SA v Disclosure and Barring Service [2013] UKUT 93 (AAC)

UKUT-AAC
SA v Disclosure and Barring Service
[2013] UKUT 93 (AAC) · 2013-02-20
[1]This appeal does not succeed. We confirm the decision of the Independent Safeguarding Authority (“ISA”), embodied in a letter dated 3 rd February 2011 and made under reference 1048897W (IDM), to keep the appellant’s name on the Adults’ Barred List.[2]We held an oral hearing of this appeal on 20 th November 2012. The appellant attended in person and was represented by Mr Tim Baldwin of counsel, who acted pro bono , instructed by Bindmans LLP, solicitors. The ISA, now replaced by the Disclosure and Barring Service, was represented by Ms Galina Ward of counsel, instructed by the Treasury Solicitor. We are grateful to them for their assistance. Background and Procedure[3]The appellant is a woman who was born on 5 th May 1966. She has had a difficult and traumatic life and has suffered from depression. She was also involved in a failed business and at the relevant time had debts exceeding £30,000. At some stage she started working as a care worker for vulnerable adults, both through a domiciliary care agency and through referrals by a charity. In 2006 she started caring full time for a woman (“Mrs M”), aged 89. Mrs M had no family and it seems that the appellant was the closest person to her and that Mrs M was dependent on the appellant, whose duties included shopping for Mrs M and laying out the cost of this, which Mrs M would reimburse by cheque which also included the appellant’s wages. The delays involved in such payments made the appellant’s financial position more difficult.[4]From January 2007 the appellant began to steal money from Mrs M. She did this by asking Mrs M to sign blank cheques and then herself filling in amounts that exceeded what Mrs M owed her. The agency became suspicious and reported their suspicions to the local authority, which brought in the police. After six months of investigation (during which she had mental health problems including a month in a mental hospital), the appellant was charged with 33 offences involving about £51,000. It seems that many of these charges related to cheques where an incorrect amount had not been entered, but eventually the matter went to trial on the basis of 12 charges. In November 2009 the appellant was convicted of five offences of theft contrary to section 1 of the Theft Act 1968 (on separate dates between January 2007 and January 2009) and was sentenced to an immediate term of imprisonment for 15 months on each count (concurrent), subsequently serving eight months in custody. As we understand it, the appellant does not now dispute that she committed these offences.[5]The convictions were reported to the ISA, which wrote to the appellant on 12 th October 2010 informing her that it was minded to bar her from working with vulnerable adults by including her name on the Adults’ Barred List that the ISA maintains under section 2 of the Safeguarding of Vulnerable Groups Act 2006 (“the 2006 Act”). This was because of the convictions already referred to, and also because it had been informed by the Metropolitan Police that there had been a previous allegation that in September and October 2006 she had on three occasions stolen money from a 70 year old man (“Mr X”) whom she had been employed to care for but whose family had not wanted to subject him to the stress of a police investigation and trial. No further police action had been taken. The appellant denies this allegation.[6]The Metropolitan Police had also disclosed that in April 2006 a local authority had alleged that over a period of eight or nine years the appellant had regularly submitted fraudulent claims for housing benefit. On 4 th January 2010, while in prison in respect of the offences against Mrs M, the appellant had pleaded guilty to at least six counts of false accounting (in respect of sums totalling over £22,000) and had been sentenced to 12 months imprisonment for each offence, concurrent with each other but consecutive to the sentences in relation to Mrs M.[7]The letter of 12 th October 2010 invited the appellant to make representations within eight weeks as to why her name should not be included on the list. It appears that late representations made on her behalf on 23 December 2010 by a citizens’ advice bureau were not received before 6 th January 2011 when the ISA informed the applicant that she was included on the Adults’ Barred List as from that date. Upon receipt of a further letter from the citizens’ advice bureau, the ISA considered the matter afresh in the light of the re[presentations but on 3 rd February 2011 the ISA notified her of its decision to keep her name on the list. It relied on the convictions for theft from Mrs M and it also found on the balance of probabilities that the appellant had stolen money from Mr X between September and October 2006 but it did not refer to the convictions for housing benefit fraud.