IN THE UPPER TRIBUNAL				Case No.  HC/1136/2011
ADMINISTRATIVE APPEALS CHAMBER

Before: UPPER TRIBUNAL JUDGE WARD 

Attendances:

For the Appellant:		Ms Katherine Olley of Counsel, instructed by Treasury Solicitor

For the Respondent	:	Mr Christopher Jacobs of Counsel, instructed by Howells LLP/Hull CLAC

DECISION:

The appeal succeeds on a technical level but not in the result.  Although the decision of a judge of the First-tier Tribunal in matter [2010] 1855.PVA, given on 14 March 2011, was in error of law and is set aside, I re-make the decision to the same effect.

Accordingly, the respondent has leave to appeal to the First-tier Tribunal against the refusal of the Secretary of State to remove her name from the Protection of Vulnerable Adults list under section 81(3) of the Care Standards Act 2000.

REASONS FOR DECISION

History

1. The respondent was employed as a care worker by HICA Care Homes Ltd (“HICA”) in Hull.  On 16 November 2004 she lowered a resident into a bath filled with water which was too hot and which scalded the resident.  The injury sustained left the resident with reduced mobility thereafter.  The respondent acknowledges that she failed to check the temperature of the water prior to putting the resident in it and that this was a mistake.  The cold water tap was not working and the respondent had used jugs of cold water from elsewhere to add to the water from the hot tap.  The hot tap was unregulated and the resultant bath water was very hot.  The respondent was dismissed from her employment for this incident.  HICA was subsequently fined for health and safety breaches relating to the taps.  No criminal or civil proceedings were taken against the respondent in relation to this incident. 

2. The respondent was provisionally listed on the POVA and POCA lists on 4 April 2005.  Her listing was confirmed on 19 September 2005 sent by recorded delivery to the correct address.  The letter was not returned.  The deadline for appealing against that decision expired on 19 December 2005, but no application was made.  

3. The respondent wrote to the appellant on 23 May 2006 stating that she “still did not know” whether she was on the lists.  The appellant responded on 1 June 2006, enclosing a copy of the letter dated 19 September 2005 and advising the respondent that if she wished to appeal she should contact the Care Standards Tribunal and explain her reasons for missing the appeal deadline.  No application was made.  

4. On 26 February 2007 the respondent contacted the appellant again to enquire whether her name would ever be confirmed on the POVA and POCA list.  The appellant responded on 1 March 2007 enclosing copies of the previous correspondence and again advising the respondent that should she wish to appeal against a decision to confirm her on the lists she should contact the Care Standards Tribunal and explain the reasons for missing the appeal deadline.  She was also provided with the address and contact details for the tribunal.  

5. The respondent states that in June 2007 she sought help from the Hull CAB who drafted a letter on her behalf requesting removal from the list.  She states that she did not receive a reply to that letter.  

6. On 23 February 2009 the respondent sought help from her present representatives.  They took the matter up in the first instance with the Independent Safeguarding Authority, which has largely taken over responsibility for such issues from the appellant under the Safeguarding Vulnerable Groups Act 2006 (the “2006 Act”).  

7. It was however the appellant who replied on 3 June 2010, explaining that owing to an “administrative oversight” the respondent’s case had been overlooked, so she had not as yet been migrated to the lists maintained under the 2006 Act.  The letter indicated that the respondent’s representatives’ letter of 2 March 2009 could be treated as an application for a review of the respondent’s inclusion in the POVA list pursuant to section 81(3) of the Care Standards Act 2000 (the “2000 Act”) and invited the respondent to submit any further information within a month.  This the respondent did, subsequently sending two supportive references.  

