Outhwaite v Secretary of State [2010] UKFTT 406 (HESC)

FTT-HESC
Outhwaite v Secretary of State
[2010] UKFTT 406 (HESC) · 2010-09-13
Outhwaite v Secretary of State [2010] UKFTT 406 (HESC) (13 September 2010) Schedule 5 cases: Protection of Vulnerable Adults list Inclusion on PoVA list       Katie Outhwaite   v   Secretary of State   [2009]1624.PVA [2009]1625.PC     Before Mr Laurence Bennett (Tribunal Judge) Ms Denise Rabbetts Mr Mike Jobbins       Heard: 2 July 2010  Newcastle Magistrates Court, Market Street, Newcastle upon Tyne NE1 6HQ       Representation:[1]Ms Katie Outhwaite was represented by Mr Jonathan Barker, a Solicitor.[2]Ms Samantha Broadfoot, a Barrister instructed by the Treasury Solicitor, represented the Secretary of State.   Appeal:[3]Ms Outhwaite appeals under Section 86(1) of the Care Standard Act 2000 against the decision of the Secretary of State for Health under Section 81 of that Act to include her in the list of individuals who are considered unsuitable to work with vulnerable adults.[4]Ms Outhwaite appeals under Section 4(1)(a) of the Protection of Children Act 1999 against the decision of the Secretary of State for Children, Schools and Families under Section 1 of that Act to include her in the list of individuals who are considered unsuitable to work with children.   Restricted Reporting Order[5]On 15 January 2010 His Honour

Judge David Pearl, Principal Judge of the Tribunal made a direction:

"A direction is made under rule 18(3) prohibiting the publication in any form (including electronic media) of any information that may lead to the identification by members of the public of any vulnerable adult referred to in the proceedings.  This order remains in force until the Tribunal directs otherwise."
[6]This order is extended indefinitely.   Preliminary Directions:[7]On the unopposed application of Ms Broadfoot at the hearing additional documentary evidence and photographs were admitted.[8]Following the application of the parties oral evidence was given on oath.   Evidence:[9]Ms Outhwaite was employed by Mencap Darlington as a support worker.  Her duties were to assist vulnerable adults supported by Mencap.  In July 2008 she was assigned to support a service user S.  The purpose of S's support was to help her live independently within the community.  On the relevant day, 15 July 2008 Ms Outhwaite was required to remain in S's home from 5:00pm to 6:30am to ensure S's safety, reduce her anxiety levels and provide general support.[10]S's home is located in a cul-de-sac within an estate in Darlington.  Ms Outhwaite stated that the neighbourhood is not safe and has problems associated with estates in areas of deprivation to the extent that following complaints Mencap staff were provided with panic alarms. Over time Ms Outhwaite had become familiar with S's needs and routines.  She stated that S was resistant to support workers and could be difficult with them.[11]Ms Dawn Smith, another Mencap support worker who has worked with S described her as "challenging" although vulnerable and impressionable needing "a lot of guidance and advice." Ms Outhwaite understands from derogatory comments S made to her about lesbian neighbours that S had issues about Ms Outhwaite's sexuality.[12]On 15 July 2008 Ms Outhwaite attend S's home at 5:00pm.  She travelled there in her newly acquired green 2-door Rover, a recent replacement for a car that "had blown up."[13]Ms Outhwaite parked directly outside the kitchen window of a house occupied by Mencap service users who were supported that night by Ms Smith.  Around 7:00pm Ms Outhwaite left S's home to drive to ASDA to buy a sandwich, although it is not clear whether this was for her or S.  Ms Outhwaite stated that S agreed that she should go to ASDA; nothing more has been made of this.  As she left S's home Ms Smith was emptying bins at the other service user's property. She and Ms Outhwaite conversed about the Rover because Ms Smith had not seen the car before.  Ms Smith recalls that it had soft toys on the back shelf and stickers.  Ms Outhwaite stated it only had one toy, a "rasta" and did not have the particular sticker described by Ms Smith.  Ms Smith went inside and did not mention that she saw the car leave the parking space at that time.[14]Ms Outhwaite stated that on her return, some twenty minutes later, her original parking space was not available and she was obliged to park the car some way down the road.[15]At the time Ms Outhwaite was prescribed medicine for tonsillitis.  She said she had left her medication at a friend's home and had arranged for it to be brought to her.  Her friends knocked at the door, Ms Outhwaite went outside to speak to them as did S's friend who was visiting.  This lasted around five minutes.[16]S's friend left at around 11:00pm.  S had a bath and went to bed.  S locked the front door of the property.  Ms Outhwaite stated she went to bed at around the same time and because of her medication slept late the following morning, so late that she could not attend her 6:30am duties at another service user's property.[17]Ms Smith said that at around 11:45pm while she was writing up notes she heard the noise of a car engine, looked out of the window of the guest bedroom and noticed car lights.  She was sure this was Ms Outhwaite's car because it came from the parking space immediately in front of her service user's house.  She stated that as it moved she had a clear view and could see Ms Outhwaite driving the car and recognised her beanie hat.  Ms Outhwaite said she was not wearing her beanie hat.  