Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No. V/1215/2011

ADMINISTRATIVE APPEALS CHAMBER

 

Before: His Honour Judge David Pearl sitting as a Judge of the Upper Tribunal

 

Mr Michael Flynn

Mr Peter Sarll

 (both specialist members of the Upper Tribunal)

 

A.    Having considered the Decision of the Respondent, the Upper Tribunal has reached the view that the Respondent has made a mistake on a point of law, in that the decision was disproportionate.

B.    As the decision is flawed by an error of law, the Upper Tribunal directs the Respondent to remove the name of the Appellant from the Adults’ Barred List.

C.    The Upper Tribunal further DIRECTS that there is to be no publication of any matter likely to lead members of the public directly or indirectly to identify any person, including the Appellant, who has been involved in the circumstances giving rise to this appeal.

 

 

Introduction

 

1.     By Form UT10 signed on 28^th April 2011, the Appellant sought permission to appeal under s 4 of the Safeguarding Vulnerable Groups Act 2006 the decision taken by the Respondent (the Independent Safeguarding Authority) by letter dated 10^th February 2011 to include his name on the Adults’ Barred List.

2.     Permission to appeal was refused on the papers by Judge Levenson in a decision dated 17^th May 2011. By letter dated 8^th June 2011, Thompsons Solicitors acting on behalf of the Appellant sought a renewal of the permission application at an oral hearing. The Chairman of the Panel heard the renewal application on 13^th July 2011, when the Appellant was represented by Mr Broach of Counsel. Mr Broach sought permission to appeal on two grounds, namely (i) ISA had made a material mistake of fact in reaching its decision to confirm the Appellant on the Adults’ Barred List, and (ii) the decision to confirm him on the list was disproportionate and thereby a breach of article 8 EConvHR. Permission was granted on both grounds in a Decision dated 13^th July 2011.

3.     Directions were issued on that date, and, in particular, a Case Management Hearing to be conducted by telephone was directed. There was a direction that the names of the Appellant, his wife, his children and any child involved in the relevant incidents should not be included in any report of the hearing, and the matter be anonymised to PH.

4.     The Case Management Hearing was held by telephone on 30^th August 2011, with Mr S Broach of Counsel representing the Appellant, and Ms G Haack of Treasury Solicitors representing the Respondent. Directions were made at that time and were communicated in writing to the parties on 31^st August 2011. The hearing was set for 17^th and 18^th October 2011.

5.     On the 17^th October 2011, both parties, through their Counsel (Ms Leventhal for the Respondent, and Mr Broach for the Appellant) sought the Tribunal’s permission to vacate the hearing in order to allow time for the Respondent to reconsider its decision to place the name of the Appellant on the Adults’ Barred List.

6.     The parties wished the appeal hearing to be stayed pending an examination by the Respondent of two new pieces of evidence, namely a Medical Report from the a Consultant Psychiatrist (Dr I Medley) dated 3^rd October 2011, and secondly, documentation from Nottinghamshire Police dated 12^th October 2011 concerning the disputed factual allegation which is the subject of Ground 1 of the appeal.

7.     After hearing submissions, the Tribunal acceded to a Consent Order to vacate the hearing, and to stay the proceedings for a short period of time in order to enable the Respondent to review its decision. In the Tribunal’s Order dated 18^th October 2011, the Tribunal said as follows (paragraph 13):

“What the Respondent is doing is reviewing its decision, rather than making a new decision. Thus, on the hypothesis that after the review, it forms the view that the Appellant should not be removed from the list, there is no new decision, and the decision which is the subject of the appeal is the original decision. However, the letter to the Appellant should provide new reasons addressing the additional material, and the Appellant should be granted permission to submit revised or additional grounds of appeal.”

8.     The appeal was accordingly stayed under Rule 5(3)(j) until 19^th December 2011. It was directed that the Respondent shall send to the Appellant’s legal representatives its review findings by 11^th November 2011, and permission was granted to the Appellant, if so advised, to submit revised additional grounds of appeal no later than 21^st November 2011.

9.     By letter dated 11^th November 2011, the Director of Operations of the Respondent (Ms A Hunter) wrote to the Legal Representatives of the Appellant as follows:

“The ISA has reviewed its decision of 10 February 2011 to place PH on the Adults’ Barred List. The ISA has taken into account the additional information provided by PH and decided to retain PH’s name on the Adults’ Barred List as we believe that should he be allowed to work with vulnerable adults in regulated activity he presents a risk of harm to them.”