8. On 19 August 2010 the appellant replied turning down the request to remove on the grounds that “no new evidence” had been provided to conclude that the respondent should not have been included in the list and advising her that she had the right to appeal to a tribunal under section 86 of the Care Standards Act 2000.  The respondent subsequently did so.  There was initially some confusion as to which procedure she was appealing under but it is now not in dispute that she was appealing under section 86 of the 2000 Act against a decision of the Secretary of State to refuse to remove her name from the list under section 81(3) and that such an application required the leave of the tribunal.  By a decision dated 14 March 2011 Judge Hillier gave permission to appeal.  In doing so, she applied a different test to that which had been applied previously by the Care Standards Tribunal to the materially identical provisions in relation to the Protection of Children Act 1999.  The Secretary of State sought permission to appeal to the Upper Tribunal in order to establish the correct approach to the giving of permission in such categories of case.  

9. Although there was clearly a realistically arguable point of law, I initially hesitated to give permission to appeal.  As noted above, cases such as this increasingly fall to be dealt with under the 2006 Act.  However, there were at the time of the decision whether or not to give permission a number of cases (probably several hundred), of which this is one, in which the statutory provisions for “migration” from the 2000 Act to the 2006 Act had not been fully implemented.  Though the public interest in relation to the respondent would have been adequately protected if I had refused permission, I took the view that the correct operation of the test was likely to arise in a number of other cases, albeit not a large number, and to refuse leave would be to create unhelpful legal uncertainty in an already highly complex area.

Listing

10. Section 82 of the 2000 Act required a person who provides care for vulnerable adults to refer a care worker to the Secretary of State if any of a number of conditions is fulfilled, which was the case here.  The Secretary of State was required to consider material received from the provider and the worker and by section 82(6) was required to confirm the worker’s inclusion on the list if subsection (7) applied or otherwise to remove him from the list.  