[8]On 3 rd May 2011 the appellant lodged an application for permission to appeal to the Upper Tribunal. On 22 nd February 2012, after an exchange of written submissions and an oral hearing, Upper Tribunal Judge Wikeley gave permission to appeal. He directed that the written submissions already made should stand as the submissions on the appeal and that there be an oral hearing of the substantive appeal before a full panel. Since the principal issue in the appeal is a question of law of general importance, the Chamber President directed that the panel be comprised of two judges and one expert member (see paragraph 3(b)(ii) of the Senior President of Tribunals’ Practice Statement on the Composition of tribunals in relation to matters that fall to be decided by the Administrative Appeals Chamber of the Upper Tribunal on or after 1 October 2010 ). The hearing took place before us on 20 th November 2012. The Scope of the Appeal[9]Appeal rights against decisions made by the ISA are governed by s.4 of the 2006 Act, which provides as follows:
“4(1) An individual who is included in a barred list may appeal to the Upper Tribunal against— (a) a decision under paragraph 2 or 8 of Schedule 3 not to remove him from the list; (b) a decision under paragraph 3, 5, 9 or 11 of that Schedule to include him in the list; (c) a decision under paragraph 17 or 18 of that Schedule not to remove him from the list. (2) An appeal under subsection (1) may be made only on the grounds that 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 that subsection 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 Upper Tribunal. (5) Unless the Upper Tribunal finds that ISA has made a mistake of law or fact, it must confirm the decision of ISA. (6) If the Upper Tribunal finds that ISA has made such a mistake it must— (a) direct ISA to remove the person from the list, or (b) remit the matter to ISA for a new decision. (7) If the Upper Tribunal remits a matter to ISA under subsection (6)(b)— (a) the Tribunal may set out any findings of fact which it has made (on which ISA must base its new decision); and (b) the person must be removed from the list until ISA makes its new decision, unless the Upper Tribunal directs otherwise. ”
[10]The drafting of section 4(3) is a little odd – presumably “decision” is to be read as “question” and the reference to an error of law appears to have been included out of an abundance of caution since it is difficult to conceive of the question whether or not it is appropriate for an individual to be included in a barred list ever being regarded as a question of law – but it is clear from B v Independent Safeguarding Authority (Royal College of Nursing Intervening) [2012] EWCA Civ 997 ; [2013] 1 WLR 308 that the subsection has the effect that the Upper Tribunal cannot substitute its judgment as to whether or not it is appropriate for an individual to be included in a barred list for that of the ISA. It is equally clear from that decision that section 4(3) does not materially restrict the power conferred by section 4(2) to set aside a decision of the ISA on the ground that it has made a mistake on a point of law by, for instance, making a mistake as to proportionality such that its decision breaches the European Convention on Human Rights. Section 4(2) also has the effect that the Upper Tribunal may substitute its own judgment for that of the ISA on matters of fact other than the question whether or not it is appropriate for an individual to be included in a barred list.[11]In the present case, the grounds of appeal had effectively become narrowed down to two by the time the appeal came before us. The first was whether the ISA was entitled to regard the thefts from Mrs M as “relevant conduct” for the purposes of the 2006 Act, which is a question of law. The second was whether the ISA’s finding that the appellant had stolen money from Mr X was procedurally flawed. That also is a question of law but the appellant seems to have overlooked the possibility of also challenging the finding on the ground that it was simply wrong in fact. However, for reasons we shall explain below, it is not necessary for us to determine that issue of fact. Listing under the 2006 Act[12]Part 2 of Schedule 3 to the 2006 Act makes provision for including persons in the Adults’ Barred List. Paragraph 7 provides that, where prescribed criteria are satisfied, a person must be included in the list. At the material time, paragraph 8 provided that where prescribed criteria are satisfied, a person had to be included in the list but could be removed from the list in the light of representations. Now, it provides that the inclusion in the list should not take place until the representations have been considered, but this distinction is not material to the present case. Conviction of prescribed offences may lead to inclusion in a list under paragraphs 7 or 8 (see paragraph 24) but it is common ground that theft contrary to section 1 of the Theft Act 1968 is not such a prescribed offence.[13]In the present case, the convictions for theft from Mrs M were treated as conclusive evidence of her having “engaged in relevant conduct” so as to justify her inclusion in the list under paragraph 9 of the Schedule. At the material time, paragraphs 9 and 10 read as follows:
“ 9 (1) This paragraph applies to a person if– (a) it appears to ISA that the person has (at any time) engaged in relevant conduct, and (b) ISA proposes to include him in the adults' barred list. (2) ISA must give the person the opportunity to make representations as to why he should not be included in the adults' barred list. (3) ISA must include the person in the adults' barred list if– (a) it is satisfied that the person has engaged in relevant conduct, and (b) it appears to ISA that it is appropriate to include the person in the list. 10 (1) For the purposes of paragraph 9 relevant conduct is– (a) conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult; (b) conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him; (c) conduct involving sexual material relating to children (including possession of such material); (d) conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to IBB that the conduct is inappropriate; (e) conduct of a sexual nature involving a vulnerable adult, if it appears to IBB that the conduct is inappropriate. (2) A person´s conduct endangers a vulnerable adult if he– (a) harms a vulnerable adult, (b) causes a vulnerable adult to be harmed, (c) puts a vulnerable adult at risk of harm, (d) attempts to harm a vulnerable adult, or (e) incites another to harm a vulnerable adult. ”
Paragraph 11 provides for a person to be included in a list where he or she has not engaged in relevant conduct but nonetheless it is considered that he or she might in the future harm, or put at risk of harm, a vulnerable adult. Theft as relevant conduct[14]The first ground of appeal is that the ISA erred in law in finding the appellant to have “engaged in relevant conduct”. By the time of the hearing before us the appellant’s arguments were that theft (at least of the type of which the appellant was convicted and/or suspected) is not “relevant conduct” within the meaning of paragraph 9(1) of Schedule 3, that at the very least there has to be evidence of physical or psychological harm (beyond financial loss) before conduct can be said to endanger or be likely to endanger a vulnerable adult and that there was no such evidence in this case. Originally, it had also been argued that the decision by the ISA was disproportionate and in breach of the appellant’s rights under Article 8 of the European Convention on Human Rights (protecting the right to respect for private and family life, home and correspondence). However, Mr Baldwin conceded that if he did not succeed on the basis of his first ground (in relation to the meaning of “relevant conduct”), he could not succeed on the proportionality and article 8 arguments alone. On the facts of this case, we agree, but proportionality and Article 8 might have a bearing on the construction of the legislation. Mr Baldwin also argued that the listing provisions of the 2006 Act are penal provisions and should therefore be construed strictly.[15]The ISA argued that both the ordinary meaning of the word “harm” and its use in the context of the 2006 Act clearly encompass the unlawful deprivation of property, and that in any event theft carries with it the risk of causing psychological harm to the victim. In support of its arguments, Ms Ward referred us to definitions in other legislation, in particular section 93(1) of the Protection of Vulnerable Groups (Scotland) Act 2007, to decisions of the former care standards tribunal under then Care Standards Act 2000 and to a statement made in Parliament on the issue.[16]We prefer to rely on the language of the 2006 Act itself, bearing in mind its context. The long title of the Act refers to “An Act to make provision in connection with the protection of children and vulnerable adults”. We reject Mr Baldwin’s submission that the barring provisions are penal. The effect of listing is that the relevant person is unable lawfully to engage in certain kinds of activity. There is no other sanction unless the person then commits one of the relevant offences. The provisions creating those offences are certainly penal provisions but they are quite separate from the listing provisions. The latter are no more penal provisions than would be provisions prohibiting people without driving licences from being employed as drivers. The purpose of listing is purely the protection of children and vulnerable adults. Punishment is not an aim. Of course listing must be proportionate, bearing in mind a person’s Article 8 rights, but those are matters properly taken into account under paragraph 9(3)(b), in considering whether it is appropriate to include the person in the list, and there is no need for them also to be taken into account under paragraph 9(3)(a). In our judgment, paragraph 9(3)(a) makes having engaged in relevant conduct a mere threshold or trigger.