IN THE UPPER TRIBUNAL	Case No.  HC/2590/2010
ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Attendances:

For the Appellant:	Mr Jonathan Barker, solicitor of Richmond Anderson Goudie, Chester-le-Street

For the Respondents:	Ms Samantha Broadfoot of counsel, instructed by the Treasury Solicitor

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal dated 2 July 2010 is set aside insofar as the First-tier Tribunal found that the appellant was unsuitable to work with vulnerable adults or children and the case is remitted for further consideration of that issue by a differently-constituted panel.

REASONS FOR DECISION

1.	The Appellant, now aged 25, was employed by a mental health charity as a support worker.  On 15 July 2008, she was required to stay from 5pm until 6.30am in the home of a young woman, S, suffering from mental health difficulties.  The First-tier Tribunal found that she left S’s home for about an hour, from 11.45 pm until 12.45 am, while she thought that S was asleep.  She was seen to leave and return by another support worker working nearby who reported her to her employer.  Her employer dismissed her for gross misconduct and, on 30 September 2008, informed the Secretary of State for Health.  On 27 November 2008, the Independent Safeguarding Authority, acting is the role of advisor to the Secretary of State sought representations from the Appellant.  The Appellant denied leaving S’s home and she has continued to do so.

2.	On 2 March 2009, the Secretary of State for Health provisionally included the Appellant on the list of individuals who were considered unsuitable to work with vulnerable adults, maintained under section 81 of the Care Standards Act 2000.  The Secretary of State for Children, Schools and Families, as he then was, also provisionally included her in the list maintained under section 1 of the Protection of Children Act 1999.  On 26 June 2009, the Secretaries of State confirmed those listings and the Appellant was also informed that she had been included in “List 99”.  

3.	The reasons given were that:

“(a)	your former employer reasonably considered you to be guilty of misconduct which harmed or placed at risk of harm a vulnerable adult, by leaving your shift without reason or permission to do so which resulted in the service user being left alone during the night in a locked house from which she had no means of exit; and

(b)	… you are considered unsuitable for work with vulnerable adults because you have shown no understanding of the high level of risk and potential danger hat the service user was exposed to and it is considered probable that you could behave in a similar manner in the future if you were to continue working in this field.”

4.	The Appellant appealed to the First-tier Tribunal.  The First-tier Tribunal, having heard sworn evidence from the Appellant, the support worker who claimed to have seen her leaving S’s home and their manager, dismissed the Appellant’s appeal, having accepted the evidence of the other support worker and decided that the Appellant was unsuitable to work with vulnerable adults or children.

5.	The Appellant now appeals with my permission.  She does not challenge the First-tier Tribunal’s finding that she left S’s home and therefore was “guilty of misconduct … which harmed or placed at risk of harm a vulnerably adult” (section 86(3)(a) of the Care Standards Act 2000 and also section 4(3)(a) of the Protection of Children Act 1999 as modified by section 2C(5)), recognising that the First-tier Tribunal reached a decision it was entitled to reach and for which it has recorded adequate reasons.  However, she does challenge the findings that she “is unsuitable to work with vulnerable adults” (section 86(3)(b) of the 2000 Act) or “is unsuitable to work with children” (section 4(3)(b) of the 1999 Act).

6.	As has been common in proceedings before the First-tier Tribunal, the parties made their submissions on suitability at the same time as making their submissions on the evidence and therefore before the First-tier Tribunal had made its finding of misconduct.  It is clear from paragraphs 26 and 27 of the First-tier Tribunal’s decision that the parties’ representatives, Mr Barker and Ms Broadfoot who have also appeared on this appeal, drew the First-tier Tribunal’s attention to the decision of the care standards tribunal in Mairs v Secretary of State for Education and Skills [2004] 269 PC and in paragraph 30 it is recorded that Mr Barker submitted “that even if the Tribunal found [the Appellant] left the service user, this would not be grave misconduct and would constitute an isolated incident at the lower end of the sale and ‘whilst the Appellant does not accept the incident took place … even if it did take place this was a one off incident and the risk of harm, such as it was, was very modest’”.