10. A copy of the Review Findings was attached. It is clear from these Findings that the challenge to the initial decision to place PH on the Adults’ List is now confined to an error of law, because ISA has “retracted the finding of fact” that PH kicked a female pupil.

11. The hearing fixed for 19^th December 2011 was adjourned on the Appellant’s application as result of his hospitalisation at that time. The hearing took place on 8^th March 2012, when Mr S Broach of Counsel represented the Appellant, and the Ms Z Leventhal of Counsel represented the Respondent. We heard live evidence from the Appellant and from Mr N. Harding.

12. It was agreed by both Counsel at the commencement of the hearing that the decision under consideration is the original decision, although it was necessary for us to consider the reasons which have been provided by the Respondent in its Review Findings.

 

Factual Background.

 

13. The factual background in this case is not now in dispute. We quote from the Amended Grounds of Appeal dated 17^th November 2011 submitted in response to the Review, permission to amend the grounds being granted on 17^th October 2011. This reads as follows:

“The Appellant (date of birth 24^th October 1959) is a former teacher with substantial experience, including 17 years experience at his most recent school, teaching secondary age pupils and specialising in physics and mathematics. The Appellant is married with two daughters of secondary school age, one of whom has a diagnosis of Asperger syndrome. His wife has a history of significant mental illness. The Appellant was convicted at Nottingham Crown Court on 24^th May 2010 of grievous bodily harm in respect of an assault on a 14 year old pupil which took place on 8^th July 2009. He was sentenced to a two year community service order, having spent 8 months in prison on remand prior to sentencing.”

14. The background to the incident of 8^th July 2009 is described in some detail in the sentencing remarks of His Honour Judge M. Stokes, the Recorder of Nottingham. He said as follows:

“The incident involving the 14 year old boy whom you assaulted was brought about, I have no doubt, by a number of factors combining together and producing in you a quite disproportionate reaction to misbehaviour, abuse and rank disobedience by him and some of his classmates. In previous years you would have handled this easily and professionally. But in July of last year you were far from well. You were undoubtedly suffering from depression, stress and a serious lack of confidence. Your personal life added to those pressures, your wife suffering from long-term depressive illness and one of your children having difficulties of her own. I have no doubt that the sudden explosion of anger that preceded your assault on this boy could not have been predicted by anyone. Not by the school authorities, not by your pupils, not by you although you were perhaps better placed than others to understand that all was not well with you. You had taken several months off because you had felt capable of such actions, which itself shows a professional and responsible action on your part. You received medical and professional help and considered yourself fit to return to work. Very sensibly, the school ensured your return was phased and on the very day of this incident an assessment was to be made of you by your Head of Department. On the Jury’s verdicts when you assaulted this boy...you did not intend to cause him serious harm, but serious harm was caused to him which you have always accepted was your responsibility.”

 

The Listing on the Adults’ Barred List.

 

15. The Appellant was placed on both the Children’s Barred List and the Adults’ Barred List on 10^th February 2010. He has not sought to appeal his name appearing on the Children’s Barred List.

16. The Respondent, in the document entitled “Structured Judgement Process: Stage 4 – Representations” under the heading ‘stage 3 Review’ gives the following reason for deciding that the risk of harm to vulnerable adults is such that he should be placed on the Adults’ Barred List. It states:

 “it would not be unreasonable to surmise that vulnerable adults, particularly those with learning difficulties or mental health issues, could exhibit similar challenging behavioural traits in certain situations. Because of this there are real concerns that [PH] might react in a similar manner as he did at […School], if he was placed in a difficult position with vulnerable adults. While there is no evidence to indicate that he has worked in a paid or voluntary capacity with vulnerable adults in the past, he might in the future, and his risk is such at the present time that he would pose a risk of harm if he was allowed to do so. [PH’s] harmful behaviour clearly constitutes risk of harm and a minded to bar decision is proportionate on the Adults’ Barred List”.

