one or two slaps on any single occasion.

These slaps were not delivered with substantial force, were not designed to injure the child and in fact caused no injuries.

The defendant accepts that on discovering that the complainant had taken inappropriate photographs on a mobile telephone, he confronted her about the issue.   When the complainant was uncooperative with his enquiries and the issues raised the defendant accepts that he did slap the complainant to the back of the head.  He did not repeatedly strike the child but accepts that his use of the hand was inappropriate and excessive.

The accused does not accept that any of the allegations of a sexual nature made by J against the accused took place.   At no time did he inflict physical injury on the child or intend to harm the child.

In respect of Count 3 D [the second oldest child] was a disruptive and on occasions violent child, he was an extremely difficult child to deal with and particularly to discipline.  From time to time both the Defendant and [his wife] used physical chastisement.  On occasions the defendant slapped the child which on reflection he accepts by his plea of guilty to Count 3 was unnecessary and excessive.

At no time did he inflict a physical injury on the child or intend to harm the child.”

5.  In his plea in mitigation, defence counsel referred to the appellant’s lack of experience in bringing up children, the stresses to which he had been subjected in the family setting and his good character.  He asserted that what the appellant did “…was to use chastisement in the context of a man who was deeply troubled by his own failing matrimonial relationship and financial difficulties”, and that injury was never intended, but accepted that under the relevant sentencing guidelines the custody threshold had been passed.  Counsel concluded by expressing the appellant’s deep regret for having behaved in an inappropriate way.

6.  In sentencing the appellant, the judge referred to the “complex family and domestic background” to the case.  The judge identified the appellant’s guilty plea, his good character and his good reputation as mitigating features which placed the case at the lower end of the middle range of the sentencing guidelines for the offence i.e. from two to five years imprisonment.  The judge then referred to the length of time which the appellant had spent in custody as a “prominent feature” of the case and on that basis he concluded that he could sentence the appellant to a suspended sentence of imprisonment, in accordance with the recommendations of the probation officer’s report.

7.    The ISA wrote to the appellant on 13 May 2010 notifying him of his inclusion on the Children’s and Adults’ Barred Lists and of his right to make representations as to why he should be removed from both lists.  In response, the appellant’s solicitors wrote to the ISA on 16 August 2010, enclosing copies of the basis of plea at the Crown Court, the transcript of the sentencing hearing and seven character references.  The appellant also provided another statement giving further details of the family history and his account of the reasons for his actions.  Following receipt of those documents, the ISA obtained from the police details of the original charges and the PNC data report, which the appellant’s solicitors commented on in a letter dated 29 November 2010.

8.  The published policy of the ISA is to use a structured decision process in making barring decisions. Stage 3 of the process is a risk assessment tool called the Structured Judgement Process (“SJP”), the main features of which have been described by the Upper Tribunal in VT v ISA [2011] UKUT 427 (AAC) (see paragraph 14).  In this case the ISA decided to retain the appellant on the children’s barred list, but without applying Stage 3.  Their reasons for doing so are included in the Final Case Summary (Stage 4 of the decision making process):

“It is considered that insufficient information is available in this case to be able to undertake Stage 3 of the Structured Judgement Process and establish the drivers behind [the appellant’s] behaviour. Although it appears a substantial amount of additional information exists, which may aid this process, it is believed that much of this would be difficult to  obtain and would in any event be of limited value, as a conclusion on this case can be made based on what is already on file.  It also appears the nature of this additional information could potentially raise additional concern with regard to [the appellant].  Victim impact statements and probation officer reports may be of particular relevance here.

Although [the appellant] has provided seven supportive testimonials, which are on the whole positive, some aspects of these are of note.  It is apparent that all of the testimonials that are dated (five in total) are provided prior to [the appellant’s] conviction.  In addition, one testimonial is from [the appellant’s] father, with another describing him as ‘a paranoid (with good reason) wreck’.

In addition, [the appellant] has emphasised on a number of occasions that he slapped the children on the back of the head stating ‘these slaps were not delivered with substantial force, were not designed to injure the child and in fact caused no injuries’.  However, [the appellant] has then gone on to accept this conduct was ‘excessive’.  These two statements therefore appear to be opposed.  The fact of the matter is that chastising a child with a slap to the back of the head would not usually lead to action from the authorities.  Therefore, to be remanded in custody and receive a suspended sentence, the Judge must have believed [the appellant’s] behaviour was to such an extent that it was excessive force and therefore was clearly harmful.    It is difficult to accept the Judge imposed sanctions of this nature for, as [the appellant] states ‘one or two slaps’.   This statement itself suggests [the appellant] fails to grasp the serious nature of his misconduct.

