Decision date: 18 July 2012

The Court of Appeal reiterate the need to give appropriate weight to the decision of a body charged by statute with a task of expert evaluation.

In July 2009 SB pleaded guilty to 21 offences relating to possession of indecent images (mostly level 1, although 6 at level 5) and 1 offence of distribution of an indecent photograph of a child (level 1). He was sentenced to suspended sentences of imprisonment, for the duration of which he was ordered to participate in a Sex Offender Treatment Programme (SOTP). He was subjected to a Sexual Offence Prevention Order (SOPO) until further order which prohibited him from seeking or taking paid or voluntary employment with children under 16, and he was included on the Sex Offender Register for 10 years.

The matter was duly referred to the Independent Safeguarding Authority (‘ISA’) who on 6 April 2010 informed him that he had been placed on both the Adults’ Barred List and the Children’s Barred List. On 13 May 2010 SB made representations to the ISA to seek his removal from those lists, enclosing various documents including his Pre-Sentence Report, a risk assessment document and numerous references. He claimed that he now accepted that his behaviour amounted to child abuse, but had sought to address his behaviour and had completed the SOTP. On 16 July 2010, the ISA informed SB that having considered his representations, it had decided to remove his name from the Adults’ Barred List but to retain it on the Children’s List and provided him with written reasons. SB appealed to the Upper Tribunal (Administrative Appeals Chamber) (‘UT’) on the grounds that there had been a reference by the ISA to his having being given a Disqualification From Working With Children Order, which was in fact not the case and that the continued inclusion on the List was disproportionate.

The UT concluded that the mistake of fact relating to the Disqualification Order (which was conceded by the ISA) was not a material error of fact, given that the Crown Court Judge had imposed the conditions under the SOPO. They then considered whether there had been an error of law. Despite submissions to the contrary from the ISA, the UT held that it was entitled ‘to examine the evidence and to allocate weight to it and decide whether the balance has been struck in the right place’. The UT considered all the material that had been before the ISA, heard live from SB himself (unlike the ISA). They found that the risk assessment in the PSR and the references ‘seemed not to have been given any weight at all’ and that insufficient consideration had been given to ‘the issue of SB as a person’. They concluded that, in light of the error of law it had identified, it would remove SB from the Children’s Barred List rather than remit the matter back to the ISA.

The ISA appealed that decision on three grounds, only two of which fell to be considered.

The first ground of appeal was in relation to the UT’s approach to proportionality. It was conceded on behalf of the ISA that the UT is entitled to determine proportionality and rationality as per Wyn Williams J in R (Royal College of Nursing) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin). This would, of course, be necessary for any decision to be compliant with Article 8 of the European Convention on Human Rights. However, what the UT cannot do, said the ISA, is carry out a full merits reconsideration, its jurisdiction being more limited than that of its predecessor the Care Standards Tribunal under previous legislation. It was therefore argued that the UT failed to accord appropriate weight to the decision of the ISA. 

Kay LJ held that it appeared to him that the UT did not accord any particular weight to the decision of the ISA but proceeded to a de novo consideration of its own. It was his conclusion that the UT was simply carrying out its own assessment of the material before it. Its finding that SB did not minimalize his offences and accepted the seriousness of them was not supported by the detailed assessment carried out by a caseworker at the ISA who had concluded to the contrary. It was not insignificant that whereas the UT judge is flanked by non-legal members who themselves come from a variety of relevant professions, they are or may be less specialised than the ISA decision-makers who have relevant knowledge and experience of protection of children and vulnerable adults. It was said that, ‘the ISA is particularly well equipped to make safeguarding decisions of this kind, whereas the UT is designed not to consider the appropriateness of listing but more to adjudicate upon ‘mistakes’ on points of law or findings of facts’. 

The second aspect of the appeal stemmed from the failure of the UT to refer to public confidence as a material consideration. Such a failure was, it was successfully submitted, at odds with the jurisprudence of the Care Standards Tribunal which acknowledged the importance of that consideration despite the omission of express reference in the legislation. It was held that; ‘True, public confidence is not an inevitable trump card. However, it is something which must be placed in the scales when consideration is being given to the personal characteristics and interests of an appellant.’

The ISA’s appeal was therefore allowed, quashing the decision of the UT and restoring that of the ISA.

This case highlights the differences between the regimes of the Care Standards Tribunal and its successor the ISA, the latter being a specialist body comprising experienced individuals well versed in child and vulnerable adult protection. It is also a reminder that tribunals and courts of appeal must take care not to go beyond their remit in matters before them.