17. The ISA Caseworker on 12^th January 2011 recommended that he be barred on the Adults’ List and that a specialist referral was not considered appropriate. Accordingly the ISA Caseworker made the Decision to Bar under ‘Stage 5 – Appropriate to bar?’ The text states:

“There is no evidence to indicate that PH has worked in a paid or voluntary capacity with vulnerable adults in the past. However, consideration needs to be given whether it would be appropriate for him to work in regulated activity within a vulnerable adults setting in the future. It is important to consider if PH was to obtain employment with vulnerable adults with learning difficulties or mental health issues, they could exhibit similar challenging behavioural traits as children in certain situations. There is a potential, significant risk that if he was placed a similarly difficult situation in a vulnerable setting that he could react in a similar manner with potential fatal consequences (sic). Therefore it is deemed appropriate to include PH’s name on the Adults’ Barred List.”

18. Interestingly, the Caseworker did not specifically address the issue of proportionality. The public document entitled ‘Guidance Notes for the barring Decision Making Process’ published in August 2010 (version 3.4) refers at 8.6.1 under the heading of proportionality as follows:

“Case workers will sometimes have a very difficult judgement to make as to whether the nature and level of future risk identified justifies a bar from working in the entirety of the workforce concerned. You must remember the principle that a decision to bar is a protective measure, not a sanction.” 

19. There is no further discussion in that Document of proportionality.

20. The Caseworker uses the word “proportionate” when filling in Stage 4, and the word “appropriate” when filling in Stage 5.  It may be that these words were thought by the Caseworker to be interchangeable.  They are not interchangeable, and indeed the Case Worker Guidance (version 3.01, April 2011) at 5.13 makes that clear. That document states:

“Caseworkers need to consider the case in its entirety reflecting on all of the evidence including representations, the findings of fact that have been established and the final levels of risk indicated by the Structured Judgement process. Additionally wider factors should also be (re)considered in relation to whether a bar is both appropriate and proportionate to the risk posed by an individual”.

21. That passage refers to Appendix 5 which is headed “Appropriateness and Proportionality.” This Appendix states that the ‘appropriateness test’ is based on the requirement to ensure children and vulnerable adults are safeguarded and that it is not tarnished by any desire to act as a sanction or punishment. It then considers wider factors, namely proportionality and public confidence. The second of these wider considerations is not relevant in the present case. So far as the first matter is concerned, however, the Appendix states:

“You must realise that the powers the ISA have are a blunt instrument. A decision to include a person on a list means that they will be barred from the entirety of the workforce affected….The question of proportionality will, therefore, focus on the nature and level of future risk that is identified in the SJP, not on the original conduct.”

 

The Safeguarding Vulnerable Groups Act 2006.

 

22. The relevant provisions of Schedule 3 read as follows:

9 (1) This paragraph applies to a person if–

(a) it appears to ISA that the person has (at any time) engaged in relevant conduct, and

(b) ISA proposes to include him in the adults' barred list.

(2) ISA must give the person the opportunity to make representations as to why he should not be included in the adults' barred list.

(3) ISA must include the person in the adults' barred list if–

(a) it is satisfied that the person has engaged in relevant conduct, and

(b) it appears to ISA that it is appropriate to include the person in the list.

10 (1) For the purposes of paragraph 9 relevant conduct is–

(a) conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult;

(b) conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him;

(c) conduct involving sexual material relating to children (including possession of such material);

(d) conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to IBB that the conduct is inappropriate;

(e) conduct of a sexual nature involving a vulnerable adult, if it appears to IBB that the conduct is inappropriate.

(2) A person´s conduct endangers a vulnerable adult if he–

(a) harms a vulnerable adult,

(b) causes a vulnerable adult to be harmed,

(c) puts a vulnerable adult at risk of harm,

(d) attempts to harm a vulnerable adult, or

(e) incites another to harm a vulnerable adult.

11 (1) This paragraph applies to a person if–

(a) it appears to ISA that the person falls within sub-paragraph (4), and

(b) ISA proposes to include him in the adults' barred list.

(2) ISA must give the person the opportunity to make representations as to why he should not be included in the adults' barred list.

(3) ISA must include the person in the adults' barred list if–

(a) it is satisfied that the person falls within sub-paragraph (4), and

(b) it appears to ISA that it is appropriate to include the person in the list.

(4) A person falls within this sub-paragraph if he may–

(a) harm a vulnerable adult,

(b) cause a vulnerable adult to be harmed,

(c) put a vulnerable adult at risk of harm,

(d) attempt to harm a vulnerable adult, or

(e) incite another to harm a vulnerable adult.

