MC by forrests


									[2009] UKFTT 212 (HESC)

MC -vSecretary of State [2007] 1193.PT [2008] 1472.PT -BeforeMr. Simon Oliver (Deputy Principal Judge) Ms Bez Chatfield Ms Linda Redford Decision

Heard on 25 and 26 of June 2009 at The Care Standards Tribunal, 18 Pocock Street, London, SE1 0BW

Representation The Appellant was represented by Mr J Crosfill of counsel Ms K Olley of counsel represented the Respondent.

Appeal 1. This is an appeal by MC against the decision of the Secretary of State of 5th September 2007 to prohibit him from working with children in schools or further education establishments under section 144(1)(a) of the Education Act 2002 (“the Act”) and Regulation 12 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 (“the 2003 Education Regulations”). 2. MC appealed against his listing to this tribunal on 26th October 2007. A response was received from the Respondent in late 2007. There was a directions hearing on 22nd January 2008 when directions were given to set this case down for a preliminary hearing. That took place on 2nd April 2008 and the decision made by Mr Robertson dated 11th April 2008 is in our bundle.


3. On 13th June 2008, Mr Robertson gave directions time-tabling the case to a hearing in July 2008. That hearing did not take place and the proceedings were stayed so that MC could supply the Department for Children, Schools and Families with new information contained in his witness statement. This was to enable the Secretary of State to review the directions that had been made on 5th September baring him on the grounds of unsuitability to work with children. The Secretary of State considered the information and, in a letter dated 3rd December 2008, stated that he had decided that the direction should remain in force. MC appealed that decision to this tribunal on 27th February 2009. As a result of a directions order made by His Honour Judge Pearl on 25th March 2009 both appeals are to be heard together.

The Law 4. Section 142(1) of the Act provides that the Secretary of State may direct that a person may not carry out work to which section 142 applies if one of the grounds set out in subsection (4) applies: (a) On the grounds that the person is included in the list under section 1 of the Protection of Children Act 1999; (b) On the grounds that the person is unsuitable to work with children; (c) On grounds relating to the person’s misconduct; (d) On grounds relating to the person’s health; or (e) On grounds relating to the person’s professional incompetence. 5. In this case the Secretary of State decided that MC be barred from carrying out work on ground (b), unsuitability. Where a direction is given on grounds of unsuitability, section 35 of the Criminal Justice and Courts Service Act 2000 (“the 2000 Act”) becomes relevant. This section provides that it is an offence for a person “disqualified from working with children” to work in a “regulated position”. Section 35 (4) (b) of the 2000 Act defines a “disqualified person” as a person “subject to a direction under section 142 of the Education Act 2002 (prohibition from teaching etc), given on the grounds that he is unsuitable to work with children”. A regulated position is defined under section 36 of the 2000 Act in terms which include under section 36 (1) (c) “a position whose normal duties include caring for, training, supervising or being in sole charge of children.” 6. Section 144 of the Act and Regulation 12 of the 2003 Education Regulations provide a right of appeal against the making of a direction to the Care Standards Tribunal. When considering whether the direction is appropriate or not, Regulation 13 of the Education Regulations provides that the Tribunal shall not consider any information relevant to the decision to give a direction which the Secretary of State did not have at the time the decision was made, or any evidence of a material change of circumstances of the person concerned occurring since the decision was given. Furthermore, subsection (1) of Regulation 12 of the Education Regulations sets out the right to appeal against a direction. Subsection (2) prohibits an Appellant from basing his