[17]There is, however, force in Mr Baldwin’s submission that mere loss or property as a result of theft does not amount to harm for the purposes of the 2006 Act. The natural reading of paragraph 10(2) is that “conduct endangers a vulnerable adult” only if there is harm, or a risk of harm, to the person of a vulnerable adult and not to his or her property. But if the loss of property does not amount to harm, it may nonetheless result in it. Ms Ward referred us to the guidance issued by the Secretary of State for health in relation to the Protection of Vulnerable Adults list maintained under the Care Standards Act 2000. In that Act, a predecessor of the 2006 Act, “harm” was defined in section 121(1). The Guidance said, at page 9 – “… this definition of ‘harm’ does not include theft, yet this betrayal of trust can cause deep distress to vulnerable service users.” The implication was that the distress would, or at least might, amount to harm. We are quite satisfied that, for the purposes of the 2006 Act, causing vulnerable adults distress is to “harm” them.[18]However, it is not necessary to prove that there has been harm. Paragraph 10(1)(a) has the effect that conduct which has endangered a vulnerable adult or was likely to endanger a vulnerable adult is “relevant conduct”. Moreover, by virtue of paragraph 10(2)(c), a vulnerable adult is endangered if put “at a risk of harm”. Thus, if conduct creates a risk of harm, then by definition the conduct endangers a vulnerable adult. If the conduct endangers a vulnerable adult then by definition it is relevant conduct and the person who has engaged in such conduct is liable to have their name put on the barred list.[19]It seems to us to be beyond doubt that theft by a carer from a vulnerable adult for whom he or she is caring is likely to cause, or at least risks causing, deep distress to the vulnerable adult should the vulnerable adult discover it, even if such conduct does not always actually cause harm. It is not the mere loss of property or even the fact that there is a breach of trust that is important; it is the nature of the breach of trust. Where a person is vulnerable and being cared for for precisely that reason, any breach of trust is more serious simply because the need for trust is greater. It is for this reason that we are satisfied that the ISA did not err in considering that the thefts from Mrs M were “relevant conduct” without finding that Mrs M had in fact suffered distress. The same reasoning applies to the thefts from Mr X on the ISA’s finding that they had occurred.[20]It might be argued that there would be no risk of harm to a vulnerable adult who, by reason of mental incapacity, would be oblivious to any theft. However, paragraph 10(1)(b) has the effect that “relevant conduct” includes conduct which “if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him” . Repeating the conduct in relation to another vulnerable adult not suffering from such mental incapacity would create a risk of harm and according the conduct in respect of the mentally incapacitated victim would be “relevant conduct”.[21]It follows from our reasoning and from paragraph 10(1)(b) that the housing benefit offences could also be “relevant conduct” in the present case. If the dishonest conduct against the local authority in the housing benefit claims were to be repeated against a vulnerable adult, it would be likely to cause distress. However, it seems to us that the ISA would be unlikely to consider that “it is appropriate to include the person in the list” (the paragraph 9(3)(b) question) solely on the strength of such convictions, even if the person had been engaged in regulated activity, because, taken alone, the convictions would not indicate a preparedness or propensity to put a vulnerable adult at risk of harm. If all convictions for dishonesty did suggest a substantial risk to vulnerable adults, presumably they would be prescribed for the purposes of paragraph 7 or 8.[22]The ISA could have relied on the housing benefit convictions in the present case as a reason for finding that the appellant’s propensity for dishonesty ran deeper than suggested by the other thefts by themselves and that consequently there was an even greater risk of reoffending against a vulnerable adult. There are hints that it did so in its “Barring Decision Process” but it did not refer to this in its decision letter which may reflect a view that it was not necessary to rely on those convictions on the facts of this case.[23]We have not gained any assistance from looking at the definition of regulated activity in paragraph 7 of Schedule 4 to the 2006 Act to which Ms Ward referred us, particularly as the version to which she referred us was not in force at the time of the ISA’s decision. Nor have we gained any assistance from other legislation. Nor need we refer to decisions of the care standards tribunal, which are not binding on us and are not even of persuasive value if they contain no detailed analysis.