Disclosure and Barring Service v Harvey [2013] EWCA Civ 180

Case No C3/2012/2228[2013] EWCA Civ 180
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Upper Tribunal (AAC)
His Honour Judge David Pearl
[2012] UKUT 91 (AAC)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/03/2013
Before
LORD JUSTICE MAURICE KAY,VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISIONLORD JUSTICE JACKSONLORD JUSTICE TREACY
Between
Disclosure and Barring ServiceAppellantPeter HarveyRespondent
Ms Galina Ward (instructed by Treasury Solicitors) for AppellantMr Ian Wise QC & Mr Stephen Broach (instructed by Thompsons Solicitors) for RespondentHearing Hearing dates: 13th February 2013
Judgment

Introduction

[1]This is an appeal by the Independent Safeguarding Authority (“The ISA”) from the decision of the Upper Tribunal to allow the Respondent’s appeal against his inclusion on the Adults’ Barred List maintained under Section 2 of the Safeguarding Vulnerable Groups Act 2006 (“the 2006 Act”).

Background and The ISA’s Decision

[2]Permission to appeal was granted by the Upper Tribunal. By its decision, the Upper Tribunal concluded that the ISA had made a mistake on a point of law in that its decision to include Mr Harvey on the Adults’ Barred List was disproportionate. Accordingly, the Upper Tribunal directed the ISA to remove Mr Harvey’s name from the list.[3]The issues arising before us centred on whether the Upper Tribunal erred in law in its approach to the question of proportionality; and secondly, whether the Upper Tribunal’s conclusion that the barring decision was disproportionate was one which was lawfully open to it on the evidence.[4]The background to the case is a sad one. Mr Harvey was a teacher who carried out a very serious attack on a fourteen year old male pupil. He dragged the boy out of a classroom in which he had been teaching into another room where he picked up a dumbbell and hit the boy around the head several times whilst shouting “die, die”. The pupil sustained serious head injuries which were life threatening, although he ultimately made a full recovery.[5]Mr Harvey was in due course charged with attempted murder. After a trial at the Crown Court he was acquitted of that offence. He was also acquitted of causing grievous bodily harm with intent contrary to Section 18 of the Offences Against the Person Act 1861, but he had tendered a guilty plea to inflicting grievous bodily harm at an early stage of those proceedings. In passing sentence the judge referred to significant mitigation in the case, including a depressive illness, difficult personal and family circumstances at the relevant time, and a previously unblemished record of teaching over nearly twenty years.[6]By the time of sentence Mr Harvey had spent about eight months on remand in custody. The judge took account of this in imposing a Community Order for two years with a supervision requirement for the whole of that period. The judge did not make any order disqualifying Mr Harvey from working with children, saying he would leave that to professional regulatory bodies.[7]In due course Mr Harvey was referred to the ISA for consideration of whether he should be included in either the children’s or adults’ barred lists under the 2006 Act. He made representations that when well he did not pose a threat to children provided he operated within a supervised environment. In addition he submitted that there was no basis for concluding that he posed any kind of threat to vulnerable adults.[8]Notwithstanding this the ISA concluded that Mr Harvey should be included in both lists. His appeal to the Upper Tribunal was only against his inclusion in the Adults’ Barred List. The ISA’s reasoning for including him in that list was that:
“It is important to consider if [Peter Harvey] was to obtain employment with vulnerable adults with learning difficulties or mental health issues, they could exhibit similar challenging behavioural traits as children in certain situations. There is a potential significant risk that if he was placed [in] a similarly difficult situation in a vulnerable adult setting that he could react in a similar manner with potential fatal consequences. Therefore it is deemed appropriate to include [Peter Harvey]’s name on the Adults Barred List.”