7.	In setting out the law, the First-tier Tribunal said, at paragraph 38 –

“The purpose of the listing scheme is to protect children from those who are employed to work with them and to maintain public confidence in the care provided to children.  Listing under the scheme involves a difficult balancing exercise between the safety of children and the rights of individuals to have their livelihoods and reputations safeguarded (see Lady Justice Hale in R. v Secretary of State for Health, ex parte C [2000] EWCA Civ 49).  We consider that this exercise is equally applicable for vulnerable adults.”

8.	At paragraph 41, it also set out in full paragraph 111 of Mairs, in which the care standards tribunal considered the issue of unsuitability under the Protection of Children Act 1999 and said –

“Unsuitability must be judged by the Tribunal at the date of the hearing. The judgment 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 judgment 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 a child or placed a child at risk of harm. The Tribunal may have regard to:
    (a) 	the number of the incidents constituting the misconduct established for the purposes of section 4(3)(a) of the Act;
    (b) 	the gravity of that misconduct;
    (c) 	the time that has elapsed since that misconduct;
    (d) 	the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential to harm a child;
    (e)	 the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct; and
    (f) 	extenuating circumstances surrounding the misconduct.
This should not be regarded as an exclusive list. The Tribunal may also have regard to other admitted, undisputed or proved past conduct of the applicant, whether good or bad.”

9.	Having considered the conflict of evidence, it said –

“45.	…  We conclude that [the Appellant] did leave S's home for approximately one hour whilst she thought S was asleep.

46.	Following this conclusion we find that [the Appellant] has been guilty of misconduct and taking into account the nature of this misconduct we are satisfied that it had the potential to cause significant harm to S.  [The Appellant] had specific duties because of S's known vulnerability.  We accept that unusually this required a continuous physical presence.

47.	We do not consider that the incident can be considered in isolation.  It is clear from our findings that during the evening [the Appellant] left S's home on more than one occasion.  We do not believe she has changed her approach since that time as it is clear she does not accept that the events constituting misconduct, took place.  In these circumstances we find that she is unsuitable to work with vulnerable adults and for similar reasons determine it would be inappropriate for her to work with vulnerable children.  [The Appellant] should remain on the POCA and POVA lists.”

10.	It should be noted at the outset that one fact that must have played a significant part in the Secretary of State’s final listing decision was not relied upon by the Secretary of State when resisting the appeal to the First-tier Tribunal and played no part in Ms Broadfoot’s submissions before me.  Neither the Appellant’s employer nor the First-tier Tribunal found that the Appellant’s actions “resulted in the service user being left alone during the night in a locked house from which she had no means of exit”.  I think that the explanation for that is that, whereas the Appellant in her first disciplinary interview had referred only to S’s door having a mortice lock and in her provisional listing representations appears to have inferred from the allegation that she had taken the key with her that it was being alleged that she had left S without a key to get out of the door, her manager explained in her witness statement for the First-tier Tribunal that the door had two locks, one of which was a Yale lock.  S had said to the manager that she was frightened after she heard the Appellant leave and saw the key gone, but, as far as I can see from the documents before me, there is nothing that amounts to evidence that the door was locked in a way that would have prevented S from leaving her home without a key had she needed to do so in an emergency or that any such suggestion was ever put to the Appellant by her employer or, except in the final listing decision itself, by the Secretary of State.

11.	The case for the Secretary of State was, and is, simply that the claimant had harmed S or placed her at risk of harm by absenting herself from S’s home for an hour when the whole point of the Appellant being at S’s house at all was that, as the First-tier Tribunal said, “S’s known vulnerability … unusually … required a continuously physical presence”.

