MR v 3918 2013
| Jurisdiction | UK Non-devolved |
| Judge | Judge M. Rowland |
| Judgment Date | 05 January 2015 |
| Neutral Citation | 2015 UKUT 5 AAC |
| Subject Matter | Safeguarding vulnerable groups |
| Respondent | Disclosure and Barring Service |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | v 3918 2013 |
| Appellant | MR |
MR v Disclosure and Barring Service
[2015] UKUT 0005 (AAC)
IN THE UPPER TRIBUNAL Case No. V/3918/2013
ADMINISTRATIVE APPEALS CHAMBER
Before: Upper Tribunal Judge Rowland
Ms Michelle Tynan
Mr John Hutchinson
Attendances:
The Appellant appeared in person
The Respondent was represented by Ms Galina Ward of counsel, instructed by Ms Catherine Nicholls, Legal Advisor to the Disclosure and Barring Service
Order: Disclosure or publication of the names of Patient A, patient b or Miss C, or of any matter likely to lead members of the public to identify them, is prohibited. Any disclosure or publication in breach of this Order is liable to be treated as a contempt of court and punished accordingly.
Decision: The Appeal is allowed and the matter is remitted to the Respondent for a new decision on the basis that the Appellant did not have any sexual relationship with Patient B.
REASONS FOR DECISION
1. On 26 August 2011, the Respondent’s predecessor, the Independent Safeguarding Authority, included the Appellant in the Adults’ Barred List maintained under the Safeguarding Vulnerable Groups Act 2006, having previously indicated on 12 April 2011 that it was minded to do so as a result of which the Appellant had made detailed submissions. It found as a fact that the Appellant had been cautioned on 12 February 2007 in respect of an assault occasioning actual bodily harm to his then wife and that, while practising as a general medical practitioner, he had conducted two separate sexual relationships with vulnerable patients (“Patient A” and “Patient B”). There had also been an allegation that he had engaged in unwanted sexual contact with a member of staff at the surgery (“Miss C”). The Appellant appealed to the Upper Tribunal and, on 26 June 2012, the Upper Tribunal allowed his appeal by consent on the ground that the Authority had not had proper regard to statutory guidance and there had therefore been a breach of paragraph 10(6) of Schedule 3 to the 2006 Act. The case was remitted to the Authority to be considered in the light of the guidance (MR v Independent Safeguarding Authority [2012] UKUT 234 (AAC)).
2. On 1 December 2012, the Respondent took over the Authority’s functions under the 2006 Act. On 31 July 2013, having obtained further representations from the Appellant, it again included the Appellant in the Adults’ Barred List. The caution in respect of the assault on his wife played no part in the reasoning in the decision letter but the Respondent relied on each of the other matters in deciding that inclusion in the List was appropriate. The Appellant again appealed, alleging both errors of law and an error of fact.
3. As regards the law, he submitted (a) that the Respondent had erred in still not having had proper regard to the statutory policy, (b) that the barring scheme was discriminatory on the grounds of age because those aged under 25 are entitled to apply for a review sooner than those of or over that age, (c) that the scheme was unfair because the effect of having won his previous appeal was that the new barring lasted for longer, (d) that the decision of the Respondent was disproportionate, (e) that the Respondent had appeared to acknowledge that he had taken steps to change his life but failed to take that into account and (f) that the Respondent’s decision breached Article 7 of the European Convention on Human Rights because it punished him for action committed before its formation.
4. As regards the facts, he denied ever having had a sexual relationship with Patient B. The question whether the Appellant had had a sexual relationship with Patient B was of considerable significance because, on any view, Patient B, who had serious mental health difficulties, was more vulnerable than Patient A and the Appellant did not argue that barring him had he had an affair with Patient B would have been contrary to the statutory policy or disproportionate.