[9]His appeal to the Upper Tribunal was on the ground that the decision was disproportionate. Shortly before the appeal was to be heard, a medical report from a consultant psychiatrist, Dr Medley, dated 3rd October 2011 was produced. The hearing was adjourned and the ISA reviewed this new material. It decided to maintain its decision to retain Mr Harvey’s name on the Adults’ Barred List.[10]Dr Medley’s report confirmed that Mr Harvey’s diagnosis was one of a recurrent depressive disorder and that as a result of depression and considerable work stress he had assaulted his pupil in 2009. Since that time, and with medical assistance, his situation had significantly improved. Dr Medley continued:
“2. In terms of future risk, now that he has retired as a teacher, it is highly unlikely that he would be in a situation where the same factors would operate. He has considerable insight, not only in handling stress but also into how to avoid being in a similar situation in the future. It is difficult therefore to see how he could pose a risk to adults, certainly in the kind of charitable work that he is interested in. 3. I therefore see no reason for him to be barred from working with vulnerable adults, although some basic safeguards would seem prudent, which he himself recognises. Firstly, he is aware that he should not work again with children. Secondly, I would suggest a basic risk assessment of any post that he is interested in. This might for example identify if he were likely to be subject to any particular degree of threat of provocation. Thirdly, he recognises that he would not work alone. Fourthly, he has become aware of the need to identify if his mental state is in any way changing, in particular becoming depressed. Now that he is away from the particularly sensitive and stressful area of teaching, although he may still suffer depressed mood, he is unlikely to become stressed by the situation again. Lastly, he should remain in contact with his GP and, for the moment, the Community Forensics Services.”
[11]As stated the ISA maintained its position in a letter prepared by a case worker dated 11th November 2011, but endorsed by the Director of Operations. It stated that on a review of the appropriateness of Mr Harvey’s continued inclusion on the Adults’ Barred List, taking account of proportionality, his name should remain. The decision document accompanying the letter went into a significant degree of detail. It acknowledged a “marked improvement in his mental health”, but observed that the diagnosis was one of a recurrent depressive disorder and that the improvement had been over a relatively short period of time. It pointed out that Dr Medley’s assessment that Mr Harvey would not pose a risk to adults was based largely on the areas of charitable work that he had expressed an interest in working in rather than on “the wider consideration of positions which would be open to [Mr Harvey] if his inclusion on the Adults’ Barred List were to cease which is the issue we must address in our decision making process”.[12]In this context it pointed out that the ISA has no power to impose a partial bar or restrictions which would permit the recommendations made by Dr Medley to be incorporated into any future employment. It identified the risk factors in Mr Harvey’s case as being attributable to poor urge management and ineffective coping skills which the ISA assessed as being indicators transferable to a workplace setting with vulnerable adults.[13]The review decision document stated that although there was compelling evidence of a significant improvement in Mr Harvey’s condition which constituted evidence of a reduction of the likelihood of further offences being committed, Dr Medley’s report had also indicated that he thought certain basic safeguards were prudent in mitigating future risk.[14]The ISA’s view was that those identified safeguards strengthened its conclusion as to the potential risk of harm Mr Harvey might represent to vulnerable adults. It recognised that the continued inclusion of Mr Harvey’s name on the list would restrict his avenues of employment, but maintained the view that on a consideration of all the evidence, this was necessary and proportionate in ensuring that there were adequate safeguards in place to protect vulnerable adults from the potential for future risk of harm that he currently represented.

