AP v ISA [2012] UKUT 412 (AAC)

UKUT-AAC
AP v ISA
[2012] UKUT 412 (AAC) · 2012-11-09
[68]“Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. In my judgment this is a legal standard which, although not found in terms in the European Convention on Human Rights, takes its place alongside such rights as fair trial, and no punishment without law. That being so there is every reason to articulate the limits of this requirement – to describe what may count as good reason to depart from it – as we have come to articulate the limits of other constitutional principles overtly found in the European Convention. Accordingly a public body's promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public body's legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances ” 18. In R (Bhatt Murphy & ors.), R(Niazi) v SSHD [2008] EWCA Civ 755 the same judge identified the paradigm case of procedural legitimate expectation as arising where “a public authority has provided an unequivocal assurance, whether by means of an express promise or an established practice, that it will give notice or embark upon consultation before it changes an existing substantive policy” [29]. He held [para. 42] that in such a case:
“…the court will (subject to the overriding public interest) insist on such a requirement, and enforce such an obligation [to consult], where the decision maker’s proposed action would otherwise be so unfair as to amount to an abuse of power, by reason of the way in which it has conducted itself. In the paradigm case of procedural expectations it will generally be unfair and abusive for the decision-maker to break its express promise or established practice of notice or consultation. In such a case the decision–maker’s right and duty to formulate and re-formulate policy for itself and by its chosen procedures is not affronted, for it must have concluded that that interest is consistent with its proffered promise or practice. In other situations-the two kinds of legitimate expectation we are now considering-something no less concrete must be found. The cases demonstrate as much. What is fair or unfair is of course notoriously sensitive to factual nuance. In applying the discipline of authority, therefore, it is well to bear in mind the observation of Sir Thomas Bingham MR as he then was in ex parte Unilever at 690F, that “the categories of unfairness are not closed, and precedent should act as a guide and not a cage.” 19. In the paradigm case, a public authority may be found to have acted unfairly if a person liable to be affected by a change in an established policy or practice is not given an opportunity to make representations before the change is put into effect. However, it is clear that the doctrine of legitimate expectation can be invoked in other cases where it would not be fair to allow a public authority to depart from an established practice, even in a case where no duty to consult arises-see, for example, ex parte Unilever [1996] STC 681 , where the Inland Revenue’s refusal to accept late claims for tax relief after twenty years of accepting such claims was regarded by the Court of Appeal as “so outrageously unfair that it cannot be allowed to stand.” 20. We therefore agree with Mr Smale that a failure by the ISA to act in accordance with its own declared procedures may in some cases be unlawful. Section 4 of the Safeguarding Vulnerable Groups Act 2006 affords no right of appeal against the decision to place a person on a barred list, so that in a case such as VT a failure by the authority to escalate to the ISA Board a decision to bar a person to whom the SJP has been applied but who does not meet the barring criteria may result in a person losing a possibly crucial safeguard provided for by the authority’s internal procedures. In an ‘autobar with reps’ case the SJP is applied after representations have been received. Representations may be drafted with the provisions of the SJP specifically in mind, so that a departure from the SJP in making a barring decision on a basis not covered by the representations could result in substantial injustice. 21. Although in Nadarajah Laws LJ preferred to base the concept of legitimate expectation on the requirement for good and consistent administration rather than on the need for fairness, it is clear from Bhatt Murphy that there must nevertheless be unfairness sufficient to amount to an abuse of process for the concept of legitimate expectation to come into play. Since barring decisions will often not only affect a person’s reputation but also their livelihood, it may be that the threshold of unfairness which has to be established in such cases in order to show the breach of a legitimate expectation is lower than in cases where less vital interests are at stake. However, the provisions of the SJP form part of an administrative, rather than a judicial, decision making process, and the doctrine of legitimate expectation does not in our view confer the status of a legal procedural code on a document which has been developed to assist administrative decision makers in making barring decisions which are, to quote the ISA’s factsheet, “fair, rigorous, consistent, transparent and legitimate”
. Persons who may be affected by barring decisions are doubtless entitled to expect that the SJP will be applied conscientiously and fairly, but a decision by the authority not to apply a provision of the process will in our judgement only amount to an error of law if it results in unfairness in a legal sense. In particular, we consider that the authority will not be held to have erred in law if they decide to omit a stage in their procedures which in a particular case adds no value to the decision making process. 22. The purpose of the SJP is described in paragraph 6.2 of the August 2010 Guidance as follows:
“The SJP is used for consideration of complex individual cases that cannot reasonably be concluded at an earlier stage (or progressed otherwise: see section 2.3) and is focussed on risk factors linked to future harm. Case workers must note that some of the risk factors are not, without qualification or a combination with other factors or the relevant conduct itself; inherently harmful; it is the relevance of that risk factor to the relevant conduct under consideration that will determine the whether the ISA bars an individual. For example, an emotional congruence with children is not of itself necessarily a harmful attribute but if the evidence clearly demonstrated that an individual disclosed historical instances of sexual abuse to children over a period of time because they were more comfortable engaging on an emotional level with children, this would raise legitimate concerns regarding the risk of harm that the individual posed to children in future.”