appeal on evidence that has not previously been brought to the attention of the Secretary of State. 7. Regulation 9 provides for a review by the Secretary of State. Regulation 9 (1) states that a direction made under section 142 of the 2002 Act may be revoked or varied by a subsequent direction on the grounds that either the Secretary of State is in possession of information or evidence to the decision to give the earlier direction which he did not have at the time that decision was made or the Secretary of State is in possession of evidence of a material change of circumstances of the person concerned occurring since the earlier direction was given. There is, however, a caveat to that. Regulation 9(1)(b) states that there cannot be a revocation or variation of the earlier direction where the first direction was given on the grounds that a person is unsuitable to work with children and the person claims he is no longer unsuitable to work with children. In this case, MC was the subject of a direction on the grounds that he was unsuitable to work with children and so cannot rely on Regulation 9(1)(b) 8. The cumulative effects of the barring on the grounds of unsuitability under section 142(1)(b) and section 35 of the 2000 Act is that a barring order made on the grounds of unsuitability carries with it greater restrictions than an order made on other grounds. It also has the effect that is not open to an appellant to present evidence to the effect that whatever their circumstances were at the time of the decision, the present circumstances mean that the person is no longer unsuitable to work with children. If the tribunal upholds the order in the terms made by the Secretary of State the only recourse open to MC is for him to apply to the tribunal for a review of the order. By reason or Regulation 10 and 11(4)(a) such an application may only be brought 10 years after the original order was made. 9. Regulation 13(1) provides that where the tribunal is considering an appeal under Regulation 12 and it considers that the direction is not appropriate it may order the Secretary of State to revoke or vary the direction. This means that the tribunal must decide whether it was “appropriate” for the Secretary of State to have given the direction. This has been considered in a number of cases before the tribunal. In particular, in FH v Secretary of State for Education and Skills [2005] 0552.PT the tribunal said that the test to be applied was “…whether the Secretary of State had sufficient evidence upon which to base a determination that the specified ground relied up on existed and…whether the direction was an appropriate or proportionate response in all of the circumstances known to the Secretary of State.” 10. That decision of the tribunal was approved in the High Court in the case of The Secretary of State for Children, Schools and Families v JN [2008] EWHC 1199 (Admin). 11. Regulation 13(2) makes it clear that the information which was not before the Secretary of State at the time the decision was made is inadmissible before the tribunal and we are specifically prevented from considering any new material. The process for reviewing the new material is set out in Regulation 9

and this route has been pursued by MC. In Secretary of State for Children, Schools and Families v Philliskirk [2008] EWHC 2838 (Admin), Mr Justice Collins held at paragraph 19 that “…the tribunal… looks at the material that was before the Secretary of State and it decides, on that material, whether in its judgement the relevant prohibition of relevant sanction was or was not one which ought to have been, in its view, imposed…that judgment must be exercised upon and only upon the material that was before the Secretary of State…”

The Background 12. The appellant, MC, was born on 16th November 1972 and was a volunteer helper at WH Primary School. In this role, he was responsible for a number of activities including running a chess club, assisting with ICT in school and hearing children read. His services were terminated in May 2006 after a complaint that he had behaved inappropriately, in an over-familiar manner with an 11-year old girl. This behaviour included writing the girl a letter of an inappropriate nature, inviting her out and suggesting ways that they could get together, telling her that he loved her, taking photographs of her, sending her a “lonely hearts” style advertisement and giving her a certificate stating that she was the most wonderful person in the world. These incidents were investigated by the police but the appellant was not prosecuted as his behaviour did not meet the criteria for sexual grooming. He was referred to the Secretary of State by the Local Authority on 18th July 2006. 13. On 8th December 2006 the respondent wrote to the appellant informing him that the Secretary of State was considering whether to give a direction under section 142 of the 2002 Act and inviting representations in response. The appellant responded by letters dated 15th December 2006, 2nd January 2007 and 29th January 2007. In addition, representations were attached to the letter of 29th January 2007. We have seen those letters and representations. 14. At the request of the respondent, MC also attended an appointment with Dr Judith Earnshaw, Senior Clinical Therapist at the Lucy Faithful Foundation on 19th and 20th April 2007. Dr Earnshaw produced a report dated 26th April 2007.

Particulars of misconduct 15. The Secretary of State’s decision was set out in the decision letter of 5th September 2007 and was made following the recommendation of Cynthia Tighe and consideration via the independent panel chaired by Sir Roger Singleton. There were 6 particulars of conduct alleged. They are as follows:1) The appellant wrote to the girl saying she was his favourite person in the world and that he wanted to spend more time with her. He also stated that though she liked him too and that she was waiting for him to make the first move. He said that he would be happy to do this but was not allowed. He also made suggestions that they could go






shopping or bake a cake together providing that the girl was able to get permission from her parents. The appellant told the girl that he loved her, the girl noticed that the appellant had the word “September” written on his hand which was his computer password. When the girl asked MC why September was his computer password, he wrote on his hand “loved you since September” the appellant also allegedly told the girl “I think you are wonderful and I would like to know what you are like on the inside”. The appellant inappropriately gave the girl a certificate which he had composed and designed himself which said something like “This certifies that there is no one more wonderful in the whole world than…” The appellant gave the girl chocolate gifts. The appellant would give out chocolates to pupils at the end of term and the girl received more chocolates than other pupils. MC composed a “lonely hearts” style advertisement for himself and gave it to the girl. In the advertisement, he described the type of person he was looking to date. The person he described had many of the girl’s characteristics. The appellant kept photographs of the girl, which were found by the police, on his computer . They were close-up portrait shots.

