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					                                                                [2008] UKFTT 3 (HESC)



                                             PH
                                             -v-
                              The Secretary of State for Health
                                     [2008] 1289.PVA
                                      [2008] 1920.PC


                                          Before:

                          Ms Maureen Roberts (nominated chairman)
                                   Mr. David Braybrook
                                   Ms Gillian MacGregor


   Heard on 22nd October 2008 at the Manchester Civil Justice Centre Greater
                                 Manchester .

The Appellant did not appear.
Mr Alex Ruck-Keene of Counsel appeared for the Respondent instructed by the
Treasury Solicitor Ms Naomi Kincey.
For the Respondent, we heard evidence from Mr Darren Bamforth a Network Support
Worker employed by Manchester City Council at the home , Ms Debra Campion the
acting Network manager at the time of the incidents and now Network manager for
the Central Manchester Support Team with responsibility for the home concerned.

Decision
1. The Appellant appeals against the two decisions of the Respondent contained in
   a letter to the Appellant dated the 19 February 2008 (the decision letter); firstly
   (the first appeal) to confirm him on the Protection of Vulnerable Adult's List (the
   PoVA List) and secondly (the second appeal) to confirm him on the Protection of
   Children Act List (the PoCA List).
2. The decision letter also notified the Appellant that the effect of inclusion on the
   PoCA list also meant that the Appellant would not be able to carry out work to
   which section 142 of the Education Act 2002 applies and that his name had been
   added to the Education Act List.
3. The tribunal makes a restricted reporting order under Regulation 18 of the
   Protection of Children and Vulnerable Adults and Care Standards Tribunal
   Regulations 2002 (the Regulations), restricting the reporting of the names of
   residents involved in the case and directing that reference to them shall be by
   their initials so as to protect their private lives. We further order that the decision
   be published in an anonymised form, under Regulation 27 to protect the private
   life of the Appellant.


The law



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4. The first appeal (the PoVA Appeal) is brought under section 86 (3) of the Care
   Standards Act 2000 (CSA 2000) which states;
   ” if on an appeal or determination 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
    duty) 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 or direct the individual's inclusion in the list.
5. The second appeal (the PoCA appeal) is brought under section 4 (3) of the
   Protection of Children Act 1999 (POCA 1999), which is in similar terms to the
   CSA 2000 section 86 (3) except that unsuitability to work with Vulnerable Adults
   is replaced under the terms of section 4 (3) of P0CA 1999 with unsuitability to
   work with children.
6. In this appeal the burden of proof rests on the Respondent. The standard of proof
   is the civil standard namely on the balance of probabilities. We noted the case of
   R (on the application of N) v Mental Health Review tribunal (Northern Region)
   [2006] 4 All ER 194 and were directed to the two recent cases decided by the
   House of Lords Re D [2008] UKHL 33, and Re B [2008] UKHL 35 where all the
   recent cases on the standard of proof were considered.


Facts
7. The Appellant was employed as a network support worker for Manchester City
   Council from 4th March 2002 until 31 August 2005. From the summer of 2004 until
   his dismissal in August 2005 he worked at a property in central Manchester with
   two male residents RP and MH, one of whom (RP) had autism and learning
   difficulties. RP was described as ‘very vulnerable, displays a number of complex
   behaviours and has particular communication needs.’ Double cover was always
   provided for RP.
8. On the 6th July 2005 the Appellant had come on duty at 12-00 noon and was to
   work through to the next morning. In the afternoon the Appellant, Mr Bamforth
   and RP had all gone to a local supermarket to do the weekly shop. When they got
   back the Appellant said that they could have pizza and put them in the combi
   micro wave to cook. While the food was cooking Mr Bamforth observed him
   ‘rolling a joint’ in the kitchen. The Appellant is alleged to have said ‘I have the odd
   one now and again, don’t worry I haven’t put any on the pizzas’. The Appellant lit
   the cigarette/joint and went outside to smoke it.
9. After tea the RP went into the garden and the Appellant encouraged RP to get on
   a ‘makeshift’ swing which he had made using a hammock and a decking tile
   fastened to a tree. RP got on to the swing and was told by the Appellant that if he
   did ten swings he would be ‘rewarded ‘ with a cup of tea. RP was fearful of
   swinging and the Appellant said that he had not done enough for a brew. RP
   stayed in the garden for some time. Mr Bamforth made a cup of tea for all of
   them. The Appellant hid RP’s cup of tea behind a clock in the sitting room and Mr
   Bamforth said that he devised a game to ensure that RP found the cup of tea.
10. The Appellant continued to tease RP by saying that if he didn’t drink the cup of
    tea he would lose it. A that point Mr Bamforth decided to take RP for a walk. On
    the walk they went into a pub and Mr Bamforth phoned his immediate superior