23. An individual who is included in a Barred list may appeal, with permission of the Upper Tribunal, to the Upper Tribunal. However, the nature of the right of appeal is circumscribed by section 4 of the 2006 Act. This section states:

 

4(2) An appeal under subsection (1) may be made only on the ground that ISA has made a mistake –

(a) on any point of law;

(b) in any finding of fact which is has made on which the decision mentioned in that subsection was based.

4(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.

 

 

The case law.

 

24. These sections, and in particular s 4(3), were considered by Wyn Williams J in R (on the application of Royal College of Nursing and others) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin).

25. The important paragraphs of his judgement are paragraphs [103] and [104]. The Judge said:  

[103] In light of the fact that the Upper Tribunal can put right any errors of law and any material errors of fact and, further, can do so at an oral hearing if that is necessary for the fair and just disposition of the appeal I have reached the conclusion that the absence of a right to an oral hearing before the Interested Party and the absence of a full merits based appeal to the Upper Tribunal does not infringe Article 6 EHCR. To repeat, an oral hearing before the Interested Party is permissible under the statutory scheme and there is no reason to suppose that in an appropriate case the Interested Party would not hold such a hearing as Ms Hunter asserts would be the case. I do not accept that this possibility is illusory as suggested on behalf of the Claimants. Indeed, a failure or refusal to conduct an oral hearing in circumstances which would allow of an argument that the failure or refusal was unreasonable or irrational would itself raise the prospect of an appeal to the Upper Tribunal on a point of law. Further, any other error of law and relevant errors of fact made by the Interested Party can be put right on an appeal which, itself, may be conducted by way of oral hearing in an appropriate case.

 

[104] I am more troubled by the absence of a full merits based appeal but I am persuaded that its absence does not render the scheme as a whole in breach of Article 6 for the following reasons. First, the Interested Party is a body which is independent of the executive agencies which will have referred individuals for inclusion/possible inclusion upon the barred lists. It is an expert body consisting of a board of individuals appointed under regulations governing public appointments and a team of highly-trained case workers. Paragraph 1(2)(b) of Schedule 1 to the 2006 Act specifies that the chairman and members "must appear to the Secretary of State to have knowledge or experience of any aspect of child protection or the protection of vulnerable adults." The Interested Party is in the best position to make a reasoned judgment as to when it is appropriate to include an individual's name on a barred list or remove an individual from the barred list. In the absence of an error of law or fact it is difficult to envisage a situation in which an appeal against the judgment of the Interested Party would have any realistic prospect of success. Second, if the Interested Party reached a decision that it was appropriate for an individual to be included in a barred list or appropriate to refuse to remove an individual from a barred list yet that conclusion was unreasonable or irrational that would constitute an error of law. I do not read section 4(3) of the Act as precluding a challenge to the ultimate decision on grounds that a decision to include an individual upon a barred list or to refuse to remove him from a list was unreasonable or irrational or, as Mr. Grodzinski submits, disproportionate. In my judgment all that section 4(3) precludes is an appeal against the ultimate decision when that decision is not flawed by any error of law or fact.

25.  This case was considered by the Upper Tribunal in SB v ISA [2011] UKUT 404 (AAC). The Chairman of the current panel chaired that hearing.  Counsel for the ISA in that case had submitted to the Tribunal that s 4(3) prevents the Tribunal from considering issues relating to the weight that ISA attached to individual issues. Counsel for the ISA had submitted that the amount of weight the Respondent attached to a particular issue is not for the Tribunal to re-determine, and that when one particular issue is one of many factors, this goes to appropriateness expressly excluded by s 4(3). The Tribunal in SB were not able to agree with that submission and said the following:

40. We are not able to agree with this submission. We are mindful that we must read section 4(3) in a way that is compatible with the Human Rights Act 1998, and the approach adopted by Wyn Williams J, in our view, is the correct way to proceed. If a decision taken by ISA to place a person on a list, or not to remove him from the list, is disproportionate to the facts as presented to the Respondent, then there is an error of law, and the Tribunal on appeal is entitled, indeed obliged, to direct ISA to remove the person from the list, or remit the matter to ISA for a new decision.

41. The only way in which a Tribunal can form a view as to whether a decision of the Respondent is disproportionate is to engage in “a weighing of evidence exercise”, not so as to ascertain whether the decision is or is not appropriate (that is a matter solely for the Respondent) but so as to ascertain whether it is disproportionate and therefore outwith the lawful decision making exercise of the Respondent. It is therefore the totality of the evidence that the Tribunal must concern itself with. In considering the totality of the evidence, it is in our view necessary to look carefully at individual aspects to that evidence and to form a view whether the conclusion that the Respondent has placed on the totality of the evidence is disproportionate.