It is also evident that [the appellant] has also made much of [his wife] being violent towards him.   The case evidence shows [the appellant] has sought to both minimise his own conduct as well as apportioning blame to others.  It is a matter of fact that it is [the appellant] and not [his wife] that has received a conviction for assault/ABH.  [The appellant’s] representations are of note in that he claims that his convictions were a result of two incidents, which by his explanation were extremely minor.  Again, the point can be made that being remanded in custody and receiving a conviction for three offences does not appear to match up to the description [the appellant] ahs offered.

Although it is accepted that [the appellant’s] relationship with [his wife] was undoubtedly difficult, it is of note that the Judge was fully aware of the domestic problems that existed.  Indeed, the judge has more information than is presently available to the ISA to base his decision on, and still opted to sentence [the appellant]. Although it is accepted a suspended sentence may be deemed a more lenient sanction and suggestive of a less serious offence, it is noted that in this case [the appellant] was in custody for almost five months prior to sentencing which the Judge accounted for.

In conclusion therefore, although reference is made to the children being difficult, [the appellant] experiencing problems being a step father, and also lacking experience with children, it is not considered even a combination of these factors can justify the behaviour [the appellant] engaged in.   The case information has not provided sufficient assurances to suggest that were [the appellant] placed in a stressful situation with children again, he would not repeat aspects of his harmful behaviour.   It is of note [the appellant] has been described as being ‘overwhelmed’ by the situation he found himself in, and also that he was a paranoid wreck.  Furthermore, the apparent minimisation of the behaviour is of concern.   This is best summarised in the following terms.   Whilst both police reports stated the abusive behaviour occurred on ‘numerous occasions’, over a three year period and involved ‘throttling’ of the children, [the appellant] has in contrast suggested this occurred on only two occasions, the conduct being minimal.  It is evident that in terms of weighting, it would seem reasonable to apportion greater significance to the police version of events.  Finally, it is evident that the conviction on this case still applies.

Therefore, there are too many outstanding concerns on this case to justify a revocation decision on the Children’s List.

In contrast, with regard to vulnerable adults, whilst there is some evidence of an assault against his partner[…], this alone is considered insufficient to merit barring on the vulnerable adults list.  Indeed, although an adult, [the appellant’s wife] would not fit the criteria of a vulnerable adult in the Safeguarding Vulnerable Groups Act.

It is therefore recommended that the bar prohibiting [the appellant’s] employment with children is retained, whilst the bar with regard to vulnerable adults is revoked.”

9.  In a letter dated 9 March 2011, the appellant was notified of the decision to remove him from the Adults’ Barred List but to retain him on the Children’s List.  On 9 June 2011 his solicitors applied on his behalf for permission to appeal, on the following grounds:

 “[the appellant’s] claim is that the actions for which he was convicted in the Crown Court were those of a normal parent dealing with the unusually difficult behaviour of the children in his care.

This is backed up by the fact the children did display difficult behaviour and had difficult histories and background as confirmed by the documentation in the case.

Although [the appellant] pleaded guilty, admitting that his chastisement was inappropriate and excessive, from an objective point of view the incidents were not serious and should not be considered as being outside normal parental chastisement.”

10.  At the oral hearing of the permission application on 8 November 2011, Judge Lane had before her a version of the barring decision process document with manuscript additions, but not the final version.  On the basis of the recently decided case of VT, Judge Lane gave permission to appeal because she considered that under paragraph 3.12 of the authority’s unpublished ‘Departures from the SJP Guidance’ it was mandatory for the authority to escalate to senior management, and then to the ISA Board, cases in which the criteria for critical concerns in Stage 3 of the SJP were not met, but it was nevertheless considered that a barring decision was appropriate.  Judge Lane also considered that it was arguable that the observations in paragraph 3 of the Final Case Summary about the seriousness of the appellant’s conduct failed to take into account the fact that the original very serious charges were not proceeded with, and that for that reason also the authority should not have accorded ‘heavy weight’ to the information concerning those charges provided by the police.  Finally, Judge Lane expressed the view that the authority’s decision was flawed because of its failure to consider the peculiar domestic context in which these offences arose in relation to the risk of harm to children in an entirely different context.