The Legal Framework

[15]Section 2 of the 2006 Act provides that the ISA shall establish and maintain a Children’s Barred List and an Adults’ Barred List. Paragraphs 11(3) and (4) of Schedule 3 to the Act provide:
“(3) ISA must include the person in the adults’ barred list if: (a) it is satisfied that the person falls within sub paragraph (4), and (b) it appears to ISA that it is appropriate to include the person in the list. (4) A person falls within this sub paragraph if he may: (a) harm a vulnerable adult, (b) cause a vulnerable adult to be harmed, (c) put a vulnerable adult at risk of harm, (d) attempt to harm a vulnerable adult, or (e) incite another to harm a vulnerable adult.”
[16]Section 4 deals with appeals to the Upper Tribunal. It provides as follows:
“(2) An appeal under subsection (1) may be made only on the grounds that the ISA 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 section 4(1) 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 [UT]. (5) Unless the [UT] finds that the ISA has made a mistake of law or fact, it must confirm that decision of the ISA. (6) If the [UT] finds that the ISA has made such a mistake it must- (a) direct the ISA to remove the person from the list, or (b) remit the matter to the ISA for a new decision. (7) If the [UT] remits a matter to the ISA under subsection (6)(b)- (a) the [UT] may set out any findings of fact which it has made (on which the ISA must base its new decision); and (b) the person must be removed from the list until the ISA makes its new decision, unless the [UT] directions otherwise. ”
[17]There have been amendments to the 2006 Act pursuant to the Protection of Freedoms Act 2012 since the Upper Tribunal decision. However, none of those amendments impacts upon this appeal or the question of the correctness of the Upper Tribunal’s decision.[18]A recent change which will have an impact for the Respondent is that, whereas previously ISA’s decision would not be subject to review for a period of ten years, the position has now been altered so that a review may take place at any time if new information emerges, or there has been a change of circumstances, or it becomes apparent that ISA has made an error. See Section 18A of the Safeguarding Vulnerable Groups Act 2006 as inserted by the Protection of Freedoms Act 2012.[19]In R (Royal College of Nursing) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin) Wyn Williams J held that, notwithstanding the terms of Section 4(3) of the 2006 Act, the Upper Tribunal is empowered in considering an appeal to determine proportionality and rationality. That observation was approved by this court in B v Independent Safeguarding Authority [2013] 1 WLR 308 (“B v ISA”). In that case Maurice Kay LJ, giving the judgment of the court on an appeal by the ISA against the Upper Tribunal’s decision removing B from the Barred List, confirmed that the Upper Tribunal had jurisdiction to determine the proportionality and rationality of the decision, but held that it could not carry out a full merits reconsideration or revisit the appropriateness of the decision.[20]He said that in assessing proportionality, the Tribunal had to accord appropriate weight to the decision of the Authority as the body particularly equipped to make safeguarding decisions. This was the case since the Tribunal was designed to adjudicate upon mistakes on points of law or findings of fact (see Section 4(2)).[21]In that case the Upper Tribunal had erred in assessing proportionality by (inter alia) failing to give sufficient weight to ISA’s decision and in reaching its own decision de novo.[22]Before the Upper Tribunal in the present matter, counsel for the ISA had argued that the correct legal approach was that the Upper Tribunal should accord significant weight to the expert judgment reached by the ISA and should not interfere with ISA’s detailed balancing exercise unless it could objectively conclude that its ultimate conclusion was necessarily disproportionate. These submissions bore a very close resemblance to those which were subsequently successful in the appeal of B v ISAwhich was pending at the time of the Upper Tribunal’s decision.[23]In contrast, counsel for Mr Harvey submitted that the correct test was that adopted by the Upper Tribunal in B v ISA, namely:
“On an appeal the Tribunal is entitled to examine the evidence and to allocate weight to it and to decide whether the balance has been struck in the right place.”
