Mr K D Scully v Northamptonshire County Council: 3314564/2020

EMPLOYMENT TRIBUNALS

Case No 3314564/2020

Between

Mr K D ScullyClaimant

Northamptonshire County CouncilRespondent

Before

Employment Judge Tynan

In person for claimant

Ms Z Wroe (instructed by Solicitor) for respondent

Date 7 March 2022

JUDGMENT

The Claimant’s complaints against the Respondent are struck out on the basis that they have no reasonable prospect of success. 7 March 2022 JUDGMENT having been sent to the parties on 13 March 2022 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunal Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]The Claimant’s claim was presented to the Employment Tribunals on 2 December 2020 following Acas Early Conciliation on 20 November 2020. The Claimant claims that he was discriminated against on the grounds of race and disability, and that he is owed arrears of pay and other payments.

[2]The matter came before Employment Judge Warren on 30 July 2021 when he directed that the matter should be listed for an Open Preliminary Hearing in order to determine the identity of the Claimant’s employer, including whether West Northamptonshire Council should be substituted as a Respondent; Northamptonshire County Council having been replaced by two unified authorities. The latter question only arises if I conclude that the Claimant was employed by Northamptonshire County Council such that its liabilities may have transferred to another Authority. For the reasons that follow, my decision is that he was not employed by the Respondent.

[3]I heard evidence from the Claimant who had made a 49 paragraph written statement in support of his claim to have been employed by the Respondent. His mother, Mrs Vera Scully, also gave evidence to the Tribunal. Her statement runs to 51 paragraphs. The Claim centres upon the arrangements for the care of the Claimant’s brother. Given that these written reasons will be a publicly available document, I have not thought it necessary to identify the Claimant’s brother by name. I shall refer to him hereafter as ‘S’.

[4]On behalf of the Respondent I heard evidence from Christopher Hodgson. Mr Hodgson is employed as a Personal Budget Support Service (PBSS) Manager. Mr Hodgson previously worked as a manager at the Northamptonshire Centre for Independent Living (CIL), a charity whose activities were effectively assumed by the Respondent in 2017. Mr Hodgson provided a comprehensive explanation of the direct payment scheme pursuant to which individuals who may be in need of care and support, and their families, have greater autonomy in terms of deciding how their needs should be met, as well as control over the available funds in this regard. Mr Hodgson additionally gave evidence about CIL and PBSS’ interactions with the Claimant and his family, including how S’s package of care and support was procured from 2013 onwards. He was an articulate and credible witness and I accept his evidence without reservation. The Claimant did not in fact challenge his evidence in any material respects.

[5]The issue I have to determine is who the Claimant was employed by. As the Claimant observed in his submissions, the Respondent did not dispute that he is employed to care for S. Accordingly, although I was referred to the long established principles in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance

[1968] 2QB497

, it is not in fact necessary for me to consider Mackenna J’s often cited dicta in any significant detail. The Ready Mixed Concrete case concerned the issue of whether a person is employed or in business on their own account. Mackenna J identified three conditions that would need to be fulfilled in order for there to be a contract of service as opposed to a contract for services: firstly, the ‘servant’, as he referred to it, would have to provide work and skill in the performance of services for the master; secondly, in the performance of those services, he would be subject to the master’s control to a sufficient degree to make the relationship one of master and servant; and, finally, the other provisions of the contract should be consistent with it being a contract of service. In these proceedings, the Respondent has not sought to suggest that the Claimant was in business on his own account.

[6]In addition to the witness statements and evidence, there was a Preliminary Hearing Bundle running to 606 pages, though in the course of the Hearing I was referred to only a limited number of documents in the Bundle.