11.  In response to the observations made in the grant of permission to appeal, the Treasury Solicitor wrote an open letter to the Upper Tribunal dated 26 January 2012, stating: “The ISA has taken into account (and accepts) the Upper Tribunal’s comment that: “The basis for according heavy weight to the [police] report…is arguably misconceived.”  The letter stated that the Treasury Solicitor had written to the applicant’s solicitors on 10 January 2012 with a draft consent order inviting the appellant to agree to the quashing of the authority’s decision of 9 March for a fresh decision to be made.  However, the appellant’s solicitors did not respond to that suggestion and the proceedings were stayed for six weeks on 6 February 2012 in order to allow the authority to reconsider its original decision. 

12.  The authority’s review took into account not only the documents on which the original barring decision was based, but in addition the transcripts of the original police interviews with the appellant and his wife, the appellant’s pre-sentence probation report, an Offender Assessment System Report prepared following the appellant’s conviction and provided for the Upper Tribunal by the appellant himself, a letter from the appellant’s solicitors dated 5 August 2011 together with a further statement from the appellant dated 4 November 2011, and further representations to the authority from the appellant’s solicitors dated 22 February 2012.  However, the decision taken on the review was to confirm the original decision and, accordingly, the appeal proceeded to a hearing.

13.  Our powers on this appeal are governed by section 4 of the Safeguarding Vulnerable Groups Act 2006, which so far as material, provides:

“An individual who is included in a barred list may appeal to the Upper Tribunal against
(a) a decision under paragraph 2 or 8 of Schedule 3 not to remove him from the list:

(2)  An appeal under subsection (1) may be made only on the grounds that ISA has made a mistake-
(a)  on any point of law;
(b) in any finding of fact which it has made and on which the decision mentioned in that subsection was based.

(3)  For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.

(4)  An appeal under subsection (1) may be made only with the permission of the Upper Tribunal.
(5)  Unless the Upper Tribunal finds that ISA has made a mistake of law or fact, it must confirm the decision of ISA.

(6)  If the Upper Tribunal finds that ISA has made such a mistake it must-
(a)  direct ISA to remove the person from the list, or
(b)  remit the matter to ISA for a new decision.” 

14.  We consider first the issues raised in the grant of permission to appeal, which Mr Smale relied on as the basis of his submission that the authority’s decision to bar the appellant was wrong in law. 

15.  Dealing first with the question of whether the authority attached excessive weight to the police report concerning the original charges against the appellant, we observe first of all that questions of the weight to be given to the evidence are matters for the authority.  Under paragraph 13 of Schedule 3 to the 2006 Act, the authority was bound to consider the relevance of the information it had received from the police about the original very serious charges.  Although the Treasury Solicitor’s letter of 26 January 2012 seems to have accepted that the information from the police about the original charges should not have been accorded ‘high’ weighting, the weighting system seems to us to be designed to evaluate the reliability of the source of evidence, rather than the credibility of the evidence itself.  However, at Stage 2 of the barring process the information received from the police was referred to as “unsubstantiated”.  The evaluation at Stage 4 is almost entirely concerned with the offences with which the appellant was ultimately charged, and we can find nothing to suggest that the authority failed to appreciate that the original charges were not proceeded with.  Accordingly, we do not consider that the authority acted unlawfully in the weight it gave to the police evidence.

16.  So far as the decision not to apply the SJP is concerned, section 2.5 of the authority’s August 2010 edition of their published ‘Guidance Notes for the Barring Decision Making Process’ excludes ‘auto-bar’ cases from the process, but paragraph 2.5.2 provides that in ‘auto-bar with reps’ cases the SJP is to be applied once representations have been received.  In her grant of permission, Judge Lane also referred to the unpublished guidance quoted in paragraph 17 of VT, requiring cases where a barring decision was considered appropriate but which did not meet the barring criteria, to be escalated to line management and then to the ISA Board.  Ms Davies submitted that the ISA’s published guidance was simply a statement of policy which the ISA was entitled, and indeed bound, to depart from in appropriate cases, in accordance with the well established principle that a public authority cannot fetter the way in which it exercises its discretionary powers - see, for example, R(Mullen) v Secretary of State for the Home Department [2005] 1 AC 1.  She submitted that the fundamental approach is that there must be a commitment that can be characterised as a promise such that to renege on the promise would be so unfair as to amount to an abuse of power.