12.	The manager’s witness statement provides more background information.  S had a history of self-harm and threats of suicide.  She was aged 18 or 19 at the material time and was living independently for the first time, having previously been living with foster parents while in care.  The manager said:

“She requires help with a wide variety of tasks.  [S] needs to be assisted with all aspects of finances/budgeting because she has difficulty handling finances and is naïve in the sense that she could be inclined to give away her possessions.  She is a worrier and gets anxious and needs a lot of reassurance.  She worries about being secure within her home.  For this reason, [S] is provided with a copy of the rota so she knows which members of staff will be coming to her home and what time they are expected to arrive.  [S] will be straight on the phone to the office if a member of staff is late for their shift and she has not been notified in advance.  [S] can make basic snacks for herself but is assisted with cooking and preparing meals.  We have also assisted [S] to look at further education/work options and we arrange for her to attend GP and other appointments.”

S had been adjudged to require 42 hours per week of support during the day and eight hours night-time sleepover support at night.  This night-time support had been provided even when there had been another young person living in the house with S.  The support worker was not expected to be awake all night.  There was a room where she could sleep.  It was necessary merely that she should be on call.  Support workers providing night-time cover would also provide day-time support, which might consist of shopping, sitting and socialising with S.  It appears that the Appellant’s long shift involved some day-time support as well as the night-time support.

13.	I granted permission to appeal partly on the ground that it was arguable that the effect of the First-tier Tribunal’s decision was disproportionate.  I accept that it would have been more accurate to say that the issue was whether the First-tier Tribunal could reasonably have found the claimant to be unsuitable to work with vulnerable adults or children.

14.	In Mairs, it was said at paragraph 112 –

“In Cunningham v. Secretary of State for Health [2002] 2.PC the Tribunal said that ‘one aspect of suitability is an assessment of risk, and that this inevitably involves issues of balance and of proportionality’.

In ARR v. Secretary of State for Education and Skills [2004] 0271.PC the Tribunal held that the provisions of the Act are themselves a proportional response to the obvious need to protect the interests of children.

In so far as these statements of principle are different, the Tribunal accepted the latter. The Tribunal must respect Parliament's choice of mandatory language in section 4(3) of the 1999 Act. It must not substitute its own policy views for the clearly articulated view of Parliament. The statute itself does the balancing and ensures proportionality. There is no support in authority for the proposition that the Tribunal must imply an extra, proportionality, limb to the statutory test.”

15.	In my judgment there was no conflict between the two authorities cited in that case.  It was acknowledged in ARR that the test of suitability itself involved the balancing exercise mentioned by Hale LJ, with whom Lord Woolf MR and Lord Mustill agreed, in R. v Secretary of State for Health, ex parte C [2000] EWCA Civ 49; [2000] 1 F.L.R. 627.  What was rejected in ARR was an argument advanced by counsel seemingly to the effect that the Human Rights Act 1998 and general public law principles required proportionality to be considered as a separate issue even if a person had been found to be unsuitable to work with children.  That, as was pointed out in both that case and Mairs, would have been inconsistent with the statutory language.  It would also have been unnecessary because it is obvious that the flavour of the word “unsuitable” in both the 2000 Act and the 1999 Act must be derived from its context and that a person is to be regarded as unsuitable to work with vulnerable adults or children only if listing him or her with the inevitable consequences would be a proportionate response to any shortcomings he or she has.  Otherwise, the balancing exercised envisaged by the Court of Appeal in R. v Secretary of State for Health, ex parte C and also in R.(M) v London Borough of Bromley [2002] EWCA Civ 1113; [2002] 2 F.L.R. 802, cited in Cunningham, would not be carried out.

16.	In any event, Mr Barker submitted in his skeleton argument that the effect of the decision was that the Appellant had been found to be unsuitable to work with vulnerable adults or children by virtue of her decision to contest the factual allegations against her and that that was perverse.  However, at the hearing, he did not strenuously argue that the decision was perverse and I think rightly so  I am not persuaded that the First-tier Tribunal’s decision was perverse in the sense that it was not one it could have reasonably have reached.  It could quite properly have decided that including the Appellant in the two lists (and List 99) was a proportionate and generally appropriate response to her misconduct.  In particular, the First-tier Tribunal clearly considered the actual misconduct of which it had found the Appellant to be guilty to be serious and it did not rely only on the Appellant having lied about the events on the relevant evening.  I will return below to the specific issue of the approach it took to the Appellant’s denial.  