[7]At pages 86 – 90 of the Bundle is a Direct Payments Individual Budgets Payroll Service Agreement for CIL holding account users. The Agreement was put in place when S assumed control of his budget and the family began to receive direct payments to fund his care and support. The Agreement was signed by S and entered into between the parties on or around 30 April 2013. In my judgement, given his complex needs, there must be significant doubt as to S’s legal capacity to enter into any such agreement. Arrangements of this type often come to the Tribunals’ attention; in my experience the individuals concerned, and their families, frequently fail to fully appreciate, or lack the requisite experience (or even lack essential capacity) to be able to comprehend, the legal implications of having a personal budget. The family’s focus is inevitably on securing the best possible package of care and support for a family member, in circumstances where they believe they have a better understanding of that person’s needs than the Local Authority. That focus, and their understandable desire to retain greater control over decisions that touch upon a loved one’s quality of life, comes at the potential cost of unanticipated employment obligations and liabilities. That is particularly pertinent here where the Claimant took on significant responsibilities in relation to his brother’s care and support. I find that little or no thought was given by the Claimant, Mrs Scully or S to the employment law implications of the arrangements put in place from 2013.

[8]In the course of her evidence Mrs Scully was asked about a number of emails at pages 96 – 100 of the Bundle. They date from May and June 2013 during the early weeks that the directly managed budget was in place. The emails evidence that Mrs Scully took responsibility for identifying potential carers for S and that she retained control over any decisions as to who should be engaged. She addresses the matter in paragraph 8 of her witness statement. She describes an unhappy experience with S’s first carer who stole money from him, and refers to problems and challenges with other carers, including a carer who did not always turn up. I find that these issues and any resulting decisions were taken by Mrs Scully, rather than by the Respondent. For example, there is evidence at page 114 of the Bundle that Mrs Scully was directly involved in the decision to dismiss a carer.

[9]At paragraph 11 of her witness statement, Mrs Scully refers to CIL having become involved as she did not want the burden of organising payroll, contracts, pension payments and the like. However, the fact that payroll and related administrative tasks were handled by a third party does not itself answer the question of who the employer was. The Claimant does not assert that he was employed by CIL. What the arrangements highlight is a fundamental difficulty in the Claimant’s case, because if CIL was responsible for such matters at a time when it was a discrete legal entity operating independently of the Respondent, then it is unclear to me what other additional facts are relied upon by the Claimant to support the existence of an employment relationship between himself and the Respondent. Other than the family’s interactions with S’s designated Social Worker, which I find were in pursuance of the Respondent’s statutory adult social care responsibilities, I have been unable to identify any other interactions between the Claimant and the Respondent, or any evidence, in the period 2013 to 2017 that might support the existence of an employment relationship between them. Over a period of approximately four years, there is nothing to indicate that the Respondent exercised any form of control over the Claimant or which evidences any mutuality of obligation. In the course of his submissions I asked the Claimant when he considered his employment relationship with the Respondent to have commenced. The only uncertainty in his mind was whether this was April, May or June 2013. However, the entirety of the interactions during that period, and in the years that followed, that underpin his claim to have been employed by the Respondent, were with CIL. If anything, on the Claimant’s rationale, they support an employment relationship with CIL, rather than with the Respondent.

[10]In paragraph 15 of Mrs Scully’s witness statement, she refers to problems and difficulties with holiday cover and that there was limited support available to the family. When asked about these issues, the Claimant’s feelings of frustration and exhaustion came to the fore. One could not fail to be moved by what he said about the pressures he was under and the weight of responsibility he felt to ensure that his brother continued to be cared for and supported to live at home, so that the family might stay together. Whilst he has shouldered a significant burden over a number of years, it reinforces that the family took direct responsibility for these matters rather than the Respondent.

[11]The same point essentially arises from paragraph 17 of Mrs Scully’s witness statement. Although she was provided with a directory by the Respondent in order to source potential carers, it was she who ultimately took responsibility for identifying agency staff who might provide respite or holiday cover, to enable the Claimant to have a break and prevent him from buckling under the weight of his responsibilities. In paragraph 25 of her witness statement, Mrs Scully refers to an individual called David who provided some initial support and then continued to cover some extra hours. She refers to having received several calls from David’s agency, Connecting Hands, to say that they had not been paid for his work. The fact that the agency considered this to be a matter for Mrs Scully’s attention again evidences that the arrangements were perceived by all concerned to be a matter under the family’s control rather than involving the Respondent.