17.  Although Ms. Davies is undoubtedly correct in submitting that a public authority cannot generally fetter the exercise of its discretionary powers, it may nevertheless act unlawfully if in doing so it acts contrary to the legitimate expectation of a person affected by the way in which the powers are exercised.  In Nadarajah Abdi v Secretary of State for the Home Department [2005] EWCA Civ 1363 Laws L.J identified the principle underlying the concept of legitimate expectation in procedural matters as follows:

“Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. In my judgment this is a legal standard which, although not found in terms in the European Convention on Human Rights, takes its place alongside such rights as fair trial, and no punishment without law. That being so there is every reason to articulate the limits of this requirement – to describe what may count as good reason to depart from it – as we have come to articulate the limits of other constitutional principles overtly found in the European Convention. Accordingly a public body's promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public body's legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances”

18.  In R (Bhatt Murphy & ors.), R(Niazi) v SSHD [2008] EWCA Civ 755  the same judge identified the paradigm case of procedural legitimate expectation as arising where “a public authority has provided an unequivocal assurance, whether by means of an express promise or an established practice, that it will give notice or embark upon consultation before it changes an existing substantive policy” [29].  He held [para. 42] that in such a case:

“…the court will (subject to the overriding public interest) insist on such a requirement, and enforce such an obligation [to consult], where the decision maker’s proposed action would otherwise be so unfair as to amount to an abuse of power, by reason of the way in which it has conducted itself.  In the paradigm case of procedural expectations it will generally be unfair and abusive for the decision-maker to break its express promise or established practice of notice or consultation.  In such a case the decision–maker’s right and duty to formulate and re-formulate policy for itself and by its chosen procedures is not affronted, for it must have concluded that that interest is consistent with its proffered promise or practice.  In other situations-the two kinds of legitimate expectation we are now considering-something no less concrete must be found.  The cases demonstrate as much.  What is fair or unfair is of course notoriously sensitive to factual nuance.  In applying the discipline of authority, therefore, it is well to bear in mind the observation of Sir Thomas Bingham MR as he then was in ex parte Unilever at 690F, that “the categories of unfairness are not closed, and precedent should act as a guide and not a cage.”

19.  In the paradigm case, a public authority may be found to have acted unfairly if a person liable to be affected by a change in an established policy or practice is not given an opportunity to make representations before the change is put into effect.  However, it is clear that the doctrine of legitimate expectation can be invoked in other cases where it would not be fair to allow a public authority to depart from  an established practice, even in a case where no duty to consult arises-see, for example, ex parte Unilever [1996] STC 681, where the Inland Revenue’s refusal to accept late claims for tax relief after twenty years of accepting such claims was regarded by the Court of Appeal as “so outrageously unfair that it cannot be allowed to stand.”

20.  We therefore agree with Mr Smale that a failure by the ISA to act in accordance with its own declared procedures may in some cases be unlawful.  Section 4 of the Safeguarding Vulnerable Groups Act 2006 affords no right of appeal against the decision to place a person on a barred list, so that in a case such as VT a failure by the authority to escalate to the ISA Board a decision to bar a person to whom the SJP has been applied but who does not meet the barring criteria may result in a person losing a possibly crucial safeguard provided for by the authority’s internal procedures.  In an ‘autobar with reps’ case the SJP is applied after representations have been received. Representations may be drafted with the provisions of the SJP specifically in mind, so that a departure from the SJP in making a barring decision on a basis not covered by the representations could result in substantial injustice. 

21.  Although in Nadarajah Laws LJ preferred to base the concept of legitimate expectation on the requirement for good and consistent administration rather than on the need for fairness, it is clear from Bhatt Murphy that there must nevertheless be unfairness sufficient to amount to an abuse of process for the concept of legitimate expectation to come into play.  Since barring decisions will often not only affect a person’s reputation but also their livelihood, it may be that the threshold of unfairness which has to be established in such cases in order to show the breach of a legitimate expectation is lower than in cases where less vital interests are at stake.  However, the provisions of the SJP form part of an administrative, rather than a judicial, decision making process, and the doctrine of legitimate expectation does not in our view confer the status of a legal procedural code on a document which has been developed to assist administrative decision makers in making barring decisions which are, to quote the ISA’s factsheet, “fair, rigorous, consistent, transparent and legitimate”.  Persons who may be affected by barring decisions are doubtless entitled to expect that the SJP will be applied conscientiously and fairly, but a decision by the authority not to apply a provision of the process will in our judgement only amount to an error of law if it results in unfairness in a legal sense.  In particular, we consider that the authority will not be held to have erred in law if they decide to omit a stage in their procedures which in a particular case adds no value to the decision making process.