The four broad areas of risk concern are: Harm related interests/intrinsic drives, Thinking, attitudes and beliefs, Relationships, and Self management and lifestyle. Each broad risk area is divided into a number of more specific risk factors, and the assessment requires the case worker to indicate for each risk factor ‘no concerns’, some concerns’, definite concerns’ or ‘no information’. The SJP matrix document was completed in this case to the extent that ‘no information’ was entered against each of the specified risk factors, but it is clear from the case worker’s final case summary that no attempt was made to obtain the information needed to establish the psychological drivers for the appellant’s behaviour, or to attempt to establish those drivers from the information which was available 23. We have come to the conclusion that Ms Davies is correct in submitting that no error of law resulted from the authority’s decision not to apply the SJP in this case. The offences for which the appellant was in fact ultimately sentenced under section 1(1) of the Children and Young Persons Act 1993 are classified as serious offences under section 224 of the Criminal Justice Act 2003. Although the discrepancies between the way in which the prosecution opened the case and the limited admissions forming the basis of the appellant’s guilty pleas were never fully resolved, the judge sentenced the appellant on the basis that his offences fell within the middle range of the relevant sentencing guidelines, for which the starting point is three years imprisonment, that is, a “series of assaults (the more serious the individual assaults and the longer the period over which they were perpetrated, the more serious the offence)”. In Secretary of State for Children, Schools and families v BP [2009] EWHC 866 (Admin) Munby J. (as he then was) re-affirmed that the public interest is a relevant factor in barring decisions. The seriousness of these offences, in terms of the sentencing guidelines alone, was clearly a matter to be taken into account as affecting the public interest, irrespective of the psychological drivers for the appellant’s offending behaviour. 24. In our view however the most compelling reason identified by the authority as making it unnecessary to apply the SJP in this case was the appellant’s consistent failure to recognise the seriousness of his conduct. At the appellant’s trial, the prosecution described repeated incidents of the use of excessive force against two of the children. The appellant accepted in his basis of plea that he had used excessive force against J so that her head had struck a wall and that on more than one occasion he had slapped J on the head with excessive force. However, in the statement included in his representations to the ISA the appellant gave a version of events which was markedly different from what had been accepted at the trial. At the trial it was accepted on the appellant’s behalf that he had pushed J onto a bed and that she had hit her head on a wall, but in his statement he said only that he had pushed J away and back into her room and closed the door. The appellant also accepted at the trial that he had slapped J to the back of the head, but in his statement he said only that he had ‘smacked’ her. The appellant’s statements concerning the assaults on his wife also gave a watered down version of what had been accepted at the trial, and in particular failed to mention the occasion when he put his hands to her throat and neck area. 25. The OASys report which was subsequently supplied by the appellant himself stated that he did not recognise the impact and consequences of his behaviour on the victims and in his grounds of appeal the appellant has stated that his actions were those of a normal parent having to deal with difficult children. Those latter documents were not of course before the authority at the time when the decision to retain him on the Children’s Barred List was made, but even the documents available to the decision maker at that time left no doubt that the appellant was essentially unwilling to accept his proper share of the blame for the serious offences of which he had been convicted. 26. There will no doubt be many cases where the facts reported to the ISA do not by themselves enable the risks of harm to a vulnerable group to be properly established. In such cases it will often be necessary to apply the SJP to establish the psychological drivers for a person’s behaviour. However, we do not consider that this was one of those cases. The appellant was convicted of serious offences involving actual violence against his wife and against children in his care. The fact that the children came from troubled backgrounds made it more, not less, necessary that the children were properly cared for. The evidence available to the authority at the time the decision was made to retain the appellant on the Children’s Barred List, confirmed by later evidence, was that the appellant failed to accept the seriousness of the behaviour