[12]Turning then to the Claimant’s evidence in this matter, he accepts that there is, and has been, no written contract between himself and the Respondent, and no job description. The only documented contract, albeit for the provision of respite care before the Claimant became his brother’s full-time carer, is stated to be between the Claimant and S (pages 70 – 80 of the Bundle). Whilst, as I say, there must be significant doubt as to S’s capacity, the Claimant was evidently content in principal to enter into a contractual relationship with his brother. In his evidence the Claimant said of the contract, “I signed intending to become an employee” Given that his brother was named as the other party, I am clear that the Claimant did not sign the contract with the intention or understanding that he would thereby become an employee of the Respondent.

[13]I find that the effect of what happened in 2013, whether it was April, May or June 2013, was that the original respite agreement was varied but otherwise that the agreement has continued to provide the essential framework under which the Claimant has provided care to his brother since 2013.

[14]In the course of his evidence, the Claimant confirmed that no training had ever been arranged or delivered through the Respondent. Particularly in the field of adult social care, where an understanding of safeguarding issues and the maintainance of professional standards is essential, an experienced employer will take responsibility for the ongoing training and development of its staff. The Respondent evidently did not consider itself under any duty to ensure the Claimant’s continuing professional development. Nor were there any appraisals or other evidence of the Claimant’s conduct and performance being managed by the Respondent; nothing to indicate the direction and control one might otherwise typically expect of an employment relationship. There was no oversight by the Respondent in terms of what hours the Claimant worked and accordingly how much he should be paid. Instead, any pay issues were handled by CIL, I find, as an outsourced provider of services to either the Claimant’s brother or mother.

[15]There are various copy pay slips in the Bundle, including at page 286. The named employer is S. None identify the Respondent as the employer, something the Claimant might be expected to have challenged at any time over a period of seven years if he believed that he was in fact employed by the Respondent.

[16]An email at page 293 of the Bundle confirms that PBSS, which by 2017 had assumed CIL’s responsibilities, gave advice to Mrs Scully to implement a redundancy in relation to the Claimant. However, Mrs Scully did not follow that advice. She said in her evidence that she felt uncomfortable about it. If, as the Claimant contends, the Respondent was his employer it is unclear why this task might have been delegated to Mrs Scully, or why she considered herself at liberty to disregard the advice from PBSS and to act as she saw fit. In the face of what was either her opposition to the Claimant’s redundancy or her inaction in the matter, I conclude that the Respondent took no action in the matter because it considered that any decision in relation to the Claimant’s continued employment rested with Mrs Scully, either as the Claimant’s employer or acting on behalf of S, the employer.

[17]Similarly, whilst the Claimant said that the Respondent was against him being furloughed in 2020, they were powerless to prevent this from being agreed between the Claimant and Mrs Scully. That is the clearest evidence to me that the Respondent lacked essential control as an employer, the Claimant believing himself free to agree the issue with Mrs Scully either as his employer or as the authorised agent or representative of S, his employer. I do not accept the Claimant’s evidence that the furlough arrangements were in any way suggested by the Respondent. To the contrary, all the evidence in the Bundle confirms that the Respondent was not supportive of the Claimant being furloughed, did not encourage it and had not identified it as an appropriate way forward. The decision to furlough the Claimant may have been in response to PBSS’s advice to consider making the Claimant redundant, but it cannot sensibly be said to have been suggested by the Respondent.