Ms Smith became concerned as she could not see lights at S's property and Ms Outhwaite was not there.  Ms Smith went downstairs and looking out of the window noticed that lights in S's home turned on and a short time later, turned off.  As she wasn't sure what was happening, she sent a text to Mencap's "On Call" number.  This text was not actioned as the On Call system had changed and required on voice calls.[18]Around 12:45am Ms Smith again heard the sound of a car; she observed it park in a more distant parking space within the cul-de-sac and saw Ms Outhwaite walking from the car towards S's property and entering by the front door.  The next morning the On Call Manager having then seen Ms Smith's text, asked her for details of what had happened and requested that she make a note.  At the request of Ms Yvonne Rogers, a Supported Living Manager, Mencap, Ms Smith gave further information.[19]Ms Outhwaite disputes that she left S's home and stated that it is impossible to see the front door of S's property from Ms Smith's location because of the projecting external store.[20]Ms Rogers said that S is the only service user for whom Mencap Darlington Team provide continuous nightly sleeping support because she is vulnerable and needs reassurance, has a history of self-harm and threats of suicide.  Ms Rogers specified the support worker's duties.[21]Ms Rogers gave details of Ms Outhwaite's history with Mencap and the induction training that all new staff are required to undertake.  Ms Rogers described the On Call procedures and said that staff were aware they must not leave a service user for any reason.  In an emergency staff should telephone the On Call Manager who would arrange cover.[22]Ms Rogers mentioned that a text message received on 12:15am on 16 July 2008 stated:
"Hi sorry to bother you this late but I'm at Taransay but was wondering if Client A at Sky is ok as ive just seen her support staff drive away."
On hearing this Ms Rogers initiated an investigation and arranged to call upon S.  When she arrived she said that S:
"Told me immediately and without any prompting or questioning from me that Katie had gone out the previous night and had left her.  She also told me that Katie had locked the door and taken the key.  Client A told me that she was very shaken and frightened.  I asked Client A whether she had thought about calling the On Call Manager to let them know what had happened.  She told me that she was going to do so but had no money on her phone. Client A told me that she was going to let me know this morning when she got up but that she had only got up after I had telephoned her."
Ms Rogers gave details of the arrangements for locking the doors and location of an emergency key.[23]After Ms Rogers obtained information from S and Ms Smith on 16 July 2008 she telephoned Ms Outhwaite and informed her that she was suspended from duty. She undertook an investigation and interviewed Ms Outhwaite on 18 July 2008; Ms Outhwaite was subsequently dismissed on the grounds of misconduct.  Ms Rogers commented that Ms Outhwaite has since changed her version of events.    Submissions[24]Ms Broadfoot's closing submissions on behalf of the Secretary of State drew attention to Ms Smith's evidence which she described as absolutely categoric.  She referred to the photographs of the cul-de-sac which showed the standard of lighting, layout and relevant sight lines from the properties.[25]Ms Broadfoot submitted that details such as whether the front door could be seen by Ms Smith were not significant.  It was clear that she observed Ms Outhwaite to the point were it would have been impossible for her to go anywhere other than inside S's home.  She emphasised the consistency of Ms Smith and S's account of events and addressed discrepancies and inconsistencies in Ms Outhwaite's accounts of events over time and the false impression she attempted to give of Mencap management.[26]Ms Broadfoot addressed the statutory framework and analysed the issues of suitability by reference to guidance contained in the Tribunal decision Angella Mairs and Secretary of State for Education & Skills [2004] 269 PC.[27]Mr Barker's closing submissions on behalf of Ms Outhwaite also reflected upon the statutory framework and the appropriate approach for the Tribunal's determination.  His submissions on the law were in broad agreement with those of Ms Broadfoot.[28]Mr Barker emphasised the length of time since the events, the "unsatisfactory" investigation and the discrepancies in Ms Smith and Ms Rogers' evidence.  In particular, the new mention of the beanie hat some years later, the location of the door key to S's property and the illogicality that Ms Outhwaite might go out at 11:45pm in a town she does not know.[29]Mr Barker submitted that Ms Outhwaite was candid in her interviews, she was open about leaving to shop at ASDA and that her friends called at S's property.  She was open about her medication.[30]Mr Barker submitted that even if the Tribunal found Ms Outhwaite left the service user, this would not be grave misconduct and would constitute an isolated incident at the lower end of the scale and "whilst the Appellant does not accept the incident took place and even if it did take place this was a one off incident and the risk of harm such as it was, was very modest."        The Law[31]The appeals are made under Rule 20 of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (the Rules) and Section 86 of the Care Standards Act 2000 and Section 4 of the Protection of Children Act 1999.[32]Paragraph 2(1) of the Rules states that:
"The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly."