11. By section 82(7):
	“This subsection applies if the Secretary of State is of the opinion –
		(a)	that the provider reasonably considered the worker to be guilty of misconduct … which harmed or placed at risk of harm a vulnerable adult; and
		(b)	that the worker is unsuitable to work with vulnerable adults.”
It can be seen from this that the issues for the Secretary of State at this stage were whether the employer reasonably considered the worker to be guilty of misconduct of the relevant kind (not whether he actually was) but the question of suitability fell to be determined by the Secretary of State.  
Appeal against inclusion in the list
12. Such a right of appeal was conferred by section 86(1)(a) of the 2000 Act.  Such an appeal had to be brought within three months after written notice of the decision was sent:  see (now) the Tribunal Procedure (First‑tier Tribunal) (Health Education and Social Care Chamber) Rules 2008/2699, rules 19(2)(b), 20(1)(a) and Schedule.  
Removal for change in individual’s circumstances
13. Sections 87 and 88 of the 2000 Act permit a person to apply to the tribunal, with the leave of the tribunal, for his or her name to be removed from the list.  It is necessary to wait 10 years (or, if a child when listed, 5 years) before applying.  The tribunal may only grant an application for leave if it considers that the individual’s circumstances have changed since he was included in the list or last made an application and that the change is such that leave should be granted (section 88(5)).  
Removal because individuals should not have been included in the list
14. Under section 81(3):
	“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.”
Right of appeal against decision not to remove under section 81(3)
15. Section 86(1)(b) confers a right of appeal against “with the leave of the Tribunal, any decision of the Secretary of State not to remove him from the list under section 81(3).”  
Appeals: common provisions
16. By section 86(3):
	“If on an appeal … under this section the Tribunal is not satisfied of either of 	the following, namely –
		(a)that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed 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 … and … direct his removal from the list; otherwise it shall dismiss the appeal …”
This provision is common both to appeals against the initial decision to list (under section 86(1)(a))  and to appeals against a decision not to remove from the list (under section 86(1)(b)).  In looking at an appeal under section 86(3) a tribunal will be concerned both to look at the past (was the individual guilty of misconduct?) and the situation at the time of the hearing (is the individual unsuitable to work with vulnerable adults?)  Further, a tribunal is concerned with whether the individual was actually guilty of the relevant misconduct:  this contrasts with the concerns of the Secretary of State when a person is first listed which, as noted above, are with whether the employer reasonably concluded that the individual was guilty of misconduct.  
Section 86(1)(b): the basis for granting leave
17. The difficulty for a tribunal is that the 2000 Act does not in terms indicate on what basis the leave required in order to challenge a decision under section 81(3) should be given or withheld.  There is an immediate tension between the decision under section 81 against which an appeal lies and the statutory basis for deciding such an appeal.  This is because section 81(3), in its choice of tense (“should not have been included in it”) in my judgment focuses clearly on the correctness of the Secretary of State’s original decision.  One of the limbs of what he had to decide concerned the reasonableness or otherwise at that time of the employer’s conclusion with regard to misconduct.  The other limb concerned the Secretary of State’s conclusion at that time with regard to suitability.  
18. These contrast with what has to be decided on the appeal, which is prescribed by section 86(3).  As to one limb, the question is not even the same one (actual misconduct versus reasonable view); as to the other, the circumstances with regard to suitability may have changed over a possibly substantial period of time.
19. Because section 86(3) prescribes the factors to be taken into account on an appeal and the consequences, it follows that the appeal itself is not the place where one can examine the issue raised by the decision under section 81(3) appealed against i.e. whether the individual should have been included in the first place.  I would therefore tend to the view that the only place where this can be done is in the context of the decision whether or not to give leave for the purposes of section 86(1)(b).  This is consistent with the right to appeal against section 81(3) decision being of a different, narrower nature to the right to appeal against the decision to list an individual under section 82(6) in the first place.  The latter must be exercised within three months, unless time is extended.  The former imposes a different gateway, not founded on the passage of time, before the listing can be challenged before the tribunal, namely that of demonstrating to the tribunal that the person should not have been included in the list.  Once it has been shown that the original listing was flawed in this way, it then makes sense for the tribunal hearing the resulting appeal to be concerned with the section 86(3) criteria, just as it would be on an initial appeal against listing.
20. Such an approach to the leave gateway under section 86(1)(b) is also wholly consistent with the very tightly defined regime under sections 87 and 88 providing for review of a person’s listing only where there has been a change in their individual circumstances and only after a prolonged period of time.  
21. There was discussion at the oral hearing about what place, if any, there might be for new evidence in an application for leave under section 86(1)(b).  Ms Olley modified her position in the course of argument and was prepared to accept that there might be cases where new evidence should be considered.  In my view that may be right, provided always that it is directed to examining the correctness of the original decision.  The tribunal would not be restricted to considering only the material which had been before the Secretary of State if, for instance, by subsequent evidence that material could be shown to have been unreliable.  Examples given in argument included where there had been mistaken identity, or where the conclusions of a manager were subsequently proved to have been tainted by prejudice or discrimination.  