17.	However, Mr Barker’s principal submissions were that the First-tier Tribunal had either failed to have regard to material considerations when considering suitability or else had failed to record the considerations to which it had had regard so that its reasoning was inadequate.  He pointed out that, although the statement of reasons set out the passage from Mairs listing various relevant factors, it did not refer to any of those factors when specifically recording the reasons for the First-tier Tribunal’s conclusion on suitability.  Nor did it refer to a written reference put before the First-tier Tribunal in support of the Appellant, in which a care co-ordinator in a company that had employed the Appellant after her dismissal for misconduct explained that the Appellant had informed the company of her dismissal for misconduct but had nonetheless had excellent references from other employers and had been employed by the company until she had been provisionally listed by the Secretaries of State.  The writer of the reference said that she “would be extremely happy if [the Appellant] is able to return to the care industry and would not hesitate in giving her employment” were she not listed.  Mr Barker conceded that it was not necessary for a tribunal to refer to every matter mentioned in Mairs but he submitted that the decision on suitability was so short as to suggest that the First-tier Tribunal in this case had not had regard to any of the material considerations.

18.	 Ms Broadfoot, however, submitted that, taken with its findings, the reasoning of the First-tier Tribunal was adequate, despite being short, and she referred to R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982; [2005] INLR 633, in which the Court of Appeal said –

“13.	…  Adjudicators were under an obligation to give reasons for their decisions (see reg 53 of the Immigration and Asylum Appeals (Procedure) Regulations 2003), so that a breach of that obligation may amount to an error of law. However, unjustified complaints by practitioners that are based on an alleged failure to give reasons, or adequate reasons, are seen far too often. The leading decisions of this court on this topic are now Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119 and English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409. We will adapt what was said in those two cases for the purposes of illustrating the relationship between an adjudicator and the IAT. In the former Griffiths LJ said at p 122: 

‘[An adjudicator] should give his reasons in sufficient detail to show the [IAT] the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. I cannot stress too strongly that there is no duty on [an adjudicator], in giving his reasons, to deal with every argument presented by [an advocate] in support of his case. It is sufficient if what he says shows the parties and, if need be, the [IAT], the basis on which he has acted, and if it be that the [adjudicator] has not dealt with some particular argument but it can be seen that there are grounds on which he would have been entitled to reject it, [the IAT] should assume that he acted on those grounds unless the appellant can point to convincing reasons leading to a contrary conclusion.’

14.	In English Lord Phillips MR said at para 19: 

‘[I]f the appellate process is to work satisfactorily, the judgment must enable the [IAT] to understand why the [adjudicator] reached his decision. This does not mean that every factor which weighed with the [adjudicator] in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the [adjudicator]'s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the [adjudicator] to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon.’

15.	It will be noticed that the Master of the Rolls used the words ‘vital’ and ‘critical’ as synonyms of the word ‘material’ which we have used above. The whole of his judgment warrants attention, because it reveals the anxiety of an appellate court not to overturn a judgment at first instance unless it really cannot understand the original judge's thought processes when he/she was making material findings.”

Ms Broadfoot placed particular emphasis on that last sentence, arguing that it was quite clear what the First-tier Tribunal had decided in the present case and why it had decided it.  She also submitted that it had had regard to all the material factors.

19.	Cases on the adequacy of reasons tend to be very fact-specific.  There are obviously cases under the 2000 Act and 1999 Act where the finding of misconduct is such that there is virtually nothing else to be said on the subject of unsuitability.  However, where, as here, it is argued that, even if misconduct is proved suitability remains a live issue, it is likely to be necessary for the First-tier Tribunal to consider the issue carefully.  It is not necessary for the First-tier Tribunal expressly to deal in its statement of reasons with each of the matters mentioned in Mairs or with every argument advanced by an appellant, but it is at risk of being criticised if it does not allude to those matters where it is not necessarily obvious what conclusion it might have drawn.