Paragraph 2(2) "Dealing with a case fairly and justly includes ………..(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings."[33]The conditions required to be met before an individual is included on the Protection of Vulnerable Adults list are set out in Section 82 of the 2000 Act.[34]By Section 86(3)(a) if "the Tribunal is not satisfied of either of the following, namely –(a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult and(b) that the individual is unsuitable to work with vulnerable adults, the Tribunal shall allow the appeal ..…"[35]In this appeal the decision to place Ms Outhwaite on the POCA List was as a result of her inclusion in the POVA List.  In that case, Section 97 of the 2000 Act and Section 2C of the Protection of Children Act 1999 provides that misconduct relating to a vulnerable adult for the purposes of the POVA List satisfies the requirement of misconduct relating to a child.  However, the issue of unsuitability to work with children falls to be considered separately.[36]Under Section 1 of the Protection of Children Act 1999 the Secretary of State must 'keep a list of individuals who are considered unsuitable to work with children.  By Section 4(1) an individual who is included in the list may appeal to the Tribunal against the decision to include him in the list.[37]By Section 4(3) if "the Tribunal is not satisfied of either of the following, namely –(a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed a child or placed a child at risk of harm, and(b) that the individual is unsuitable to work with children, the Tribunal shall allow the appeal and direct his removal from the list; otherwise it shall dismiss the appeal …"[38]The purpose of the listing scheme is to protect children from those who are employed to work with them and to maintain public confidence in the care provided to children.  Listing under the scheme involves a difficult balancing exercise between the safety of children and the rights of individuals to have their livelihoods and reputations safeguarded (see Lady Justice Hale in R v The Secretary of State for Health ex parte C (2000) EWCA 49).  We consider that this exercise is equally applicable for vulnerable adults.[39]The burden of proof is upon the Secretary of State.  The standard of proof is the civil standard upon a balance of probabilities.[40]We consider that the Appellant's suitability relates to the present and the Appellant's current suitability at the date of the hearing is to be determined by the Tribunal.[41]In the case of Angella Mairs [2004] 269.PC the Tribunal held as follows in relation to the issue of unsuitability to work with children (paragraph 111):
“Unsuitability to work with children   Unsuitability must be judged by the Tribunal at the date of the hearing. The judgment will involve consideration of the character, disposition, capacity and ability of the individual concerned, including his or her ability to act properly in potentially difficult or frustrating circumstances. The judgment will inevitably be, at least in part, by way of deduction from past performance, including (but not limited to) the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed a child or placed a child at risk of harm.   The Tribunal may have regard to: (a) the number of the incidents constituting the misconduct established for the purposes of section 4(3)(a) of the Act; (b) the gravity of that misconduct; (c) the time that has elapsed since that misconduct; (d) the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential to harm  a child; (e) the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct; and (f) extenuating circumstances surrounding the misconduct.   This should not be regarded as an exclusive list.  The Tribunal may also have regard to other admitted, undisputed or proved past conduct of the applicant, whether good or bad.”
Conclusions:[42]We have considered carefully the sequence of events in relation to movement of Ms Outhwaite's car.  It is not disputed that she drove to ASDA and parked on her return.  Taking into account the times mentioned by Ms Smith we find that Ms Outhwaite's conversation with Ms Smith who was attending to the bins must have taken place on Ms Outhwaite's return from ASDA when she either recovered the same parking space or parked outside Ms Smith's house for the first time.[43]We find that there is consistency between Ms Smith's description of events and Ms Rogers' evidence of what S told her.  This evidence does not agree with what Ms Outhwaite stated took place.[44]We have considered whether Ms Outhwaite has developed her recollection over the period of investigation and have considered the evidence she gave at the hearing with earlier statements.  In some respects there is a marked difference including the involvement of her friends and her seeming anticipation of information which had not yet been revealed to her.  There are difficulties in her developing version of events leading to confusion and what appears as strained explanations on matters such as the location of the door key.[45]We accept that evidence of identification in these circumstances presents difficulties and have considered carefully the relevant location lighting conditions and sight lines.  Bearing this in mind we find no reason to doubt the evidence of Ms Smith and the support for her description of events deriving from Ms Rogers' evidence of her investigations including the information she obtained from S and the relatively unclear and confusing statement of Ms Outhwaite.  We conclude that Ms Outhwaite did leave S's home for approximately one hour whilst she thought S was asleep.[46]Following this conclusion we find that Ms Outhwaite has been guilty of misconduct and taking into account the nature of this misconduct we are satisfied that it had the potential to cause significant harm to S.  Ms Outhwaite had specific duties because of S's known vulnerability.  We accept that unusually this required a continuous physical presence.[47]We do not consider that the incident can be considered in isolation.  It is clear from our findings that during the evening Ms Outhwaite left S's home on more than one occasion.  We do not believe she has changed her approach since that time as it is clear she does not accept that the events constituting misconduct, took place.  In these circumstances we find that she is unsuitable to work with vulnerable adults and for similar reasons determine it would be inappropriate for her to work with vulnerable children.  Ms Outhwaite should remain on the POCA and POVA lists.     Order[48]Ms Outhwaite's appeal is dismissed.[49]The Restricting Reporting Order set out in paragraph 5 shall extend indefinitely.     Mr Laurence Bennett (Tribunal Judge) Ms Denise Rabbets (Specialist Member) Mr Mike Jobbins (Specialist Member)       Date:  August 2010