42. We gain support for this analysis from a consideration of the case law dealing with disclosure of information in enhanced Criminal Records Certificates provided under s 115(7) of the Police Act 1997. The issue arose in R(X) v Chief Constable of West Midlands Police [2005] 1 WLR 65, where Lord Woolfe said: “It is possible that there could be cases where the information should not be included in a certificate because it is disproportionate to do so.”

43. The Chief Constable has the responsibility to decide whether it is relevant to include so-called ‘soft material’, but such disclosure is subject to judicial scrutiny by way of judicial review. Lord Woolfe provides examples of information which should not be disclosed, such as information of a trifling nature. It seems to us that whether such information is of a trifling nature is a question that goes to weight, and the court is entitled to take a view different to the Chief Constable. The Chief Constable might think the information is highly relevant, but it is open to the Court to form a different view and to decide that disclosure of that material is disproportionate to the need to disclose; which is of course to alert potential employers to perceived risks.

44. The Supreme Court considered the issue in R(L) v Metropolitan Police Commissioner [2009] UKSC 3. The Supreme Court upheld the right of the Police to disclose information in an enhanced CRC about allegations that had not been tested in a court, and held that such disclosure was compatible with art 8 EConHR. The key test must always be proportionality, and the Supreme Court decided that on the facts of the case before it, the Police had addressed their minds to the proportionality question. Indeed the Police had withheld certain information which they thought was insufficiently robust to justify disclosure, but that the other information which was the subject of the challenge was relevant to the reason for the disclosure; namely the risk to children. Lord Hope set out the test in following way at  [para 42]: “So the issue is essentially one of proportionality. On the one hand there is pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the applicant’s right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place”.

45. We believe that exactly the same test should be applied when considering the SVGA regime. On an appeal, the Tribunal is entitled to examine the evidence and to allocate weight to it and to decide whether the balance has been struck in the right place.

26. Ms Leventhal informed us that the decision in SB v ISA is the subject of an appeal to the Court of Appeal, and that the hearing has been set for a date in May 2012. We were informed that the ISA will seek to argue that the Upper Tribunal erred in its approach to the question of proportionality.

27.  ISA’s position in this case is as set out in paragraphs 10-12 of the Amended Skeleton argument, as follows: 

(10) the ISA’s submission is that, by virtue of section 4(2) SVGA, the Upper Tribunal is considering whether there is an error of law in its decision, not undertaking a full re-hearing of whether or not it is appropriate (including proportionality) for PH to be included on the Adults’ Barred List. Section 4(3) SVGA makes it clear that this question is for the ISA in the first instance and should not be interfered with absent an error of law.

(11) as to whether or not there is an error of law, the Upper Tribunal should accord significant weight to the expert judgment reached by the ISA and ought not to interfere with the ISA’s detailed balancing exercise…unless it can objectively conclude that its ultimate conclusion is necessarily disproportionate. This is not, and cannot as a matter of law, be the same as the Upper Tribunal considering whether or not it would have reached the same view on the evidence.

(12) It is plain from the ultimate decision of the ISA in the circumstances of this case that its judgement on proportionality does not constitute an error of law, particularly when one considers the painstaking assessment of the evidence in this case and the careful way in which the balancing exercise was undertaken. Given the level and nature of the risk (serious physical harm) which the ISA properly concluded exists to vulnerable adults, the limitation on PH’s right to pursue his employment when weighed against this plainly cannot be objectively considered as disproportionate.

28. In her closing submissions, Ms Leventhal reiterated the proposition that the Tribunal should give the decision of the ISA ‘significant weight’. She submitted that that is what the statutory scheme under section 4(3) envisages, that ISA has undertaken a detailed balancing exercise and that it has applied the correct legal approach.

29. In contrast, Mr Broach submitted that the approach to proportionality adopted by the Tribunal in SB is correct. It is submitted by Mr Broach in his Amended Grounds that

“proportionality requires that the means used to impair the right in question are ‘no more than necessary’ and that a ‘fair balance’ is struck between the interests of the individual and the wider interest, in this case protecting vulnerable adults from unsuitable individuals. By virtue of Human Rights Act section 6 the question of whether the decision to place the Appellant on the Adults Barred List was proportionate is one for the Court to decide, weighing all relevant factors into account.”