That was a test which did not survive the Court of Appeal’s subsequent decision in B v ISA.[24]The Upper Tribunal accepted counsel for Mr Harvey’s submissions that the Upper Tribunal in B v ISA had directed itself correctly as to the proper approach to proportionality. It also accepted his submission that the conclusion as to whether or not the ISA’s decision is proportionate could only be reached by the Tribunal after it has conducted its own balancing exercise, weighing all the evidence as it deems appropriate. The Upper Tribunal rejected the submissions of counsel for ISA as to the correct legal approach.[25]When the Upper Tribunal came to consider the evidence, it stated that it had formed the view that the ISA had “fundamentally misconstrued” Dr Medley’s report. It said that it failed to see how Dr Medley’s report could strengthen the view expressed by ISA that there was an unacceptable risk. It commented favourably on Mr Harvey’s oral evidence before it, complementing Dr Medley’s report. It contrasted this with the ISA caseworker’s reliance on paperwork.[26]The Upper Tribunal said that the thrust of Dr Medley’s report was very clear; the report stated “it is difficult to see how he could pose a risk to vulnerable adults.”[27]In its conclusions the Upper Tribunal trenchantly criticised the ISA. It said that the ISA had not given any detailed thought to the reasons for placing Mr Harvey on the Barred Adults’ List. It was inclined to adopt counsel’s description of the ISA in this case as having been “worryingly myopic”. This was particularly so because the ISA had taken the safeguards identified as prudent by Dr Medley and treated them as a reason supporting barring on the Adults’ List.[28]The Upper Tribunal concluded that “given that these safeguards will be in place, an absolute bar is in our view disproportionate”. The Upper Tribunal also stated that the exercise the ISA had conducted was not a balancing exercise and repeated that it had misconstrued the evidence of Dr Medley, the only medical evidence before them. Accordingly, it said that ISA’s decision was disproportionate; it constituted an error of law, and must be quashed.[29]Ms Ward argued that the Upper Tribunal fell into error in the approach to the question of proportionality. She submits that the Upper Tribunal made the same error as it had in B v ISA. It had not given appropriate weight to the judgment of ISA, or its reasoning.[30]She emphasised that, as was confirmed by this court in B v ISA, the ISA is a specialist body. It had produced a carefully structured process of decision-making which balanced factors favourable and unfavourable to Mr Harvey; the process took into account representations which Mr Harvey had made and evidence tendered on his behalf, including that of Dr Medley. The ISA had properly found potential risk arising if Mr Harvey was to find himself in the future in a difficult situation in a vulnerable adult setting. Although there was a low likelihood of repetition of the conduct, if it did occur the consequences could be of considerable gravity. Moreover, the safeguards identified by Dr Medley could not be insisted on since the ISA had no power to impose conditions.[31]She submitted that the Upper Tribunal had fallen into the same error as it had in dealing with B v ISA. It had rejected submissions that it should attach significant weight to the judgment reached by the ISA and should not interfere with its detailed balancing exercise unless it could objectively conclude that the ISA’s conclusion was necessarily disproportionate. In brief her submission was that the Upper Tribunal’s approach had not recognised the limits on its power to consider proportionality outlined in B v ISA.[32]Ms Ward went on to submit that the Upper Tribunal’s assessment of the evidence in purporting to carry out the proportionality exercise was badly flawed. It appeared to have attached little or no weight to the ISA’s expert assessment. It had placed weight on the oral evidence from Mr Harvey when that did not materially add to the written evidence from Dr Medley, (of the improvement in Mr Harvey’s condition and the change in his mindset), which had in any event been accepted by the ISA as part of its decision-making process. The ISA had not misconstrued Dr Medley’s report; it had properly taken account of the safeguards described by Dr Medley and of the fact that it had no power to impose conditions or some form of partial ban on working with vulnerable adults.[33]Both the ISA’s initial assessment and its review decision showed careful thought and a balanced approach. The Upper Tribunal had taken a different view, incorrectly, and without bearing in mind the need to accord weight to the ISA’s judgment in looking at the question of proportionality.[34]On behalf of Mr Harvey, Mr Wise QC, in succinct but focussed submissions, argued first of all that this case was unlike that in B v ISA. In that case the Court of Appeal had overturned the Upper Tribunal decision because it had made its decision de novo. That was not the case here. The Upper Tribunal had considered the ISA review and thus had given weight to its findings. The Upper Tribunal had approached the matter with an open mind, but in the end had given little weight to the ISA’s decision because on analysis the ISA was wrong on the issue of proportionality.[35]The Upper Tribunal had appropriately considered the decisions on proportionality which are now to be found in this court’s judgment in B v ISA. He laid stress on paragraph 40 of the Upper Tribunal’s decision which is in these terms:
“40. Regina (Quila and another) v SSHD [2011] 3 WLR 836 is also of considerable importance. Baroness Hale said: …this court will treat with appropriate respect the views taken by those whose primary responsibility it is to make the judgments in question. But those views cannot be decisive. Ultimately, it is for the court to decide whether or not the Convention rights have been breached.”
[36]He continued by arguing that if that submission was correct, the Appellant faced a high hurdle in saying that the Upper Tribunal was wrong in its application of the proportionality test. This court should give significant weight to the Upper Tribunal as a specialist tribunal used to deciding matters of proportionality. In addition, it had had the benefit of hearing Mr Harvey’s live evidence.[37]Mr Wise QC observed that a key question identified by Lord Bingham in Huang v SSHD [2007] UKHL 11 was whether the measures strike a fair balance between the rights of the individual and the interests of the community. The Upper Tribunal was in a strong position to answer that question. It had considered the ISA’s conclusion; it had considered Dr Medley’s evidence, and it then had to make its own proportionality decision, giving weight to the ISA’s conclusion. The Upper Tribunal was entitled to find that the ISA’s decision was disproportionate and had correctly given ISA’s judgment little weight. It had given appropriate weight to the material before it in coming to its own conclusion on proportionality. This court is not a specialist tribunal in the way that the Upper Tribunal is, and it was not for this court to review the merits of what the Upper Tribunal had decided. In the circumstances it was entitled to and had properly taken a different view from the ISA.[38]In my judgment, the process through which the ISA had worked in coming to its judgment that Mr Harvey should be included on the Adults’ Barred List was a thorough and careful one. That view was then reviewed in the light of Dr Medley’s evidence, and the confirmed conclusion appropriately recognised the force of Dr Medley’s evidence in relation to the improvement in Mr Harvey’s condition, but went on, after due consideration of the whole picture, to conclude that it did not provide a reason for reversing the decision, and if anything strengthened it.[39]I have found in the documentation relating to the ISA’s decision-making the clearest evidence of careful thought and reasoning. I therefore find the Upper Tribunal’s view that the ISA had not given any detailed thought to its decision and that it had failed to carry out a balancing exercise to be very surprising. It seems to me to be clearly wrong.[40]Very considerable reliance was placed by the Upper Tribunal on Dr Medley’s report and the ISA is criticised for having “misconstrued the evidence of Dr Medley”. Insofar as the Upper Tribunal placed additional reliance on the fact that it had heard oral evidence from Mr Harvey, I accept the submission of Ms Ward that in reality this does no more than confirm the evidence already before the tribunal from Dr Medley to the effect that Mr Harvey had improved and was currently well motivated to avoid a repetition of his conduct. However, it seems to me that the Upper Tribunal’s reliance on Dr Medley’s evidence, together with its dismissal of the ISA’s approach to it, was misconceived.[41]Firstly, its reliance on Dr Medley for the proposition that “it is difficult to see how he could pose a risk to vulnerable adults” fails to recite the remainder of the sentence from which that quotation is taken. The sentence continues “certainly in the kind of charitable work that he is interested in”. What Dr Medley was saying was that the proposed work in the sheltered and supervised confines of the church project which was willing to have Mr Harvey as a voluntary worker posed no risk, particularly if certain safeguards were taken. That is a very different thing from stating that he would not pose a risk in other situations. Mr Harvey’s own witness statement had indicated a desire in the future to work in fields other than that of the Beacon Project. He spoke of the possibility of starting up his own business and employing others. He spoke of “a huge swathe of potential employment opportunities (paid and voluntary)” which would be prohibited to him if he remained on the Barred Adults’ List. The Upper Tribunal’s decision, however, merely addresses the proposal for voluntary work at the Beacon Project.