R (H & L) v A City Council
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Langan QC |
| Judgment Date | 12 March 2010 |
| Neutral Citation | [2010] EWHC 466 (Admin) |
| Docket Number | Case No:CO/13078/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 March 2010 |
[2010] EWHC 466 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT SITTING AT LEEDS
Leeds Combined Court Centre
The Court House
1 Oxford Row
Leeds LS1 3BG
Before : His Honour Judge Langan QC
Case No:CO/13078/2009
Mr Stephen Cragg (instructed by Howells, Solicitors) for the Claimants
Mr Timothy Pitt-Payne (instructed by Legal Services of A Council) for the Defendant
The interested party did not take part in the hearing
Hearing date: 12 February 2010
Crown copyright©
Introduction
Because of the subject-matter of these proceedings, the claimants and the two local authorities who have been concerned with them will be referred to without reference to their respective surnames or official designations. I call them H, L, ACC and BCC.
H is a convicted sex offender. L is his partner. She has no convictions. Both are disabled and have been active in the disability movement. They live in the area for which ACC is the local authority with functions relating to the safeguarding of children. BCC, as will appear later in this judgment, is the local authority for another area, and plays no more than a peripheral role in the story. Both H and L employ personal assistants, and receive from ACC direct payments to fund the wages of these carers.
In this litigation, H and L challenge three decisions or groups of decisions made by ACC. These are: (1) decisions made in the summer of 2009 to notify organisations with which H and L are connected; (2) a decision as to the policy to be followed in the future regarding disclosure to organisations and to personal assistants, such decision being contained in a letter dated 21 October 2009 ('the decision letter'); and (3) a decision to pay the wages of the personal assistants through a managed pay-roll account, such decision also being contained in the decision letter. These decisions are challenged on different grounds. Decisions (1) and (2) are attacked as being both unlawful at common law and as constituting an undue interference with the right of H and L to respect for their private life under article 8 of the European Convention on Human Rights. Decision (3) is challenged on the same grounds, and is additionally said to be said to be contrary to the right of H and L to receive direct payments under the relevant legislation.
These proceedings were commenced on 5 November 2009. Permission to proceed with judicial review was granted by His Honour Judge Behrens on 8 December 2010. It has been agreed that any issue as to damages for breach of the claimants' article 8 rights should, if such breach is established, be left to a future hearing. My understanding is that no point as to the time limit for applying for judicial review has been taken with regard to the disclosures made in the summer of 2009. The challenges made to the decision letter have plainly been made well within the time limit.
H and L were represented before me by Mr Stephen Cragg. ACC was represented by Mr Timothy Pitt-Payne. I am grateful to them both for their helpful written and oral submissions. BCC has not adopted an active role in the proceedings.
Narrative
H and L are both very severely disabled. They have been in a relationship since 1992. It is not necessary for the purposes of this judgment, and would be undesirable having regard to the need for anonymity, to set out particulars of their respective problems. Both H and L have been assessed as having substantial needs under the Fair Access to Care Services eligibility framework for adult social care. Both receive weekly direct payments, which they use to employ personal assistants. H has two male personal assistants, both of whom have been in his employment for several years: neither of these carers has children. L has a female personal assistant who is at present on maternity leave: the woman who is replacing that personal assistant over the leave period does not have children.
H and L have for many years been active in the disability movement. I think that it can fairly be said that their involvement has had a twofold nature, being both philanthropic and economic. It is philanthropic in that they, or at any rate H, belong or have belonged to a number of representative or consultative bodies dealing with disability issues. It is economic, in that H and L run a company which has sought and obtained contracts from universities and other public bodies.
In 1993 H was convicted of indecent assault on a seven-year old boy. The information which has been provided by ACC, and which is not disputed by H and L, is that the boy was blind, that he was a member of a family which H had befriended, and that the offence was a penetrative one which involved oral sex. H denied the charge, but was found guilty and was sentenced to two years imprisonment. He has maintained to this day that he was the victim of a miscarriage of justice, and L concurs in this view.
The fact of H's conviction came to the attention of ACC (1) in 1994, when HM Prison Service notified ACC that H was going to live with his sister in the city of A after his release from prison; (2) in 2001, when another local authority informed ACC that H had applied for a post in the Social Services Department of that other authority and that he had given an address in A; and (3) in 2008, when a an officer in the Sensory Impairment Team of ACC notified ACC's Safeguarding Children Service that there was a warning entered against H's name in ACC's electronic social care record. It seems that no action was taken on any of these occasions, apart from the correction of an erroneous identification number assigned to H in the computer record.
B is a city some 200 miles from A. On 25 March 2009 a senior officer of BCC wrote to the Director of Children and Young People's Service at ACC, with the following information. (1) H had been convicted of a sexual assault on a child in 1993 and was facing trial in June 2009 for a similar offence. (2) H was employed as chief executive of a disability charity in B. (3) He was commuting from A to B and spent two days a week in B, working for the charity on one further day a week from his home back in A. (4) The charity had employed H with full knowledge of his conviction and, although they were aware of his forthcoming trial, they had refused to suspend him. (5) BCC was making a barring referral to the Independent Safeguarding Authority and a referral to the Charity Commission.
On or shortly before 16 April 2009 H was suspended by the Charity Commission from his position with the charity in B.
X is a council officer at ACC and was responsible for gathering information about H following the receipt of the letter from BCC and for co-ordinating decision-making within a multi-disciplinary framework. X convened a strategy meeting in A for 17 April 2009. Before that meeting took place, X discovered that H had a further conviction, for failing to disclose his 1993 conviction when applying for a job.
The purpose of the strategy meeting was to develop a better understanding of H's activities in A and to develop an action plan for further investigation. The meeting was attended by representatives of different departments within ACC, the National Health Service, the police, and one of the local universities. It became evident at the meeting that H was a member of a number of organisations and committees concerned with disabled people, that he ran his own company with L, and that he received social work students on placement from the university. Bearing in mind the need to frame this judgment in anonymous terms, I do not propose to give further details of H's work, save to say that one connection which gave particular concern was with a body for failed asylum-seekers with disabilities. The recommendation given by X to the meeting was that H be asked to stand down from all bodies that “he is involved with immediately given that his level of denial of his serious offence makes him a highly untrustworthy individual. Should he refuse to stand down then legal advice to be sought and consideration be given to seeking an injunction.” X “highlighted the moral legal position and the obligation to fulfil a duty to safeguard children and the sharing of information was justified in protecting those children.”
Another strategy meeting was arranged for 15 June 2009. In the course of preparing for that meeting, ACC communicated, by way of short telephone calls, with some nine organisations with which H was believed to have connections. No notes of the telephone calls were kept, but it appears from the evidence of X that the purpose of each call was to clarify H's role within the relevant organisation and to alert the organisation to the fact of the 1993 conviction and to “the potential for future convictions.”
In the meantime, on 20 May 2009, there was a meeting between representatives of ACC, H, L and the solicitor acting for H and L at the time. The purpose of this meeting, from the point of view of ACC, was to highlight the concerns which ACC had in relation to the risk H was regarded as presenting to children. The ACC representatives, on the basis of information received from the body for disabled former asylum-seekers, were not satisfied that H had no contact with the children of clients, notwithstanding assurances to the contrary given by H. Much of the meeting appears to have been taken up with discussions about the personal assistants employed by H and L, the need (as perceived by ACC) for ACC to be...
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