[18]The other relevant evidence in this case, at page 317 of the Hearing Bundle, is an email from Mrs Scully to Claire West at Northamptonshire Adult Social Services, in which she refers to her unease around a draft redundancy letter that had been supplied for her use, specifically that it was not expressed in her own words. Towards the end of the first paragraph of her email, she refers to the Claimant being a member of a protected class and a member of a Union and that she was concerned therefore that the redundancy process should be done correctly. I find that she was concerned for both her own position and S’s. Her comments beg the question why she might have been concerned about how the process was handled if she was not the Claimant’s employer or acting as S’s agent in the matter. If neither she nor S had employed the Claimant, she would have had no particular vested interest in the matter, except perhaps a concern as the Claimant’s mother to ensure he was treated correctly. What the email evidences to me is that Mrs Scully was acting autonomously in the matter, that she regarded any decision as one for the family to take and, in those circumstances, that she was concerned to ensure that the situation was handled in accordance with the Claimant’s statutory employment rights. Neither she nor the Respondent considered that the Respondent had a right to be consulted in the matter.

[19]In a further email with Claire West at page 329 of the Bundle Mrs Scully wrote, “I informed you yesterday that I am proceeding with making the employee redundant” Again, these comments confirm that the decision rested within the family. It was not suggested by Mrs Scully that she was proceeding on behalf of the Respondent. Nor did she protest that she was expected to deal with a matter that was in fact the Respondent’s responsibility as the Claimant’s employer.

[20]At page 357 of the Bundle is an email from Mrs Scully to Andy Cheatham, an Employment Law Consultant at Peninsular, in which they debated the most appropriate way forward. Mrs Scully asked Mr Cheatham to look over the terms of what she and the Claimant were trying to agree to make sure they were reasonable from an employer’s perspective. In her evidence at Tribunal Mrs Scully sought to distance herself from that comment, stating that the employer’s perspective was not her perspective. Again, I ask myself why Mrs Scully took an interest in the matter if in fact it was between the Claimant and the Respondent as his employer.

[21]In his evidence, the Claimant sought to suggest that he had been instructed in the course of his employment by the Respondent. However, it amounted to no more than a general assertion on his part since he did not identify when he had been instructed by the Respondent, what those instructions were, or who had issued them. He went on to say that there were times when instructions came through CIL rather than the Respondent. He also acknowledged there were times when S did not have an allocated Social Worker and accordingly that there were periods when there was no contact with the Respondent.

[22]In conclusion, the available evidence does not support that there was any form of employment relationship between the Claimant and the Respondent at any time in the period 2013 to 2010. Instead, all the evidence points to the Claimant having been employed by S or by Mrs Scully acting on his behalf.

[23]I invited the Claimant to indicate whether he wished to apply to amend his Claim to name the S or Mrs Scully as the Respondent to his Claim, but there was no such application by him. In the circumstances and on the basis that he was not employed by the Respondent (or any successor organisation) the Claim is struck out on the grounds that it has no reasonable prospect of success. 9 May 2022 JUDGMENT on RECONSIDERATION APPLICATION

[1]The Tribunal considers that there is no reasonable prospect of the original decision being varied or revoked.

[2]The Claimant’s reconsideration application is refused.

[1]The Tribunal gave a Judgment on 28 February 2022 striking out the Claimant’s complaints against the Respondent on the grounds that they had no reasonable prospects of success. Written reasons for that Judgment were provided to the parties on 19 May 2022 in response to a request being made by the Claimant.

[2]Rule 70 of the Employment Tribunal Rules of Procedure 2013 empowers the Tribunal, either on its own initiative or on the application of a party, to reconsider any Judgment where it is necessary in the interests of justice to do so. Rule 71 requires that any application for reconsideration must be presented in writing within 14 days of the date on which the written record, or other written communication, of the original decision is sent to the parties, or within 14 days of the date that the written reasons are sent (if later). The Claimant’s application was first submitted more than five months out of time. Most recently he has sought to supplement his already amended application with a further eleven page written submission.

[3]The starting point clearly has to be the decision I reached at the hearing on 28 February 2022. I have re-read the Judgment and written reasons. I consider that I set out my findings and conclusions in detail. Should these matters be examined on appeal, it will be for the Employment Appeal Tribunal to say whether those reasons and my decision can stand. Reconsideration

[4]In Outasight VB Ltd. v Brown UK

EAT/0253/14

, the Employment Appeal Tribunal considered the Tribunals’ powers under Rule 70 of the Employment Tribunal Rules of Procedure 2013. At paragraphs 27 – 38 of her Judgment, Her Honour Judge Eady QC, as she then was, set out the legal principles which govern reconsideration applications, and observed, “The interests of justice have thus long allowed for broad discretion, albeit one that must be exercised judicially, which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.”