20.	In the present case, there was a difference of views as to the gravity of the misconduct – item (b) in the Mairs list.  It certainly justified dismissal but in considering the question of unsuitability it seems to me that some evaluation of the real risk of harm to which S had been exposed had to be made.  I am not satisfied that it was enough to say that S was liable to get anxious, had a risk of self-harm and threats of suicide and that it had been recognised that a constant presence at night was required to avoid or minimise risks.  Plainly there was a risk that S would get anxious if she discovered that she had been left by herself when there should have been someone sleeping in and that, even though the First-tier Tribunal found that the Appellant had thought S was asleep, there was a risk that she would wake up or, as actually happened, that she was not in fact asleep.  However, there are different levels of anxiety and it is not clear whether anxiety was liable to lead to self harm or risks of suicide or whether those were more likely to be triggered by other factors and how likely they were to arise without previous warning during an absence of an hour.  The First-tier Tribunal recorded that the manager had said that S had told her that she had been “very shaken and frightened”, but there was no finding as to how serious that was or what risks it posed.  It might, for instance have been commented that S appears to have at least dosed off fairly quickly because she did not hear the Appellant re-enter the house and the Appellant then went to bed and slept through the night and, indeed, overslept.  The fact, if it be a fact, that S was not particularly upset on this occasion would not, of course, mean that there was no risk that she might not have been much more upset but it does invite the question of how great the risk really was on this particular night and therefore to what degree of risk the appellant had been prepared to expose her.

21.	This issue is also relevant to another point, which is that the First-tier Tribunal specifically referred in its reasoning to the Appellant having left S’s home on another occasion that evening.  Its record of the evidence and its findings about this appears at paragraph 13 of the statement of reasons –

“About 7;00pm [the appellant] left S’s home to drive to ASDA to buy a sandwich, although it is not clear whether this was for her or S.  [The Appellant] stated that S agreed that she should go to ASDA; nothing more has been made of this.”

I have some difficulty in seeing what relevance this was to the Appellant’s suitability.  It was never suggested by anyone that that absence placed S at a risk of harm.  She was vulnerable but she was not a young child and it appears that she was not assessed as needing constant supervision throughout every day.  This incident does not even seem to have been regarded as being a ground for dismissal by the Appellant’s employer, although it may technically have been a breach of her instructions.  Yet the First-tier Tribunal referred to it when saying that the later incident could not be considered in isolation.  In Mairs, item (a) was “the number of incidents constituting the misconduct established for the purposes of section 4(3)(a) of the Act”.  Misconduct that does not place a vulnerable person or child at risk may also be relevant but its relevance is likely to require explanation.

22.	Apart from the additional incident of absenting herself from S’s home, the only reason given by the First-tier Tribunal for its finding of unsuitability other than its findings of fact about the main incident appears in a single sentence –

“We do not believe she has changed her approach since that time as it is clear she does not accept that the events constituting misconduct, took place.”

That seems to me to confuse two issues that commonly arise in this sort of case.  One is whether an appellant accepts that what he or she has done is wrong – in other words, whether the events constituted misconduct.  A lack of insight might be a reason for finding that the appellant was unlikely to change his or her behaviour.  The other is whether an appellant has denied that the events occurred at all.  The implication of that is that the appellant has lied, but that is likely to be because he or she knows only too well that the alleged events would have constituted misconduct.  Lying raises a number of issues but it does not necessarily show a likelihood of a repetition of misconduct that has placed a vulnerable adult or child at risk, particularly where there has been only a single incident of such misconduct.

23.	One effect of lying is that a person who does not admit misconduct may be inhibited from making the best arguments for the misconduct not being treated as being as serious as it might otherwise be.  Thus, for instance, it was impossible for the Appellant in the present case to explain what risk she actually thought at the time there was in leaving S by herself and it might have been less convincing to explain what risk she later thought there would have been.  That is a difficulty that the Appellant brought upon herself.