16. The incidents were investigated by the police and when interviewed, MC admitted that he had informed the girl that he loved her, that he had become friends with her and that he had given her the password to his computer, accepted that the child had a crush on him, that he had behaved inappropriately and that he should not have attempted to relate to the child in a manner in which he did. In his representations submitted with the letter of 29th January 2007 MC claimed that the girl had developed an unusually strong and lengthy crush on him which he was unable to handle due to his illness. 17. It is important now to deal in some detail with the illness suffered by MC. Soon after graduating from university in 1994, MC began suffering with extreme fatigue. All of the test results were negative and so, by deduction, he was diagnosed with Chronic Fatigue Syndrome. He informed us that the symptoms have been so severe that he has not been able to plan a career path and has been unable to work full-time since then. In February 2008, he was diagnosed with a condition, Acromegaly. This has been caused by a one centimetre tumour growing on his pituitary gland. The condition causes the sufferer to produce too much growth hormone. Various symptoms develop slowly over the years including an increase in the size of the hands and feet. In his statement prepared for this appeal dated 17th August 2008 MC sets out a number of symptoms, many of which he has had. The condition is treated by an operation. MC had his operation in October 2008 and has already benefited. He says in this statement dated 13th May 2009 that there has been an immediate lessening of his disabling symptoms and can now anticipate a full recovery. 18. We heard evidence in this case from Elizabeth Brass and MC. We also read and took into consideration the report from Dr Earnshaw dated the 24 th of

April 2007. Ms Brass took us through the details of the allegations of the inappropriate behaviour. Ms Brass also discussed Dr Earnshaw’s report and her conclusions. Ms Brass explained to us that the concerns that had been raised by the police meant that the department needed an expert opinion which is why Dr Earnshaw was asked to undertake the report. She said that she thought this was not a “cut and dried” case because, although there were some elements of remorse and understanding shown in MC’s witness statement, he did not appear to be accepting responsibility and was still partly blaming the child. 19. Ms Brass accepted that there is no evidence that MC had a sexual interest in children and she agreed that just because MC had formed an inappropriate relationship with this child it did not mean (and there was no evidence to suggest) that there was a relationship with anyone else. She also accepted that MC had worked in the school for about 6 or 7 years before this behaviour occurred. In explaining to us why the decision was made to bar MC she said that if someone was unsuitable they had to be barred and there was not a possibility of being “a little bit” unsuitable. Whilst it was possible to impose conditions on someone who was found to be unsuitable the Secretary of State does not do that, taking the view that unsuitability should mean an outright bar. 20. Ms Brass also accepted that MC had acknowledged that his behaviour was inappropriate and, therefore, had insight and that as far as she was aware he had been honest throughout. In discussing why the decision had been made not to remove MC’s name from the list, Ms Brass explained that the department would have expected something clearer, more personalised than what had been received. She had expected something that conveyed more definitely that he appreciated that he had done wrong, would not do it again and appreciated the effect on the child. 21. In giving his evidence, MC explained to us the practical effects of his illness. He told us that he felt ashamed of what had occurred and that it was obvious to him what he had done was wrong from the first day and child’s reaction. He said that when he’d sent his information to the Secretary of State he felt that it would be obvious to a reasonable person that he knew what the effect of his behaviour would have been on the child. 22. He accepted that his behaviour was not only ill-advised but inappropriate and that sending and creating these documents was totally inappropriate, illjudged and the wrong thing to do. He accepted that anyone knowing about these things would become extremely worried and that as a matter of common sense what he did was inappropriate. 23. In addition to the witnesses giving evidence, as indicated above we had the benefit of reading the report from Dr Earnshaw. Her detailed report sets out not only MC’s attitude to the assessment, his accounts of the concerns that had been raised but also any relevant sexual and relationship history. Her risk assessment states, at paragraph 64, that MC “…accepts that he did form an inappropriate romantic attachment to the girl, that he wrote the letter and