[42]In addition, it seems to me that the Upper Tribunal was wrong to treat the ISA’s view of the safeguards mentioned by Dr Medley as erroneously strengthening its case. The safeguards mentioned related to a man whose condition had improved, but only in the context of a person suffering from a recurrent depressive disorder, and whose improvement was over a relatively short time span. These considerations, which weighed with the ISA, appear to have been ignored by the Upper Tribunal, which also concluded that the safeguards “will be in place”, thus rendering an absolute bar disproportionate.[43]However, there is no guarantee whatsoever that the safeguards which Dr Medley thought prudent and which would exist under the aegis of the Beacon Project would necessarily apply in other employments or other situations. The Upper Tribunal’s assertion that those safeguards would be in place could not safely be made, nor could the safeguards be implemented as conditions attaching to any future work with vulnerable adults.[44]It seems to me that there is considerable force in the Appellant’s argument that the Upper Tribunal did not take the approach to proportionality mandated by this court in B v ISA in requiring the tribunal to accord weight to the judgment of the ISA. The Appellant’s submissions to the Upper Tribunal foreshadowed the judgment of this court in B v ISA but were not accepted.[45]When one moves forward to consider the way in which the Upper Tribunal actually dealt with the question of whether the ISA’s decision on the proportionality of barring Mr Harvey was correct, it does not seem to me that the Tribunal approached the matter correctly. Mr Wise QC’s submissions effectively conceded that the Upper Tribunal gave the ISA’s judgment little or no weight. He argues that the Tribunal was correct to do so. I disagree. The ISA had given careful and proper consideration to the risks posed by Mr Harvey. Its acceptance of Dr Medley’s evidence, coupled with its analysis that it only served to address the proposed work at the Beacon Project and no more, and even then only with safeguards, to my mind represents the appropriate and natural reading of Dr Medley’s report.[46]In my judgment it is the Tribunal’s interpretation of that report rather than the ISA’s which was perverse. The Tribunal failed to give due weight to important factors in the ISA’s assessment, such as the transferability of risk from children to vulnerable adults and the level of possible harm, and also the fact that safeguards could not be insisted on. Those were important considerations which the Upper Tribunal did not address. In the circumstances I have come to the clear conclusion that the Upper Tribunal’s decision directing the ISA to remove Mr Harvey’s name from the Adults’ Barred List on the grounds that the ISA’s decision was disproportionate was infected by an error of law for the reasons given above.[47]The effect of the Tribunal’s decision was wrongly to characterise the ISA’s decision as an error of law. There was, in my judgment, no such error made by the ISA whose valid decision was wrongly quashed. In the circumstances it seems to me that the appropriate order is not for a remittal to the Upper Tribunal. This appeal should be allowed. The decision of the Upper Tribunal should be quashed and the decision of the ISA to maintain Mr Harvey on the Adults’ Barred List should be restored.

Footnote:

[48]At some point during the progress of the matters with which this case has been concerned the ISA changed its name to the Disclosure and Barring Service. Article 102(1) of the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012 provides that “DBS shall be substituted as the Respondent (or the Appellant, or as any other party, as the case may be) in any legal proceedings against or brought by ISA which are not completed at the time ISA’s functions are transferred by this order to DBS”. The title of this action, therefore, reflects that change although for ease of reference I have referred to the ISA throughout.[49]I agree.[50]I also agree. ORDER 13 March 2013 UPON judgment being handed down in the form circulated in draft and the parties not attending IT IS ORDERED:

ORDER

[1]The appeal is allowed.[2]The decision of the Upper Tribunal is quashed and the decision of the Appellant is reinstated.[3]The names of the Respondent’s children and of any child involved in the incidents that led to the Respondent’s inclusion in the Barred Lists shall not be included in any report of the case.[4]The Respondent’s application for permission to appeal is refused.[5]No order as to costs.

Cited in 8 later judgments