5. We held an oral hearing. The Respondent, for good reason, had concluded that it could not rely on Patient B’s evidence in isolation but called Patient A to give evidence because she had made statements that appeared to be to the effect that the Appellant had told her that he had had an affair with Patient B. However, at the hearing, she made it clear that the Appellant had told her that he had been accused of having an affair with Patient B, rather than that he had actually done so. In the light of that evidence, the Respondent conceded that the appeal should be allowed.
6. The Respondent submitted that the case should be remitted for it to make a decision as to whether the Appellant should be included on the List on the basis that he had not had an affair with Patient B. The Appellant asked us to substitute our own decision directing that he be removed from the List. This disagreement requires us to consider the points of law raised by the Appellant and also to consider the extent of the Upper Tribunal’s powers.
7. As to the Upper Tribunal’s powers, section 4 of the 2006 Act provides –
“4.–(1) An individual who is included in a barred list may appeal to the Upper Tribunal against—
(a) [repealed];
(b) a decision under paragraph 2, 3, 5, 8, 9 or 11 of Schedule 3 to include him in the list;
(c) a decision under paragraph 17, 18 or 18A of that Schedule not to remove him from the list.
(2) An appeal under subsection (1) may be made only on the grounds that DBS has made a mistake—
(a) on any point of law;
(b) in any finding of fact which it has made and on which the decision mentioned in that subsection was based.
(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.
(4) An appeal under subsection (1) may be made only with the permission of the Upper Tribunal.
(5) Unless the Upper Tribunal finds that DBS has made a mistake of law or fact, it must confirm the decision of DBS.
(6) If the Upper Tribunal finds that DBS has made such a mistake it must—
(a) direct DBS to remove the person from the list, or
(b) remit the matter to DBS for a new decision.
(7) If the Upper Tribunal remits a matter to DBS under subsection (6)(b)—
(a) the Upper Tribunal may set out any findings of fact which it has made (on which DBS must base its new decision); and
(b) the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise.”
8. Where an appeal is allowed, subsection (6) appears at first sight to confer on the Upper Tribunal a broad discretionary power either to remove a person from the list or to remit the matter to the Respondent. However, it is noteworthy that it does not confer a power to confirm the person’s inclusion on the list on grounds other than those relied upon by the Respondent and it is important to read subsection (6) in the context of subsections (3) and (5), which make it clear that the Upper Tribunal is not entitled to substitute its own view as to whether or not it is appropriate for an individual to be included in a barred list for that of the Respondent. In those circumstances, it seems to us that the Upper Tribunal is entitled to remove a person from a barred list under subsection (6)(a) only either if the Respondent accepts that that is the decision that should be made in the light of the error of fact or law found by the Upper Tribunal or if the Upper Tribunal is satisfied that that is the only decision that the Respondent could lawfully make if the case were remitted to it.
9. The Appellant’s grounds (b), (c) and (f) identified in paragraph 3 above are arguments that any decision taken to include him in a barred list would be unlawful, but we are not satisfied that any of those grounds is seriously arguable.
10. It is true that, for the purposes of applying for a review under paragraph 18 of Schedule 3, the minimum barred period prescribed under regulation 9 of the Safeguarding Vulnerable Groups Act 2006 (Barring Procedure) Regulations 2008 (SI 2008/474) for a person under the age of 25 is shorter than that of for a person who has attained that age. However, that unequal treatment was not held unlawful in R.(Royal College of Nursing) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin), where Wyn Williams J said –
“118. If a minimum barring period is justified, and no one has suggested that it is not, then, in my judgment its length must be proportionate to and commensurate with the mischief which it aims to defeat. Further, given that there is no formal challenge or even criticism of the barring periods applicable to persons under the age of 25 it seems to me to be clear that the issue is, in reality, whether a barring period as long as 10 years is justifiable.
119. I have a paucity of evidence to deal with this central issue. Mr Green's statements do not deal with it. Ms Hunter's statement does not deal with it and the explanatory memoranda which accompany the Regulations contain very little information which is relevant to the point now under consideration. I do, of course, have the responses to consultation.
120. I also face the difficulty that I have been provided with no information about the circumstances which have led the Interested Party to include persons on barred lists on...
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