advertisement, and that he behaved in an ill-advised way which may well have been alarming and harmful to her. He denies that he had any intention of engaging in any sexual activity whatever with her”. 24. In paragraph 66 of her report Dr Earnshaw said that it was her view that MC was so emotionally and sexually immature that he probably really had not formulated any plans to abuse the child. She continued that he “…does demonstrate some risk predictors including emotional congruence with children, emotional loneliness and difficulty in forming adult relationships.” Dr Earnshaw reported that MC is very ashamed of his behaviour and concerned about it. He appears very eager to learn from his mistakes she said. She stated at paragraph 67 that “until he has matured and shown that he has the capacity to develop adult friendships and partnerships that meet his emotional and sexual needs… [she]…cannot feel certain that he would not present some risk to children, even if this were only of further inappropriate attachments. She concluded in paragraph 68 that she believed that “…the safest course is for MC to be barred from work with children on grounds of unsuitability but this is a case that I believe should be reviewed with sympathy if he is able to meet the criteria described above.”

Findings and Conclusions 25. This appeal is somewhat unusual in that since MC accepts that his behaviour was entirely inappropriate the tribunal does not have to make findings as to whether the particulars relied upon by the Secretary of State are proved or not. The basis of the appeal is that the Secretary of State was wrong to bar MC on the grounds that he was “unsuitable”. Mr Crossfill submits to us that on an appeal the tribunal is not limited to simply revoking or upholding the order but has the power (by regulation 13 (1)) to vary the order. He submits that the tribunal has the power to make any order that the Secretary of State could have made and that could include the imposition of conditions. Mr Crossfill continues by saying that given Dr Earnshaw’s concluding comments as set out in paragraph 68 an outright life-long barring order may not be appropriate. He suggests that the tribunal has the power to either impose a condition (such as training or counselling or the satisfaction or a medical requirement); imposing a barring order of a limited duration or provide that MC could not take up prohibited employment without the permission of the department. 26. Miss Olley contends that the concern in this case relates to the clear inability of MC to maintain the necessary professional boundaries when working with children or young people. She says that MC did not put forward to the Secretary of State sufficient evidence to indicate that he had done what was necessary to try to meet Dr Earnshaw’s concerns and therefore it was entirely appropriate not to revoke the direction of 3rd December 2008. Miss Olley also stresses that regulation 13 cannot be read to provide the tribunal with the ability to make conditions nor does the Secretary of State (and thus the tribunal) have the power to make a time-limited order. She says regulation 11 specifies a 10 year time limit without variation.

27. In considering what to do we bear in mind that section 142(4) sets out the five grounds upon which the Secretary of State can direct someone not to carry out work. In reading them, we believe the only two that could be possibly appropriate for us to consider are (b) unsuitability and (c) misconduct. In relation to those points Miss Olley submitted to us that unsuitability should be given a wide definition. She says that there is no test that should be created on the hoof and that in considering misconduct she submits that it usually relates to acquisitive offences and is, therefore, addressing a different concern. 28. Mr Crossfill submits to us that a listing on grounds of unsuitability is a draconian measure with different consequences from any other of the five grounds in section 142(4). He says, for example, that MC was originally put on the Protection of Children Act list rather than simply barred under section 142. If that had been the case he would have had the ability, says Mr Crosfill, to apply for a revocation of the bar before ten years have elapsed. The same applies in relation to misconduct but not in relation to a person’s suitability. There is an absolute minimum of ten years before which any application can be made by a person barred on the basis of unsuitability. Indeed, Mr Crossfill also makes the point that had the section 142 listing been as a consequence of being placed on the Protection of Children Act list the main appeal would have been against the POCA listing and the tribunal would have been able to look at matters as at the date of the hearing rather than limit it to what was before the Secretary of State at the time the decision was made. 29. Mr Crossfill argues that to give full effect to the final sentence of Dr Earnshaw’s report it is necessary not to bar MC on grounds of unsuitability because in doing so the ability to review the case (whether with sympathy or not) is simply unavailable. 30. Before dealing with the submissions in detail, we should make it clear that we see some link between MC’s illness and the behaviour he has accepted. We believe that it did have some impact on his level of emotional maturity and his ability to cope with stress as well as his social isolation from his peers – all of which we see as relevant factors in the development of an inappropriate relationship with the girl. We understand that the illness must have been debilitating and that has affected him over a number of years. However, we do not believe that his illness itself caused him to act inappropriately but rather that one of the consequences of his illness was his lack of emotional maturity. Whilst it might not be the cause of his behaviour it is possible that his operation may mean that he is less likely to repeat that behaviour. 31. We fully appreciate and understand that “unsuitability” carries with it the prohibition from reviewing the case for ten years. We note that, in fact, the Secretary of State did consider MC’s application to vary the order even though the legislation would suggest it was not permissible. We are considering an appeal against the refusal to lift the bar, even if there was no legal basis on which to lift that barring order.