22.  The purpose of the SJP is described in paragraph 6.2 of the August 2010 Guidance as follows:

“The SJP is used for consideration of complex individual cases that cannot reasonably be concluded at an earlier stage (or progressed otherwise:  see section 2.3) and is focussed on risk factors linked to future harm.  Case workers must note that some of the risk factors are not, without qualification or a combination with other factors or the relevant conduct itself; inherently harmful; it is the relevance of that  risk factor to the relevant conduct under consideration that will determine the whether the ISA bars an individual.  For example, an emotional congruence with children is not of itself necessarily a harmful attribute but if the evidence clearly demonstrated that an individual disclosed historical instances of sexual abuse to children over a period of time because they were more comfortable engaging on an emotional level with children, this would raise legitimate concerns regarding the risk of harm that the individual posed to children in future.”

The four broad areas of risk concern are: Harm related interests/intrinsic drives, Thinking, attitudes and beliefs, Relationships, and Self management and lifestyle.  Each broad risk area is divided into a number of more specific risk factors, and the assessment requires the case worker to indicate for each risk factor ‘no concerns’, some concerns’, definite concerns’ or ‘no information’. The SJP matrix document was completed in this case to the extent that ‘no information’ was entered against each of the specified risk factors, but it is clear from the case worker’s final case summary that no attempt was made to obtain the information needed to establish the psychological drivers for the appellant’s behaviour, or to attempt to establish those drivers from the information which was available

23.  We have come to the conclusion that Ms Davies is correct in submitting that no error of law resulted from the authority’s decision not to apply the SJP in this case.  The offences for which the appellant was in fact ultimately sentenced under section 1(1) of the Children and Young Persons Act 1993 are classified as serious offences under section 224 of the Criminal Justice Act 2003.  Although the discrepancies between the way in which the prosecution opened the case and the limited admissions forming the basis of the appellant’s guilty pleas were never fully resolved, the judge sentenced the appellant on the basis that his offences fell within the middle range of the relevant sentencing guidelines, for which the starting point is three years imprisonment, that is, a “series of assaults (the more serious the individual assaults and the longer the period over which they were perpetrated, the more serious the offence)”.  In Secretary of State for Children, Schools and families v BP [2009] EWHC 866 (Admin) Munby J. (as he then was) re-affirmed that the public interest is a relevant factor in barring decisions. The seriousness of these offences, in terms of the sentencing guidelines alone, was clearly a matter to be taken into account as affecting the public interest, irrespective of the psychological drivers for the appellant’s offending behaviour.

24.  In our view however the most compelling reason identified by the authority as making it unnecessary to apply the SJP in this case was the appellant’s consistent failure to recognise the seriousness of his conduct.   At the appellant’s trial, the prosecution described repeated incidents of the use of excessive force against two of the children.  The appellant accepted in his basis of plea that he had used excessive force against J so that her head had struck a wall and that on more than one occasion he had slapped J on the head with excessive force.  However, in the statement included in his representations to the ISA the appellant gave a version of events which was markedly different from what had been accepted at the trial.  At the trial it was accepted on the appellant’s behalf that he had pushed J onto a bed and that she had hit her head on a wall, but in his statement he said only that he had pushed J away and back into her room and closed the door.  The appellant also accepted at the trial that he had slapped J to the back of the head, but in his statement he said only that he had ‘smacked’ her.  The appellant’s statements concerning the assaults on his wife also gave a watered down version of what had been accepted at the trial, and in particular failed to mention the occasion when he put his hands to her throat and neck area.

25.  The OASys report which was subsequently supplied by the appellant himself stated that he did not recognise the impact and consequences of his behaviour on the victims and in his grounds of appeal the appellant has stated that his actions were those of a normal parent having to deal with difficult children.  Those latter documents were not of course before the authority at the time when the decision to retain him on the Children’s Barred List was made, but even the documents available to the decision maker at that time left no doubt that the appellant was essentially unwilling to accept his proper share of the blame for the serious offences of which he had been convicted.