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    (Steve O’Connell) to talk through his concerns. He said that he was going to
    report the situation to Ruth Armstrong one of the managers the next day. Mr
    O’Connell said that this would be too late and Mr Bamforth agreed that Steve
    could phone Debbie Campion to tell her about the situation.
11. Ms Campion attended the property with a colleague (Janis Dolan) at about 9-
    30pm. The Appellant let them in and denied that he had been smoking cannabis.
    He said ‘that it was a private matter’. The Appellant was sent home and Ms
    Campion and her colleague conducted a search of the garden and house. They
    found one cigarette butt in a drain by the back door. This was submitted to the
    Customs and Excise Unit at Manchester Airport for analysis and a report from the
    unit concluded that the butt tested positive for cannabis.
12. The acting manager Ms Campion conducted interviews with members of staff on
    the 7 July 2005. She also had a meeting with the Appellant. She had requested to
    see him on the 7 July but at his request the meeting took place on the 8 July
    2005 to hear his side of events. He said at this point that he had been smoking a
    herbal cigarette. She interviewed Mr Bamforth and RP on the 15 July 2005.
13. There was a disciplinary hearing held on the 31 August 2005. The Appellant left
    the meeting half way through. The case of misconduct was found against him and
    he was dismissed from his employment for gross misconduct. There was an
    appeal to the Assistant Director of Adult Services on 9 November 2005 and a
    further appeal to the Employee Appeals Committee on 28 November 2005.The
    dismissal was upheld at these appeals. The matter than went to the Employment
    Appeal Tribunal but was resolved before a hearing took place. A referral was
    made to the PoVA list.
The evidence to the Tribunal
14. Mr Bamforth and Ms Campion gave us some background information about the
    home and the training programme for staff. The home was one of eleven homes
    in the Central Manchester area providing care for adults with differing mental
    health needs. There were two adult residents in the house RP and M. RP was on
    a 2:1 ratio. The witnesses gave us a description of RP as a man with autism and
    learning difficulties; he could make his needs known. He understood what was
    said to him. The Tribunal saw the very detailed description of his needs and
    routine.
15. Mr Bamforth gave evidence to the Tribunal about the construction of the swing,
    as noted above. He also had taken some photographs of the swing which
    showed its proximity to the tree on one side and the garage wall on the other. He
    described RP’s anxiety about being ion the swing in that his face was set, he was
    frowning and his hands were gripping the ropes. He was fearful of swinging on it.
    Mr Bamforth recalled that RP had taken six months of visits to a trampoling
    centre before he could be persuaded to get on the trampoline. He said that the
    Appellant had said to RP that ‘if you do ten swings you can have a cup of tea’ and
    then told him that he had not done enough and that ‘you can’t have a cup of tea’.
16. In his original statement Mr Bamforth said ‘ As the shift continued PH started to
    goad RP repeatedly making RP perform for a cup of tea, RP was being goaded,
    taunted and ridiculed as a means of entertainment. I was also concerned that
    pressure was being put on RP and this would lead to him not attending
    tomorrow’s activity. I found this totally disrespectful telling RP to swing on a
    swing PH had put up by the shed’.
17. Mr Bamforth was concerned that RP was showing signs of being upset and that
   a cup of tea that was used to motivate RP legitimately was being misused. RP