32. We have been unable to find any case or statutory provision that establishes the distinction between what is “misconduct” and what is “unsuitability”. Whilst Miss Olley submits that misconduct tends to be used for acquisitive offences it is fair to say that in the reported decisions of the tribunal are divided between barring for misconduct and unsuitability. In some cases professionals and teachers have been barred under section 142 for acts of misconduct where the facts would appear to be of a similar or more serious nature. For example, in the May 2009 edition of the Digest of Cases (Series Four, July 2008 – March 2009) there are two cases of relevance. Trevor Brazier v Secretary of State [2007] 1085.PT concerned a teacher who engaged in an inappropriate relationship with a 17 year old female boarder in a school. He was barred on grounds of misconduct. By contrast, in MG v Secretary of State [2007] 1170.PT the appellant (a volunteer) engaged in an intimate discussion with and hugged a 14 year old girl. He was barred on grounds of unsuitability. 33. The lack of guidance or definition as to the threshold between misconduct and unsuitability means that we need to apply common sense. In this case we believe that the only reason the Secretary of State placed MC on the section 142 list on grounds of unsuitability was because Dr Earnshaw used that word in the last paragraph of her report. We do not have in the papers we have read a copy of the letter of instruction from the Treasury Solicitors to Dr Earnshaw so we are unclear whether she was asked to address issues of unsuitability/misconduct or whether she was only directed towards unsuitability. Indeed it may be that she was given no guidance on what ground should be applied. 34. We are alert to the fact that in her report Dr Earnshaw envisages that there should be a review of MC’s barring if he is able to meet the criteria she has set out in her risk assessment. She says that there should be a sympathetic review of his being barred. This suggests to us that Dr Earnshaw was either unaware of the inability to review the case for ten years because of the unsuitability listing or that she had taken the view and come to the conclusion that whilst MC might be unsuitable, he may well be able to come off the list if he can show progress. 35. Whilst we do not disagree with Ms Brass that the totality of the evidence presented to the Secretary of State was sufficient to support a decision that a specified ground in section 142(4) existed, and we agree that the respondent was justified in issuing a direction, we are concerned that perhaps insufficient attention was paid to the nature of the listing. This became apparent during the course of the hearing where Ms Brass indicated to us that the officers acting on behalf on the Secretary of State would consider a review of a listing in an unsuitability case although that was contrary to the legislative framework. It may be, therefore, that the Secretary of State’s officials were unaware that the effect of listing for unsuitability rather than misconduct was very different. 36. If, as it appears, the Secretary of State believed a review was possible before ten years if there was an unsuitability listing there would be, on the face of it,