[5]In Outasight, the Employment Appeal Tribunal was referred to the EAT’s Judgment in Redding v EMI Leisure Ltd.

EAT/262/81

in which the EAT had observed: “…When you boil down what is said on [the Claimant’s] behalf, it really comes to this: that she did not do herself justice at the hearing so justice requires that there should be a second hearing so that she may. Now, “justice” means justice to both parties. It is not said, and, as we see, cannot be said that any conduct of the case by the employers here caused [the Claimant] not to do herself justice. It was, we are afraid, her own experience in the situation…”

[6]If the Claimant feels that he did not do himself justice in the matter on 28 February 2022, in my judgment there is no reasonable prospect of him establishing any conduct on the part of the Respondent that may have caused or materially contributed to that. He asserts that the Respondent knowingly failed to provide a truthful account regarding their knowledge of S’s capacity and that Mr Hodgson lied to the Tribunal in that matter (the Claimant says he “knowingly gave false evidence”). Paragraph 5 of my written reasons confirms that I found Mr Hodgson to be an articulate and credible witness and, further, that the Claimant did not challenge his evidence in any material respects. In the course of his oral evidence, Mr Hodgson referred the Tribunal to the provisions of sections 31 and 32 of the Care Act 2014 which respectively deal with direct payment arrangements for adults with capacity and those who lack capacity. The fact that an adult lacks capacity does not preclude a direct payment arrangement. Mr Hodgson did not state or infer in his evidence to the Tribunal that S had capacity. His unchallenged evidence was that any decision regarding S’s capacity had been taken by the Council’s adult social care team and that this was not a matter for CIL or PSBB.

[7]It is clear from paragraph 19 of Mr Hodgson’s witness statement that following such an assessment of S’s capacity it was identified that direct payments were appropriate, provided S was supported by his mother and she operated as his representative. This is also confirmed in the third and fourth pages of the letter from West Northamptonshire Council dated 1 August 2022 that the Claimant seeks to rely upon in his application for reconsideration. It is relevant in this regard that at paragraph 25 of his witness statement, Mr Hodgson referred to S’s mother as his “authorised person”, this being a defined term in section 32 of the Care Act 2014 which deals with direct payment arrangements in relation to those who lack capacity. Whilst Mr Hodgson was not responsible for assessing capacity, the whole tenor of his evidence was that he understood S to lack capacity.

[8]In my judgement, not only is there no reasonable prospect of the Claimant establishing dishonesty, fraud or concealment, as he variously asserts, but there is also no reasonable prospect of him establishing that the Tribunal was misled by Mr Hodgson. At paragraph 7 of my written reasons I specifically refer to S’s complex needs and to significant doubts regarding his capacity. I should add that it was not necessary for me to determine whether the Claimant was employed by his mother, Vera Scully, either in her personal capacity or as S’s representative or authorised person, since the Claimant was clear that he did not wish to amend his Claim to join any other party as a Respondent.

[9]Justice has to be done to both parties. Litigation has to be kept within sensible bounds. It is not necessary in the interests of justice that the Claimant should have a ‘second bite at the cherry’. In any event, neither the correspondence relied upon by the Claimant nor his detailed written submissions provide arguable grounds for revoking the decision to strike out his complaints against the Respondent following my findings that he was not employed by it. Ultimately, S’s capacity or lack of capacity did not alter that conclusion.

[10]In all the circumstances the application for reconsideration is refused.

[1]The Tribunal gave a Judgment on 28 February 2022 striking out the Claimant’s complaints against the Respondent on the grounds that they had no reasonable prospect of success (“the Judgment”). Written reasons for the Judgment were provided to the parties on 19 May 2022 in response to a request being made by the Claimant.