26.  There will no doubt be many cases where the facts reported to the ISA do not by themselves enable the risks of harm to a vulnerable group to be properly established.  In such cases it will often be necessary to apply the SJP to establish the psychological drivers for a person’s behaviour.  However, we do not consider that this was one of those cases.  The appellant was convicted of serious offences involving actual violence against his wife and against children in his care.  The fact that the children came from troubled backgrounds made it more, not less, necessary that the children were properly cared for.  The evidence available to the authority at the time the decision was made to retain the appellant on the Children’s Barred List, confirmed by later evidence, was that the appellant failed to accept the seriousness of the behaviour which had resulted in his convictions.  Although the offending behaviour took place in a domestic context, and against a background of considerable stresses, the evidence therefore established that the appellant lacked the self-control and the insight into his own offending behaviour which was necessary to ensure that children with whom he was liable to come into contact, in possibly stressful situations, were not at risk of harm.    The reason why the SJP did not show up definite concerns in this case was that it was not in fact used except to the extent of entering ‘no information’ against each risk factor, but we agree that the evidence before the authority fully justified the barring decision without the need for the SJP to be applied.  Accordingly, there was no injustice to the appellant in the decision not to carry out Stage 3 of the Barring Decision Process and therefore no error of law arose for that reason.

27.  Accordingly, we turn to consider whether the ISA was mistaken in any finding of fact on which its decision was based.

28.  In his submissions on behalf of the appellant, Mr Smale stressed the very difficult challenges faced by the appellant resulting from the behaviour of his wife and the children and submitted that the authority had not taken those difficulties fully into account.  Mr Smale pointed out that both parents had chastised the children and he submitted that viewed objectively the allegations against the appellant concerning the children were not of the most serious kind.  The authority had failed to give sufficient weight to the witness character statements and their assessment was at odds with the fully reasoned assessment in the probation pre-sentence report, which assessed the risk of harm to children by the appellant as medium unless the appellant commenced a new relationship or had unsupervised contact with children.  Mr Smale eventually withdrew the assertion in the grounds of appeal that the appellant’s behaviour had been normal and stated that the appellant now accepted the part he had played in the offences of which he was convicted.   He submitted that the appellant should not be disadvantaged on the basis that he was minimising his own role in the offences by putting forward a version of events which differed from that of the complainants, and that the events in which he had been involved might in fact lessen the risk which he posed to children.  Mr Smale described the offences of which the appellant had been convicted as relatively minor, and stated that public confidence did not require the imposition on the appellant of a disproportionate sanction.

29.  In the recent case of Independent Safeguarding Authority v SB and Royal College of Nursing [2012] EWCA Civ 978 the Court of Appeal held that the Upper Tribunal cannot carry out its own fresh consideration of the evidence, but must give proper weight to the assessment of the ISA, taking into account the public interest.  Because the judgment of the Court of Appeal was given after the conclusion of oral argument in this case, we gave both parties an opportunity to make written submissions on the Court of Appeal’s decision.  The appellant did not however avail himself of that opportunity.

30.  The appellant was informed of his right to give evidence before us, but decided not to do so.  There has therefore been no challenge to the primary facts on which the authority’s decision was based and Mr Smale’s submissions on the facts have therefore centred almost exclusively on the weight given by the ISA to various aspects of the evidence.  As we have already reminded ourselves, the weight to be given to the evidence was a matter for the authority.  Although the Upper Tribunal has power to consider whether a decision is disproportionate, the Court of Appeal has held that in doing so it must give proper weight to the authority’s decision.

31.  We can find no basis for holding the barring decision in this case to be disproportionate.  It seems to us that the authority was fully entitled to give the weight that they did to each of the different factors in the case; in particular, the seriousness of the offences of which the appellant was convicted and his refusal, repeated in the grounds of his appeal, to acknowledge the full extent of his responsibility for those offences.  For the reasons we have given in considering whether the authority should have applied Stage 3 of the Barring Decision Process, we consider that those factors fully justified the decision by the authority to retain the appellant on the Children’s Barred List.

32.  Since we have found that the authority were not mistaken on any point of law or fact in making the decision to retain the appellant on the Children’s Barred List, we are bound by section 4 of the 2006 Act to confirm their decision.  We do so accordingly.

Signed on the
original by	                                  E A L BANO
	                                  Judge of the Upper Tribunal

and on behalf of	                                  Ms Linda Redford
                          	                                  Member of the Upper Tribunal

and	                                  Mr Raymond Winn
	                                  Member of the Upper Tribunal	

Dated	                                   9 November 2012