little or no distinction between unsuitability or misconduct. However, clearly Parliament in providing the two grounds and strengthening the listing on grounds of unsuitability by section 35 of the Criminal Justice and Courts Services Act 2000 believed that there needed to be a distinction between the two. It is, of course, unfortunate that this distinction is not made clear within the 2002 Education Act or any regulations or Guidance. Dr Earnshaw in her report may not have been aware that by using the word “unsuitability” she was using a technical word which had legal consequences. 37. In considering this matter, we do not for one moment think that MC should be removed from the list. We believe that he still has considerable work to undertake if he is to fulfil the conditions set out by Dr Earnshaw. We are fully aware that the provisions of sections 142 are designed to protect children and prevent inappropriate people working with them. 38. We bear in mind that an unsuitability listing means (by virtue of section 35 of the 2000 Act) that a person is not able to work anywhere with children whereas a misconduct listing is limited only to a school environment. 39. We note that in relation to MC’s role within the school we did not hear any evidence that there was any training session in child protection for volunteers working within the school environment, no induction training into appropriate ways of conducting oneself as an adult in a school context and that the school did not seem to worry about a volunteer having unsupervised contact with a child whether that person had been CRB checked or not. 40. We have no evidence before us that MC has yet dealt appropriately with matters identified by Dr Earnshaw. We believe that he still has a long way to go. We believe that he has relied to a large extent on his illness and whilst we are satisfied, as indicated above, that this was relevant to his behaviour to some extent it is not the whole reason for it. We believe that MC still needs to resolve matters at an emotional level and we note that Dr Earnshaw did see that there was the possibility for change in time. 41. In deciding what to do we have come to the conclusion that it would be inappropriate to impose conditions as urged on us by Mr Crossfill because in terms of unsuitability this would be meaningless. To apply conditions or restrictions that gave criteria for removal from the list would be raising false hopes because it is clear that an unsuitability listing means nothing can be done for ten years. We also accept that we are unable to impose a barring order of limited duration as urged upon us by Mr Crossfill but because once again the legislation prevents it. Likewise, we do not believe that we have the power to make a condition that MC be prevented from taking up employment without the permission of the department. 42. It seems to us the question we have to resolve is whether or not MC should have been placed on the list by reason of unsuitability or misconduct. We remind ourselves of the view expressed by Mr Justice Collins in SSCSF v Philliskirk where he said in paragraph 19 that the tribunal has to exercise its own independent judgement and that it looks at the material that was before

the Secretary of State and decides, on the material, whether in its judgment “the relevant prohibition or relevant sanction was or was not one which ought to have been in its view imposed…” 43. Bearing that in mind, we have already indicated above that we accept that MC should be placed on the list. We take into account the conclusions reached by Dr Earnshaw and the clear indication she gives that whilst MC is barred at present his case should be reviewed with sympathy were he to meet the criteria she has set out in her report. We believe that, in the circumstances, whilst the Secretary of State was right to bar MC it was wrong to bar him on grounds of unsuitability. We believe that had the Secretary of State been fully aware of the consequences of an unsuitability barring and the consequences of section 35 of the Criminal Justice and Courts Services Act 2000 he might not have come to the same decision. The fact that Ms Brass in giving her evidence was unaware that the review process was unavailable for an unsuitability listing only underlines to us the fact that hitherto the Secretary of State might have treated unsuitability and misconduct in the same way. That is clearly not what was intended or provided for. 44. In considering this appeal and evidence that the Secretary of State had before him, therefore, we have come to the conclusion that it is entirely appropriate for MC to be barred under section 142 but we would substitute a barring under section 142(4)(b) for a bar under section 142(4)(c). To put it into English we believe that MC should be barred on grounds of misconduct rather than unsuitability. We believe that had the Secretary of State been aware of the distinction between the two and had wished to put into effect the recommendations made by Dr Earnshaw he would have reached the conclusion that a misconduct listing would have been more appropriate in the circumstances. 45. We stress that it does not follow that in every case an individual should be listed on grounds of misconduct rather than unsuitability. The reason why it is appropriate here to make the distinction and change the listing is because it is clear from Dr Earnshaw’s report that MC has the ability to change and that he should have a sympathetic review if he was to meet the criteria described. There are many cases that come before the tribunal when a recommendation of that nature is not made and therefore in those circumstances it may be appropriate for a listing of unsuitability to be retained. As with every case before this tribunal, the outcome depends on the individual circumstances of a case. 46. We emphasise that by taking this course of action we are not saying that MC should work with children at the moment. Not only does he have to fulfil the conditions set out by Dr Earnshaw in her report but we believe that when the time comes (if ever) there will need to be consideration given to mentoring, observation and supervision. It can only be right that if the Secretary of State is asked to review his decision in the future he should be satisfied that Dr Earnshaw’s conditions have been met before any consideration is given to removal of MC’s name from the list.


Mr. Simon Oliver (Deputy Principal Judge) Ms Bez Chatfield Ms Linda Redford Date: 28th August 2009


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