24.	However, the more important effect of lying is that it may be thought that a person might lie again in the future and that a vulnerable person or child may be put at risk in consequence.  On the other hand, that is not necessarily so.  It is important to note that conviction of an offence of dishonesty does not necessarily result in a person being listed under the 2000 Act, the 1999 Act or the Safeguarding Vulnerable Groups Act 2006 and people may lie for a variety of reasons.  Context may be important.  A finding on the balance of probabilities that a person has been guilty of misconduct that has been denied generally implies a finding that the denial was a lie which must usually be regarded as additional misconduct or as an aggravating feature.  However, it would be wrong to treat it as a factor that necessarily requires listing or barring.  I agree with Ms Broadfoot that treating dishonesty as additional misconduct or an aggravating feature has the advantage that honesty is, as she put it, “incentivised”, but to treat it too severely would run a risk of encouraging people to admit to things they have not done.  The repetition of a single lie to an employer, to the Secretary of State and to the First-tier Tribunal is obviously a repetition of misconduct and does not gain for the liar the substantial mitigation there would be in an admission to the Secretary of State, but it may be less important than lying about a number of different incidents.  What is also important is whether lying has added to the risk of harm to a vulnerable adult or child by, for instance, delaying medical treatment, or whether it is thought that the appellant might lie where there would be such a risk.  The statutory question remains whether the conduct, including the lie, is such that there is a risk of harm to vulnerable adults or children that is significant and justifies the consequences of listing or barring.  Evidence of honesty in other employment, particularly examples of having admitted failings, is likely to be relevant in judging the level of risk.

25.	Dishonesty may, of course, make the First-tier Tribunal reluctant to accept an assurance that past misconduct will not be repeated.  It is conceivable that that is what the First-tier Tribunal meant in this case, but it is not what it said.

26.	In my judgment, the reasoning of the First-tier Tribunal on the issue of suitability is inadequate in this case and leaves open the significant possibility that it did not adequately consider the relevant factors and that it had regard to an irrelevant factor.  No clear finding has been made as to the degree of harm to which S was exposed.  No explanation has been given for regarding the Appellant’s earlier absenting of herself from S’s home as being a significant factor in assessing her suitability to work with vulnerable adults or children.  A bad explanation has been given for regarding the Appellant’s dishonesty as of significance.  I also consider that the First-tier Tribunal should have made some allusion to the reference the Appellant had from her other employer, although I do not consider that the failure to refer to that would, by itself, have been sufficient to render the decision erroneous in point of law.  

27.	When I granted permission to appeal, I also raised the question whether the First-tier Tribunal should have had regard to the Structured Judgment Procedure (the “SJP”) used by the Independent Safeguarding Authority when it decides whether or not to include people in the barred lists established under the 2006 Act and I said that it would be helpful if the Secretary of State were to obtain the Authority’s view as to whether the Appellant would have been barred applying that approach.  The Authority rebuffed the request, suggesting that consideration of a case under the SJP is not relevant to a case that must be considered under the 2000 Act or 1999 Act.  I did not press the point but I find the reaction of both the Authority and the Secretary of State slightly odd and not helpful.

28.	It cannot be an error of law not to refer expressly to the SJP but it does not follow that it might not be good practice to do so.  Although the 2006 Act provides for a slightly different scheme for listing and barring than the 2000 Act and 1999 Act, I find it difficult to see why the assessment of suitability should be very different, particularly as those listed under the 2000 Act and 1999 Act are then migrated to the lists maintained under the 2006 Act and so generally made subject to the same restrictions on employment and other activities.  The SJP is, as the Authority says, “a framework devised by the Independent Safeguarding Authority to aid case workers reach decisions as to whether, having first determined that either prescribed criteria for auto inclusion cases are met, or relevant conduct or risk of harm, as defined in paragraph 4 and 5 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 is established in respect of the person referred to the ISA, the future risks are such that the ISA would propose to include a person a barred list”.  It provides a structured and logical way of assessing the risks.  Therefore, as Mr Barker argued, it covers the same sort of ground as paragraph 111 of Mairs, but in more detail.  A tribunal that applies the SJP and sets out its reasoning accordingly is unlikely to have its decision set aside for inadequacy of reasoning.  Moreover, since the Authority advises the Secretary of State, one might expect that, when the Secretary of State argues before the First-tier Tribunal that a person ought, if found guilty of the alleged misconduct, be included in the lists maintained under the 2000 Act and 1999 Act, his reasoning is as thorough as one would expect from a decision made under the SJP.  The Secretary of State is not under any duty to disclose the advice provided by the Authority, but it is difficult to see what it might be about its reasoning that the Secretary of State might wish to hide rather than advancing as persuasive argument before the First-tier Tribunal.  The expertise of the Authority has been given as the reason for there being no right of appeal to the Upper Tribunal on the question of suitability, notwithstanding that Upper Tribunal judges sit with expert members in all appeals under section 4 of the 2006 Act.