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    got off the swing and was left in the garden with nothing to do for between half to
    one hour. At that time RP had a sullen face and was rocking while he stood. Mr
    Bamforth then made everyone a cup of tea and said that the Appellant hid RP’s
    cup of tea. Mr Bamforth played a game of ‘hot and cold’ to enable RP to find his
    tea. Mr Bamforth said that he felt RP was being goaded to use the swing with the
    promise of a cup of tea.
18. With reference to the ‘joint’ Mr Bamforth said that it looked like a roll-up but that
    the Appellant had pulled out some ‘ brown fudge like’ stuff some of which he put
    in the roll-up and that he sealed it and twisted it. He said that the appellant had
    not used the word cannabis but had said ‘he liked the odd joint.’
19. Mr Bamforth said that the Appellant was not particularily a team player and that
    he pushed the boundaries. He did not show respect for the residents. He would
    cancel community activities for RP and had said that ’he didn’t do community’.
20. Mr Bamforth gave a description of the culture in the house at the time. All the staff
    who worked at the house smoked. Neither of the residents smoked. The
    employment policy stated that staff were not to smoke or drink on duty. A blind
    eye was turned to staff smoking and a culture of drinking on duty had arisen. Staff
    were not pulling their weight in that they were just getting through the shift and
    forgetting that the house was RP and M H’s home.
21. On the shift in question Mr Bamforth said the Appellant was the only member of
    staff who smoked rollups. Mr Bamforth said that he had no doubt that the
    Appellant was smoking cannabis on the 6 July 2005.
22. Ms Campion confirmed her role as the acting manager at the time. She said that
    she had been called at 9-30pm on the 6 July and told of the concerns that the
    Appellant was smoking cannabis. She attended the property with a colleague.
    She said that the Appellant had taken quite a while to answer the door and was
    reluctant to let her into the house. Ms Campion went into the sitting room with the
    Appellant and invited him to sit down. He did not do so and she said that she felt
    quite intimidated by him. He appeared agitated and angry. He denied that he had
    smoked cannabis and said that it was a ‘private thing’. Ms Campion sent him
    home and arranged for RP and Mr Bamforth to be brought back to the house.
23. Ms Campion described her search of the garden and that she only found one
    cigarette end in the area. This was in a drain next to the back door and that this
    was the one sent for analysis.
24. She also interviewed RP. Ms Campion went through each member of staff and
    asked him ‘What about PH’ he replied ‘He’s not very nice, he shouts at me when
    I’m messing about ’He tells me to top messing about’ Mess about, you’ll miss
    out. Mess about with your tea and I’ll throw it in the bin’ About the swing he said ‘I
    don’t like it’ and that when PH shouts that ‘hurts him’
25. Ms Campion said that she had had to speak to the Appellant on two previous
    occasions. Once was to ask him not to come to the house when he was not on
    duty. The other time was after a training course when there had been a complaint
    that the Appellant was abrupt negative and rude. She said that it had been a
    verbal warning. She said that on these occasions the Appellant was ’in your face’
    angry but not physically aggressive.
The Appellant
  26. The Appellant is a man in his forties. He had been employed by Manchester
      City Council as a carer since 2002. The Tribunal and a full report of all previous
      appeals and the statement prepared for the final appeal by a solicitor for the


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       Appellant. In the absence of the Appellant we took this as his main evidence.
       He denied smoking cannabis on duty and complained that one member of staff
       had lied about the events of the 6 July 2005. In his appeal to the tribunal he
       said, ’ Malicious gossip and one person’s lies got me dismissed due to my
       attitude towards management’.
  27. He disputed that he urged RP on to the swing or that he had promised him a
      cup of tea if he did use the swing.
  Findings
28. The Appellant has always denied the allegations. However we find on the
    balance of probability that he did smoke a ‘joint’ on the 6 July 2005 and that he
    urged the service user RP to get on the swing when RP was reluctant and
    agitated about it. We find Mr Bamforth and Ms Campion’s evidence convincing
    and truthful.
29. We accept that the Appellant was guilty of misconduct which harmed or placed at
    risk of harm a vulnerable adult. We take this view bearing in mind that the
    consumption of cannabis is illegal and was expressly forbidden by the
    employment policies. We also accept that it may affect a carer’s behaviour while
    on duty. Further we consider that RP was put at risk of emotional distress by the
    incident involving the swing.
30. The issue that we have to address is one of ‘suitability’. In case of Mairs the
    Tribunal stated that ‘Unsuitability must be judged by the Tribunal at the date of
    the hearing. The judgement will involve consideration of the character disposition
    capacity and ability of the individual concerned including his or her ability to act
    properly in potentially difficult or frustrating circumstances. The judgement will
    inevitably be, at least in part, by way of deduction from past performance,
    including (but not limited to) the nature and extent of the misconduct, admitted or
    proved in the course of the proceedings, which harmed or placed at risk of harm
    a child.’ In this case the reference is to a vulnerable adult. The Tribunal went on
    the say that the Tribunal may have regard to: the number of the incidents
    constituting the misconduct, the gravity of the misconduct, the time that has
    elapsed since the misconduct, the timing and degree of recognition by the
    applicant that the conduct constituted misconduct and that it had the potential to
    harm a child (in this case vulnerable adult), the steps taken by the applicant to
    minimise the possibility of there being a recurrence of that or like misconduct and
    extenuating circumstances surrounding the misconduct.
31. From the Appellant’s submissions’ to previous disciplinary and appeal hearings
    he does not show an awareness of the inappropriateness of his actions or his
    behaviour. The teasing and goading of the service user was totally inappropriate
    and disrespectful. His smoking of cannabis was in clear contravention of the law
    and his employment policy and could have impaired his judgement while working
    with vulnerable persons. The Appellant has shown no awareness of the potential
    consequences of what he did. In the light of these findings we find that the
    Appellant is unsuitable to work with vulnerable adults or children.
32. The appeals are dismissed.
33. The decision of the Tribunal is unanimous.
34. The decision was announced at the end of the hearing. When the hearing was
    over the tribunal received a message that the Appellant had attended the court
    building but been unable to find the court room where the hearing was taking
    place and had gone home.



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                              [2008] UKFTT 3 (HESC)



APPEALS DISMISSED




Ms Maureen Roberts
Mr David Braybrook
Ms Gillian MacGregor
12 November 2008




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