30. Given that the legal arguments surrounding the approach that should be adopted in these cases was argued before us, both in the written skeleton arguments and in oral submissions, it is only correct for the Tribunal to set out its approach in this case to the legal issue, notwithstanding that the matter will be considered by the Court of Appeal in the near future.

31. It is our view that the approach that should be adopted to the principle of proportionality is as set out both in the authorities cited in the extract from SB v ISA quoted earlier in this Decision and in the three leading authorities, namely Huang v SSHD [2007] UKHL 11; Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19, and Regina (Quila and another) v SSHD [2011] 3 WLR 836.

32. Only if in some way the legislative framework established under the Safeguarding Vulnerable Groups Act 2006 (in particular s 4(3) of that Act) demands that these cases be distinguished can it be said that Mr Broach’s submission is incorrect and that we should depart from the approach advanced in SB and adopt Ms Leventhal’s submission. We say this because all of the authorities set out the law on proportionality very clearly and leave no room for doubt.

33. In Huang v SSHD [2007] UKHL 11, Lord Bingham specifically referred to the need to balance the interests of society with those of interests and groups. Lord Bingham quoted R (Razgar) v SSHD [2004] 2 AC 368 where the House said that the judgement on proportionality

“must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage.”

34. Mr Broach drew our attention to observation by Lord Bingham at para 15 that

“in any event, particularly where the applicant has not been interviewed, the authority [referring to the Immigration Appellate Authority; the predecessor to the Immigration Tribunals] will be much better placed to investigate the facts, test the evidence, assess the sincerity of the applicant’s evidence and the genuineness of his or her concerns…”

35. It is our opinion that this observation is particularly pertinent in this area, given that the ISA has not had the opportunity of hearing PH give evidence, whereas this Tribunal (with two experienced specialist members) has been able to hear PH give evidence and test his evidence in some detail.

36. In Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19, Baroness Hale asked the question: who decides whether or not a claimant’s Convention rights have been infringed? She answered the question by stating that it is the court before which the issue is raised.

37. At para [31] Baroness Hale said:

“In human rights adjudication, the court is concerned with whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision-maker properly took them into account.”

38. Baroness Hale then goes on to discuss the weight to be accorded to the views of the various public authorities involved in making the decision which is alleged to have infringed Convention rights.

39. Lord Mance expressly observed that the existence of a discretionary area of judgment means that there may be decisions which a court could regard as proportionate, whichever way they went, but that the decision maker may be forced to strike the balance for itself if the decision maker  has not addressed his or her mind at all to the existence of values or interests which are relevant under the Convention.

40. Regina (Qila and another) v SSHD [2011] 3 WLR 836 is also of considerable importance. Baroness Hale said: “…this court will treat with appropriate respect the views taken by those whose primary responsibility it is to make the judgments in question. But those views cannot be decisive. Ultimately, it is for the court to decide whether or not the Convention rights have been breached”.

41.  Mr Broach in his Skeleton Argument makes four points. First, that the Upper Tribunal in SB directed itself correctly as to the proper approach to proportionality. Secondly, the conclusion as to whether or not ISA’s decision is proportionate can only properly be reached by the Tribunal after it has conducted its own balancing exercise, weighing all the evidence as it deems appropriate. Thirdly, it is not for the Tribunal to reach its own view on the merits, but rather to ask the four questions identified by Lord Bingham in Huang: (i) is the legislative objective sufficiently important to justify limiting a fundamental right? (ii) are the measures which have been designed to meet it rationally connected to it? (iii) are they no more than necessary to accomplish it? (iv) do they strike a fair balance between the rights of the individual and the interests of the community?

42. The fourth submission by Mr Broach is that the Tribunal, on the facts, will be invited to find that there is no evidence of any significant risk to vulnerable adults posed by the Appellant, and that the limitation on the Appellant’s rights encompassed within the barring decision is disproportionate when viewed against any risk that the Tribunal concludes he does pose.

43. We have to say that we agree with Mr Broach. We can answer each of the first three questions posed by Lord Bingham in the affirmative, and state that it is the fourth of Lord Bingham’s questions which is of importance in this case.