[2]On 23 November 2022, the Claimant applied for reconsideration of the Judgment. He submitted an amended application on 5 December 2022 and further supplemented it on 25 January 2023. The application was refused for the reasons given in a Judgment sent to the parties on 9 February 2023 (“the First Reconsideration Judgment”).

[3]On 29 August 2023 the Claimant submitted a second application for reconsideration of the Judgment “based on fresh evidence”. He did so following enquiries of the Office of the Public Guardian (“OPG”). Unfortunately, the application was only referred to me on 2 February 2024 and, even then, the documents submitted by the Claimant in support of his application were only forwarded to me 22 February 2023. The fresh evidence upon which the Claimant purports to rely is said by him to relate to claims by the Respondent that his mother, Vera Scully acted as S’s ‘representative’ for the purposes of direct payments under s.57 of the Health and Social Care Act 2001, and was an ‘authorised person’ for the purposes of s.32 of the Care Act 2014.

[4]Regulation 5 of the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009 provides that for the purposes of s.57 of the 2001 Act, a person is prescribed as a ‘representative’ in relation to another person if they are—(a) a deputy appointed for that other person by the Court of Protection under section 16(2)(b) of the Mental Capacity Act 2005(1); or

(b) a donee of a lasting power of attorney within the meaning of section 9 of the Mental Capacity Act 2005 created by that other person.

[5]The Claimant’s enquiries of the OPG were with a view to securing confirmation from it that Mrs Scully was neither a court appointed deputy for any matters concerning S at any time nor a donee of a lasting power of attorney from him, meaning that she could not have been S’s ‘representative’ as so defined. I pause to observe that the Claimant and Mrs Scully might simply have included this information in their witness statements for the hearing on 28 February 2022 if they felt I should be aware that this was the case.

[6]Although there are seemingly four references in the Respondent’s Grounds of Resistance to Mrs Scully being S’s ‘representative’, the Respondent did not refer to the 2001 Act in resisting the Claimant’s claim. Instead, the Respondent identified the relevant legislative context for direct payments as being the Care Act 2014, s.117(2C) of the Mental Health Act 1983, and the Care and Support (Direct Payments) Regulations 2014. S.32 of the Care Act 2014 uses the term ‘authorised person’ to describe those who handle direct payments on behalf of individuals who lack capacity. Mrs Scully is referred to as S’s ‘authorised person’ in paragraphs 23 and 30 of the Grounds of Resistance.

[7]Having confirmed that Mrs Scully was not S’s ‘representative’ within the meaning of the 2001 Act and associated Regulations, the Claimant goes on to say: “This also necessarily means a lack of an authorised person under s.32(4)(a) of the Care Act 2014. This is in clear contradiction to claims made in the Respondents ET3 and statements made in the written testimony of Mr Christopher Hodgson.” As I shall come back to, neither the Respondent nor Mr Hodgson claimed or stated that Mrs Scully’s status as an ‘authorised person’ derived specifically under s.32(4)(a).

[8]The Claimant asserts that his delay in pursuing his second reconsideration application is attributable to fraud, concealment or mistake. Indeed, at paragraph 32 of his application he suggests that the Respondent’s conduct of the proceedings has: “… raised a risk of contempt and perjury on the part of Mr Hodgson and others involved with the respondents, which are likely to include other officers of the respondents within the respondents’ adult social services departments.