which had resulted in his convictions. Although the offending behaviour took place in a domestic context, and against a background of considerable stresses, the evidence therefore established that the appellant lacked the self-control and the insight into his own offending behaviour which was necessary to ensure that children with whom he was liable to come into contact, in possibly stressful situations, were not at risk of harm. The reason why the SJP did not show up definite concerns in this case was that it was not in fact used except to the extent of entering ‘no information’ against each risk factor, but we agree that the evidence before the authority fully justified the barring decision without the need for the SJP to be applied. Accordingly, there was no injustice to the appellant in the decision not to carry out Stage 3 of the Barring Decision Process and therefore no error of law arose for that reason. 27. Accordingly, we turn to consider whether the ISA was mistaken in any finding of fact on which its decision was based. 28. In his submissions on behalf of the appellant, Mr Smale stressed the very difficult challenges faced by the appellant resulting from the behaviour of his wife and the children and submitted that the authority had not taken those difficulties fully into account. Mr Smale pointed out that both parents had chastised the children and he submitted that viewed objectively the allegations against the appellant concerning the children were not of the most serious kind. The authority had failed to give sufficient weight to the witness character statements and their assessment was at odds with the fully reasoned assessment in the probation pre-sentence report, which assessed the risk of harm to children by the appellant as medium unless the appellant commenced a new relationship or had unsupervised contact with children. Mr Smale eventually withdrew the assertion in the grounds of appeal that the appellant’s behaviour had been normal and stated that the appellant now accepted the part he had played in the offences of which he was convicted. He submitted that the appellant should not be disadvantaged on the basis that he was minimising his own role in the offences by putting forward a version of events which differed from that of the complainants, and that the events in which he had been involved might in fact lessen the risk which he posed to children. Mr Smale described the offences of which the appellant had been convicted as relatively minor, and stated that public confidence did not require the imposition on the appellant of a disproportionate sanction. 29. In the recent case of Independent Safeguarding Authority v SB and Royal College of Nursing [2012] EWCA Civ 978 the Court of Appeal held that the Upper Tribunal cannot carry out its own fresh consideration of the evidence, but must give proper weight to the assessment of the ISA, taking into account the public interest. Because the judgment of the Court of Appeal was given after the conclusion of oral argument in this case, we gave both parties an opportunity to make written submissions on the Court of Appeal’s decision. The appellant did not however avail himself of that opportunity. 30. The appellant was informed of his right to give evidence before us, but decided not to do so. There has therefore been no challenge to the primary facts on which the authority’s decision was based and Mr Smale’s submissions on the facts have therefore centred almost exclusively on the weight given by the ISA to various aspects of the evidence. As we have already reminded ourselves, the weight to be given to the evidence was a matter for the authority. Although the Upper Tribunal has power to consider whether a decision is disproportionate, the Court of Appeal has held that in doing so it must give proper weight to the authority’s decision. 31. We can find no basis for holding the barring decision in this case to be disproportionate. It seems to us that the authority was fully entitled to give the weight that they did to each of the different factors in the case; in particular, the seriousness of the offences of which the appellant was convicted and his refusal, repeated in the grounds of his appeal, to acknowledge the full extent of his responsibility for those offences. For the reasons we have given in considering whether the authority should have applied Stage 3 of the Barring Decision Process, we consider that those factors fully justified the decision by the authority to retain the appellant on the Children’s Barred List. 32. Since we have found that the authority were not mistaken on any point of law or fact in making the decision to retain the appellant on the Children’s Barred List, we are bound by section 4 of the 2006 Act to confirm their decision. We do so accordingly. Signed on the original by E A L BANO Judge of the Upper Tribunal and on behalf of Ms Linda Redford Member of the Upper Tribunal and Mr Raymond Winn Member of the Upper Tribunal Dated 9 November 2012

Cited in 3 later judgments