44. We can find no basis for agreeing with the submission by Ms Leventhal that the cases, all of which with the exception of course of SB being binding on us, are all to be distinguished because of the existence of s 4(3). It is our view that s 4(3) is concerned with the issues relating to any particular factual framework to the original conduct, whereas proportionality, as the Appendix 5 to the caseworker Guidance correctly states, focuses on the nature and level of future risk. Put another way, given the facts of a particular case, is it appropriate to place this particular person on the Barred List? “Appropriateness” is a judgement call, and is not subject to any right of appeal. “Proportionality” is a question of law, and is subject to a challenge based  on an error of law.

 

The evidence of Dr Medley.

45. We turn now to consider the evidence of Dr Medley whose medical report is dated 3^rd October 2011. Dr Medley is a Consultant Psychiatrist in adult mental health at the Highbury Hospital, Nottingham. He interviewed PH at the Priory Clinic on 20^th September 2011, and he has had access to the Nottingham Health Care psychiatric reports of the Nottinghamshire Health care Trust, in particular Dr Taylor, and the GP records. This is Dr Medley’s second Report, the earlier Report being dated 10^th November 2010.

46. Dr Medley’s conclusion is as follows:

“I remain of the view that the overall diagnosis with PH is of recurrent depressive disorder and, as a result of depression, and considerable work stress, there was an index offence in 2009 in which he assaulted a pupil in his class. Subsequently, he has been followed up by the community forensic services. His presentation now is very different. There is no evidence of depression. Indeed this seems to have lifted over the last year. He has worked on his thoughts and feelings and behaviour around the time of the index offence, in psychotherapy. The incident itself remains out of character; there is no history of any previous aggression or violence and none subsequently. No particular abnormal thought processes were revealed during the course of his therapy or follow up with the community psychiatric nurse. In terms of future risk, now that he has retired as a teacher, it is highly unlikely that he would be in a situation where the same factors would operate. He has considerable insight, not only in handling stress but also into how to avoid being in a similar situation in the future. It is difficult therefore to see how he could pose a risk to adults, certainly in the kind of charitable work that he is interested in. I therefore see no reason for him to be barred from working with vulnerable adults, although some basic safeguards would seem prudent, which he himself recognises. Firstly, he is aware that he should not work again with children. Secondly, I would suggest a basic risk assessment of any post that he is interested in. This might for example identify if he were likely to be subject to any particular degree of threat or provocation. Thirdly, he recognises that he would not work alone. Fourthly, he has become aware of the need to identify if his mental state is in any way changing, in particular becoming depressed. Now that he is away from the particular sensitive and stressful area of teaching, although he may still suffer depressed mood, he is unlikely to become stressed by the situation again. Lastly, he should remain in contact with his GP and, for the moment, the community forensic services.”

47. The Review by the ISA dated 11^th November 2011, signed by the ISA Caseworker, and endorsed by Ms A Hunter, the Director of Operations, deals with Dr Medley’s Report in the following way. It notes that since the incident, PH has taken significant steps to address his long-term issues with depression, through psychiatric support, psychotherapy and GP support which has included a change of medication. The Review by ISA states that whilst acknowledging the significant progress that PH has made, it is “also important to highlight the relatively short period of time which has elapsed since this marked improvement.” The Report goes on to say that Dr Medley’s Report is compelling, but that it is also apparent from Dr Medley’s report that he believes that “some basic safeguards would seem prudent” to mitigate against future risk. It then states that Dr Medley’s report serves to strengthen its view that there continues to be an unacceptable risk. It says that ISA has no scope to impose a ‘partial bar’ or any type of restriction on PH which would allow the recommendations made by Dr Medley to be incorporated into any future employment and as such, the ISA must balance the level and nature of the risk identified against the impact on PH of continued inclusion on the Adults’ Barred List.

48. We have formed the view that ISA has fundamentally misconstrued Dr Medley’s Report. We fail to see how his Report can strengthen the view expressed by ISA that there continues to be an unacceptable risk. Dr Medley refers to PH as having considerable insight, and we have to say that this was our view on the basis of PH’s evidence to us, and his answers to the detailed questions put to him both by Ms Leventhal in her cross examination and by the specialist panel members. Both Dr Medley and the panel members have had opportunities, in different contexts, to question PH and to analyse his answers. The ISA Caseworker has relied solely on paperwork.