[9]I consider the Claimant’s submissions in this regard to be misconceived. Firstly, during the hearing on 28 February 2022 neither party referred me to the provisions of s.57 of the 2001 Act or to the 2009 Regulations. At no point during the hearing did Mr Hodgson or the Respondent suggest that Mrs Scully was S’s court appointed deputy or the donee of a lasting power of attorney. Had I been referred to the provisions of s.57 of the 2001 Act, I can understand why I might have inferred from the various references to Mrs Scully being S’s ‘representative’, that she was either a court appointed deputy or that she held a lasting power of attorney. However, having not been alerted to the Act or the 2009 Regulations, I was not misled as to her status, whether consciously or otherwise. Secondly, Mr Hodgson did not state or infer, as the Claimant seems to assert, that Mrs Scully’s status as an ‘authorised person’ derived under s.32(4)(a) of the Care Act 2014. An ‘authorised person’ for the purposes of s.32(4) of the Act is not limited to a person who is authorised under the Mental Capacity Act 2005 to make decisions about an adult’s needs for care and support. Instead, an ‘authorised person’ extends to a wider group of individuals, including someone who the Local Authority considers to be a suitable person to whom to make direct payments (see s.32(4)(c) of the Act). Once again, I was not misled in the matter.

[10]My findings on 28 February 2022 that, with effect from 2013, Mrs Scully had taken responsibility for identifying potential carers for S and that she had retained control over any decisions as to who should be engaged in his care, including identifying agency staff to provide respite or holiday cover, as well as my reference to the Claimant having agreed furlough arrangements directly with Mrs Scully were not founded on Mrs Scully being S’s court appointed deputy or holding a lasting power of attorney for him; they were not something I considered. There is no question of me having been misled by the Respondent in reaching these findings, whether deliberately, by omission or otherwise.

[11]Furthermore, and in any event, my reference to the Care Act 2014 in the First Reconsideration Judgment was solely in the context that the Claimant had asserted in his first reconsideration application that Mr Hodgson had stated or inferred in his evidence to the Tribunal, on 28 February 2022, that S had capacity. For the reasons set out in paragraph 6 of the Reasons section of the First Reconsideration Judgment, I was satisfied that Mr Hodgson had not done so. On the contrary, he evidently understood S to have been assessed by the Respondent as lacking capacity. His understanding in that regard was reinforced by his reference to the Care Act 2014, and his evident clarity of understanding that s.32 deals with direct payments in the case of adults without capacity.

[12]For completeness, I should add that if the Claimant believes the Respondent’s references to Mrs Scully as S’s ‘representative’ had the potential to mislead, it is something he might have questioned Mr Hodgson about on 28 February 2022. As I noted in the Judgment and subsequently in the First Reconsideration Judgment, the Claimant did not challenge Mr Hodgson’s evidence in any material respects. If he believed Mr Hodgson to be saying that Mrs Scully was a ‘representative’ within the meaning in s.57 of the 2001 Act, and that I was potentially being misled in this regard, he might have explored the issue further with Mr Hodgson. As I observed in the First Reconsideration Judgment, and observe again now, if the Claimant feels that he did not do himself justice in the matter on 28 February 2022, there is no reasonable prospect of him establishing any conduct on the part of the Respondent that may have caused or contributed to that. As I have noted already, if he or Mrs Scully thought it important to draw to the Tribunal’s attention that she was neither a court appointed deputy or the done of a lasting power of attorney, they might simply have said so in their witness statements or, indeed, even sought the Respondent’s agreement on the point. They were aware once the Respondent filed its Grounds of Resistance early in 2021 that Mrs Scully was being referred to as S’s ‘representative’ and ‘authorised person’, and accordingly had every reasonable opportunity to address any potential misunderstanding that might result from the Respondent’s use of those terms. Be that as it may, for the reasons set out above, I was not misled in the matter. I did not proceed on 28 February 2022 on the basis or understanding that Mrs Scully was a court appointed deputy or that she held a lasting power of attorney in respect of S.

[13]Finally, the Claimant’s submissions at paragraph 37 of his second reconsideration application plainly amount to an attempt by him to have a second bite of the cherry by advancing arguments that he previously had every opportunity to put forward. It is not in the interests of justice that he should be afforded a further opportunity to argue the issues again. There is, as the Employment Appeal Tribunal observed in Outasight VB Limited v Brown UKEAT0253/14, the Respondent’s interests to consider in the matter as well as the public interest that there should, as far as possible, be finality of litigation.

[14]In all the circumstances the Claimant’s application dated 29 August 2023 for reconsideration of the Judgment is refused.