22. There does not appear to be any authority at High Court or Upper Tribunal level.  The point has however previously been considered by the Care Standards Tribunal (as it then was).  His Honour Judge Pearl, then President of the Care Standards Tribunal, had occasion to consider the same issue when it arose under the materially identical provisions of sections 1 and  4 of the Protection of Children Act 1999 in two cases, PD v Secretary of State [2006] 651.PC and [2006] 652.PVA and Soper v Secretary of State [2007] 1194.PC [2005] 1195.PVA.  In the latter he observed:-
	“	8.‘… Mr Coppell [Counsel for the Secretary of State] …submits that the task for the Tribunal at leave stage upon a section 1(3) application is to consider whether the [individual] has demonstrated that the Secretary of State should not have included the [individual] on the list.  In other words, in the case of a referral after a dismissal, that the Secretary of State should not have reached the opinion that (a) 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 (b) that the individual is unsuitable to work with children.
		9. He posits five reasons for this test:
•	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 [individual] 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 10 years of listing (e.g. 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 10 years and that in making an application for removal under section 4A care has to be taken as failure means a further 10 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 (i.e. based on the material that the Secretary of State had) a right of appeal separate from the right of appeal against the listing itself.
		10.	I agree with Mr Coppell, and I reiterate here what I said in PD v Secretary of State 2006 651.PC:
			‘16.  The legislative framework is clear.  There is a right of appeal as of right in the case of section 4(1)(a) (the decision to include the [individual’s] name on the list).  This right must be exercised within three months, although there is a power under Regulation 35 to allow an appeal out of time …  If the right of appeal is not exercised, the [individual] must wait for ten years (or five years if a child at the time of the listing) to apply to the Tribunal for a determination by the Tribunal as to whether or not his name should continue to be included on the list (ss 4A,4B).  However, he can apply at any time to the Secretary of State for his name to be removed on the basis that ‘he should not have been included in it’ (s 1(3)).  On such an application, if the Secretary of State does not remove his name, he can appeal to the Tribunal under section 4(1)(b).  Leave is required, before the matter can go any further.
			17. The only sensible interpretation I can give to this legislative framework is that when considering leave in an application under section 4(1)(b), the President or nominated Chairman must consider more than simply whether ‘there is an arguable case’ or ‘whether there would be a realistic chance of success under section 4(3)’.  If Ms  Sleeman [Counsel for the individual] is right in her approach, there will be nothing to stop [an individual] from making numerous applications under s 1(3) followed by s 4(1)(b) appeals as and when circumstances changed on ‘suitability’.  Such an approach would make nonsense of the ‘three-month in which to appeal’ time limitation from confirmation on the list, followed by a ten year period (or a five year period in the case of a child) on the list before the Tribunal could consider suitability as at that future date.  
			18. Having decided therefore that leave applications engaged ss 2(6)-(7), it is necessary to look at the material that was before the Secretary of State.  I cannot accept Ms Sleeman’s approach that material that was not considered by the Secretary of State is relevant.’
23. It follows that, with the possible exception of the limited relevance of new evidence (which was the subject of concession before me) the approach I have outlined above is very substantially consistent with that adopted by  Judge Pearl.  
24. Mr Jacobs, for the respondent, criticises the decision in Soper on a number of grounds.  He says that the effect of that decision is to make the test to be applied on an application for leave the same as the test for the substantive appeal.  However, that is not so.  As indicated above, the test on initial listing and on appeal are different and, on  Judge Pearl’s view, it is the former that would be examined at the leave stage and the latter at any appeal.  Mr Jacobs then submits that “the requirement for the substantive issue to be considered at the leave stage places too heavy a burden on an applicant.  The substantive issue is more properly to be considered at the substantive hearing after a grant of leave.”  I disagree that at the leave stage the tribunal is concerned with “the substantive issue”.  Given the limited nature of the question arising on a leave application as understood by Judge Pearl, it is far more likely that the leave proceedings will be directed to a criticism of the Secretary of State’s initial decision taking process.  Even if there is limited scope for arguing that additional evidence may also be relevant, it is evidence that is likely to be directed to demonstrating a specific flaw in the Secretary of State’s reasoning.  It will not be directed to whether the employee was in fact guilty of misconduct nor to the individual’s suitability or otherwise at a later date.  
25. Mr Jacobs also adopts the argument of Judge Hillier in the decision under appeal that the legislation did permit an application or many applications to be made within the 10 year period and gave no guidance as to matters to be considered on an application for leave.  However, per Judge Hillier and Mr Jacobs,  it was not for the tribunal to interpret the legislation on the basis of a perceived unintentional effect and the refusal of leave would provide an obvious curb on over‑frequent applications for leave.  
26. I agree that there is nothing conceptually to stop multiple appeals against refusals to remove under section 81(3), however unlikely these may be thought to be on a true understanding of the scope of section 81(3).  I do not regard that as an unintentional effect of the legislation:  rather, it is the closely circumscribed possibility of such an appeal which provides a logical reason for it to be carved out both from the normal time limits for appealing and from the 5/10 year review rule.  