29.	In the Secretary of State’s response to this appeal, Ms Broadfoot further argued that the Authority expressing a view on the present Appellant’s suitability would not be a proper comparative exercise because the First-tier Tribunal heard oral evidence and the Authority would not.  However, when making decisions under the 2006 Act, the Authority invariably makes its unappealable judgments without holding oral hearings.  In this case, I do not see why it could not have expressed a view on the basis of the written evidence and the First-tier Tribunal’s statement of reasons, which included references to the oral evidence and its findings of fact.  If it did need more evidence, it could have asked for it.  Given the terms of the SJP, I would have been interested in its reason for regarding the Appellant to be unsuitable to work with vulnerable adults or children on the basis of a single incident of misconduct of the type involved in this case.

30.	An opinion at this level might have assisted with my evaluation of the First-tier Tribunal’s reasoning but the more significant effect of one not having been provided is that I do not consider that I should substitute my own decision for that of the First-tier Tribunal.  That is not to say that I would necessarily have agreed with an opinion had it been provided but I would probably have been confident that I had not overlooked any relevant consideration and that I could therefore properly substitute my own decision for that of the First-tier Tribunal.  As it is, the parties in this case were agreed that, if this appeal were allowed, the case should be remitted to the First-tier Tribunal where a judge sits with expert members.  (The members of the First-tier Tribunal with relevant expertise are largely also the expert members of the Upper Tribunal with whom judges sit on appeals under section 4 of the 2006 Act but I have no power to sit with them when hearing an appeal from the First-tier Tribunal under section 11 of the Tribunals, Courts and Enforcement Act 2007 even though the Upper Tribunal’s power to substitute a decision on such an appeal is much wider than the power of either the Upper Tribunal or the High Court to substitute a decision in judicial review proceedings.)

31.	The parties were also agreed that, in the circumstances of this case, if I were minded to allow the appeal I should set aside only the First-tier Tribunal’s findings as to suitability and not also its finding that the Appellant was guilty of misconduct which harmed or placed at risk of harm a vulnerable adult.  However, the parties were not agreed as to whether the panel of the First-tier Tribunal to which this case should then be remitted should be, if possible, the same as the panel whose decision had been set aside or an entirely different panel.  Ms Broadfoot submitted that this was a classic example of a case where the panel should be the same and Mr Barker submitted that it was a classic example of one where the panel should be different.  On one hand, it is said that the panel should be the same because it has heard all the evidence of misconduct, it would be unfair to require all the witnesses to give evidence again and the panel’s view of the Appellant as a witness would be material.  On the other hand, it is said that the panel should be different because the first panel’s written findings of fact can be relied upon by a new panel and it is important that the issue of suitability be seen to be considered afresh.  On balance, I accept Mr Barker’s submission on this issue.

32.	It is open to both parties to consider what further evidence, oral or written, they wish to adduce on the issue of suitability.  The Secretaries of State may also wish to consider advancing a structured assessment of the risk that they say the Appellant would pose if she were to work with vulnerable adults or children and therefore requires her name to be included in the lists.  In any event, I would expect the Appellant to attend the hearing and be prepared to answer any questions the First-tier Tribunal might have even if it is not proposed that she would otherwise be called to give evidence. 

33.	For the reasons given in paragraph 28, I allow this appeal and, for the reasons given in paragraphs 30 and 31, I remit the case to the First-tier Tribunal for the issue of suitability to be considered by a differently-constituted panel.

Mark Rowland
14 November 2011