49. The suggestion by Dr Medley that there be a basic risk assessment before he is engaged in work with vulnerable adults is in our view a very sensible suggestion which we understand would be provided in any event by the Church authorities were PH to seek voluntary work in the Beacon Project (a Church based project working with homeless people often with drug problems) or any other project of that kind. We understand from the evidence given to us by both PH and Mr Harding that work that PH might be engaged in would in any event be supervised and he would not work on his own. But the thrust of Dr Medley’s Report is very clear, namely “it is difficult to see how he could pose a risk to vulnerable adults.”

PH’s evidence

50. PH told us that he would like to work at the Beacon Project again and to speak at the Men’s meetings associated with the Church. When he last worked in the project he was mainly in the kitchen preparing food, clearing tables, and cutting grass in the church. He said that if he were to work again in the Project and he found himself in sole charge of a group and his stress levels rose, then he would simply walk away. He accepts Dr Medley’s diagnosis, but he believes that he would recognise a recurrence. In answer to detailed questions from panel members, PH said that he had in the past taken responsibility for other people’s problems and would try to solve them without seeking help. His mindset has now changed, and now, for example if his wife became ill again, he would go to his GP and he would not try to handle the issues alone. He described his previous state as a “bulldog spirit” and told the Tribunal that this had definitely gone. His home environment has clearly improved; his wife is well at present and she is completing a degree, and his daughter is much better.

51. In analysing PH’s evidence we have formed the view that he has now developed insight, that his depressive disorder is under control, and that he now has confidence in himself. He is obviously a very different person to the person who assaulted the school boy in 2009.

Mr Harding’s evidence

52. Mr Harding’s evidence was helpful to us primarily in his description of the Beacon Project, but also in the fact that he has known PH for many years. Having seen PH give evidence to us, we would agree with Mr Harding’s assessment of PH as a man who has good personal skills which could be used to provide basic support for those who are utilising the Beacon Project.

Conclusion

53. There will be cases where it will follow that a decision to place a person on one list will inevitably result in placing him or her on the other list, based on the assessments of the risk involved. The assessment however must be made on an analysis of the evidence and on reasoned inferences, not on mere assertions.

54. In this case, it is our view that the ISA has not given any detailed thought to the reasons for placing PH on the Vulnerable Adults’ List. Indeed, we are inclined to adopt the phrase used by Mr Broach that in this case ISA has been “worryingly myopic.”  This is particularly the case because it has adopted the various safeguards identified as prudent by Dr Medley, and indeed by Mr Harding as well, as a reason for the Barring on the Vulnerable Adults’ List. These safeguards are suggested by Dr Medley, for a different reason, namely to  support his opinion that PH represents a low risk. Given that these safeguards will be in place, an absolute bar is in our view disproportionate.

55. Ms Leventhal’s concluding submissions were a valiant attempt to support ISA’s decision. She acknowledged however that PH was open and straight forward in his evidence to us about his illness. We have no medical evidence relating to risks of reoccurrence, and Ms Leventhal is merely speculating when she submitted that it is difficult for someone who is depressed to recognise warning signs. PH told us that he had confidence that he would recognise any warning signs of reoccurrence, and that he would act accordingly. We were impressed by this evidence.

56.  Ms Leventhal submitted also that his unfortunate home circumstances are still present. Again, however, the evidence from PH, Mr Harding, and Dr Medley would appear to contradict this submission, and the circumstances that PH faced in 2009 are no longer central in his life; he is not working in a difficult school, his wife is much better, his children are near independence and his daughter’s health is much improved, he himself takes medication, and he has insight into his illness. He no longer takes on the problems of others.

57. Ms Leventhal submitted to us that ISA conducted a detailed balancing exercise, considered all of the evidence, and made a decision that was proportionate. We are unable to agree with her. The exercise ISA conducted was not a balancing exercise, and in particular ISA misconstrued the evidence of Dr Medley, the only medical evidence that was before them. The decision that they made was disproportionate, and accordingly constituted an error of law, and must be quashed.

58. Both Mr Broach and Ms Leventhal were in agreement that if the Tribunal were to conclude that the decision of the ISA was a decision marred by an error of law, the remedy that the Tribunal should apply is to quash the decision, and direct the Respondent to remove the name of the Appellant from the Adults’ Barred List. We so direct.

 

 

(Signed on the Original)

His Honour Judge David Pearl

Mr Michael Flynn

Mr Peter Sarll

 

20 March 2012