27. Judge Hillier’s argument, once again adopted by Mr Jacobs, is that a “fair and just” test for whether to give or withhold leave would provide an adequate safeguard against multiple applications.  It might:  but none is needed, since the basis for giving or withholding leave is to be derived from the 2000 Act for the reasons given earlier in this decision.  However superficially appealing a decision based on what is “fair and just” may be, it would be wrong to adopt it when the legislature has provided otherwise.  
28. Mr Jacobs further draws attention to the existence of costs provisions as being a deterrent to over‑frequent applications.  However, the risk of frequent applications is but a small part of the reasoning in Judge Pearl’s decision and in my own.  More important to my decision is the undermining of a deliberately crafted regime with time limits but above all the conclusion to which careful consideration of sections 81(3), 82(6) and(7) and 86(1) and (3) leads.  For the sake of completeness, I should however record that I do not consider that the cost provisions would have a deterrent effect given the limited scope for awarding costs under rule 10 of the First‑tier Tribunal’s rules and the difficulty of enforcing a cost award, even if one could get one, against an individual who may have been working in a typically rather low paid sector and who may as a result of the difficulties in which they find themselves be out of work.
29. Mr Jacobs then submits that the “fair and just” test is consistent with the overriding objective of the procedure rules of the tribunal to deal with cases fairly and justly.  By rule 2(3) the overriding objective applies “when exercising any power under these Rules” and “when interpreting any rule or practice direction”.  It seems to me something of a moot point whether considering an application for leave under section 86(1)(b), to which rule 19 of the First‑tier Tribunal’s Rules applies, does fall within the scope of rule 2(3) at all but even if it does, it would be an astonishing result if application of the overriding objective could overrule a statutory regime requiring a different test.  
30. I have dealt with the majority of points advanced by Judge Hillier in her decision as part of considering Mr Jacobs’s submission.  Judge Hillier decided to grant leave for a variety of further reasons – because the respondent had not made frequent applications, had co-operated with the Secretary of State insofar as the provision of additional evidence is concerned, could demonstrate that prima facie her employer had some responsibility for the events which occurred and had made a timely appeal against a background of delay.  While I accept that all of those could be material to a decision whether to grant leave on the basis of whether it was fair and just to do so, they do not provide a reason for concluding that that is the test in the first place.  One consequence of Judge Hillier’s decision, it seems to me, is that it totally assimilates the right of appeal against a decision under section 81(3) with that against a decision under section 82(6).  I do not think it is permissible to fail to give effect to the differing terms of these provisions within the 2000 Act.
31. It follows that I find myself in respectful disagreement with Judge Hillier. I am satisfied that her decision was in error of law set it aside.  In consequence, I either need to remit the matter for a decision on leave or re-make it myself.  As I have noted, the first question for the Secretary of State was whether the provider reasonably considered that the individual was guilty of misconduct which harmed or placed at risk of harm a vulnerable adult.  The respondent says, and it is not in dispute, that her employers also were blameworthy.  That much is indeed evident from the convictions on health and safety charges.  Whether those convictions had occurred at the time of the respondent’s listing I do not know, but I rather doubt.  She refers in a letter dated 2007 to “recent” convictions.  But Ms Olley submits, and I agree, that even if they do fall to be taken into account, that cannot help the respondent.  Failure to check the temperature of water before lowering an elderly resident into it, particularly when one knew that the taps were not working properly so that water had to be “jugged in”, was on any view capable of reasonably being considered misconduct by the employer and it did sadly harm a vulnerable adult.  
32. There was however a second limb which the Secretary of State had to consider, namely whether at the time of the decision to list the respondent was unsuitable to work with vulnerable adults.  I am aware that as late as January 2011 the Secretary of State disclosed to the respondent – it is said, incompletely - the material relied upon at the original decision.  The respondent’s case is that in essence after facing family difficulties in her teenage years she was able to establish a significant work record in the care sector and elsewhere and was so far as she is aware well thought of.  She had shown genuine remorse.  What was not clear was how this was said to flaw the original decision of the Secretary of State that she was unsuitable to work with vulnerable adults.  The arguments thus far on behalf of the respondent had been directed to defending the test adopted by Judge Hillier in order to grant permission.  Accordingly, I considered  it right to give the respondent’s representative an opportunity to file a short written submission as to the respects, if any, in which the Secretary of State’s original decision, as regards suitability, can be said to have been flawed; and the Secretary of State the opportunity to respond.  
33. The submission made on behalf of the respondent invited me to find that the Secretary of State, having found that the provider reasonably considered the respondent to be guilty of misconduct, nevertheless erred in holding that she is (“was” must have been intended)  unsuitable to work with vulnerable adults and went on to list the factors mentioned above and others.
34. The response on behalf of the Secretary of State said (emphasis in original):
	“it is of the utmost importance to note that the Secretary of State did not hold 	that she was unsuitable to work with vulnerable adults. This is the very nub of 	the issue.  The Secretary of State considered that her employer reasonably 	considered her to be unsuitable (a far less intense standard of review than 	that applied by the Tribunal).  The point is that the Tribunal itself makes 	findings on the issue of unsuitability, at the appeal and at the date of that 	appeal.”

35. The point was repeated later, where it was submitted:
	“that in this case the Secretary of State was not wrong to consider that [the 	respondent’s] employer reasonably considered her to be unsuitable to work 	with vulnerable adults.”
36. I am afraid that in so doing, the Secretary of State was asking himself the wrong question.  The structure of section 82(7) is in my view quite clear.  What the provider reasonably considered is the relevant test for whether the worker was guilty of misconduct under sub-section (a).  Whether the worker is unsuitable to work with vulnerable adults under sub-section (b) is a matter on which the Secretary of State was required to form his own view.
37. The Secretary of State therefore erred in law.  The respondent ought not to have been included in the list based on the Secretary of State applying a test other than that required by section 82(7)(b).  At any rate in a case such as this where it is not possible to say that the error would have made no difference, that suffices to entitle the First-tier Tribunal to give leave to appeal under section 86(1)(b) and the Upper Tribunal where it is substituting a decision (as I consider it appropriate to do) to do likewise.  The matter must thus proceed to a substantive hearing before the First-tier Tribunal under section 86(3) which will (among other matters) look at whether or not the respondent is currently unsuitable to work with vulnerable adults.
38. Counsel for the Secretary of State emphasises that in the normal run of cases  where suitability was in issue there would be an appeal against the initial listing to (now) the First-tier Tribunal, which would look at the matter  in far greater depth than the Secretary of State would initially be in a position to do and would do so down to the date of the hearing of the appeal.  I accept that that would be the normal course  and is one which did not happen in this case.
39. Counsel goes on to submit that:
	“It would be a fairly extreme or stark case in which the Secretary of State was 	wrong to include an individual and that that conclusion could be drawn outside 	of the statutory appeal route.  A Tribunal (at First-tier level) may well disagree 	that each of the twin limbs of section 86(3) (or one of them) is made out, but 	that would be a decision for the Tribunal on all the evidence, if an appeal is 	brought, and not one which can in the alternative be made by another body 	considering the matter in circumstances where the right to appeal was not 	exercised.”
Clearly it is not for the First-tier Tribunal exercising its gatekeeper role under section 86(1)(b) to duplicate the exercise which a tribunal would undertake on an appeal under section 86(3), for reasons I have already stated.  It may indeed be a “fairly extreme or stark case” in which the distinct threshold contemplated by section 81(3) may be found to be met (and so leave granted under section 86(1)(b)), but in my 

view a case where the Secretary of State has applied the wrong statutory test, abdicating from the duty to form a view himself in favour of merely assessing the reasonableness of a view held by another, is such a case.

C G Ward
Judge of the Upper Tribunal 
    23 February 2012.