[24]Nor have we relied on anything said in Parliament when the bill that became the 2006 Act was being considered. We are inclined to agree with Mr Baldwin that the conditions for doing so, laid down in Pepper v Hart [1993] AC 293, have not been made out. But we do note that what the Minister said appears to be consistent with our own reading of the legislation. Ms Ward referred to a statement made by the Parliamentary Under-Secretary of State for Education and Skills, Parmjit Dhanda MP, when commenting on proposed amendments to define “harm” as it had been defined in earlier legislation. He said (Official Report, Standing Committee on Bills cols 58-9):
“If we define the precise meaning of harm as the amendments suggest, there is a danger that we will unnecessarily restrict the circumstances in which an employer, for example, can refer information to the [ISA] or the [ISA] itself can consider barring an individual. It is not clear, for instance, whether the suggested definition would allow the [ISA] to determine whether an individual had harmed a vulnerable adult if they had defrauded elderly care home residents … Is that what we want to do? That would be the consequence of the amendment. The Government believe that it is far better for harm to take its natural meaning, which covers our intentions for the scheme. That includes damage to a child or vulnerable adult’s mental or emotional state as well as physical harm. It will include acts of omission as well as commission. The meaning of the word would not be restricted to physical or indeed any other kind of consequence. In the case of vulnerable adults, it might also include harm incurred through financial loss.”
Procedural irregularity[25]The material before the ISA relating to Mr X was sketchy. It consisted simply of a letter from the Metropolitan Police Specialist Crime Directorate, dated 5 th October 2010, stating – “It was alleged in November 2006 that between September and October 2006, [the appellant] whilst employed as a care worker did steal money from a male 70 year old service care user. It was alleged that a cheque for £329.00 was presented in favour of [the appellant] and that the signature on the cheque had been forged. It was alleged that 2 further cheques, sum unknown had also been stolen and presented by [the appellant]. The family of the victim did not wish for the victim to endure the stress of a police investigation and the likelihood of a subsequent trial and police therefore took no further action.”[26]In its letter of 12 October 2010 informing the appellant that it was minded to include her in the Adults’ Barred List, the ISA wrote – “On the basis of the information we have received we have also found, on the balance of probabilities, that you also stole money from an elderly male service user between September and October 2006, whilst employed in a position of trust.”[27]In its representations dated 23 December 2010 on behalf of the appellant, the citizens’ advice bureau wrote – “[The appellant] acknowledges that she has a criminal conviction for theft, which she very much regrets. Your letter of 12 th October 2010 mentions another suspected incident. However she tells us that she does not recognise the circumstances described.”[28]The decision of 3 February 2011 stated – “We maintain that on the balance of probabilities you also stole money from an elderly male service user between September and October 2006, whilst employed in a position of trust. This is because, whilst you say you do not recognise the circumstances described, the incident is detailed in a disclosure of information letter supplied by the Metropolitan Police Disclosure Team and is therefore regarded as a highly credible and reliable source of information. The fact that this allegation was independently reported to the police and covers a period of time just preceding the proven thefts from [Mrs M], that the modus operandi (forged cheques) is the same and that the police information is relied on indicates that it is more likely than not that this incident occurred.”[29]The grounds of appeal appeared to assert that the claimant had not seen the letter of 5 th October 2010 from the Metropolitan Police. The ISA says that it was among the documents enclosed with the letter of 12 th October 2010, which would certainly be usual practice. In any event, it is also argued on behalf of the appellant that the information contained in the letter of 5 th October 2010 was inadequate and, even if it was received, was insufficient to allow the appellant to make adequate representations.[30]The difficulty with this argument is that it was open to the appellant to have made rather more forceful representations to that effect at the time. Even if she did not receive the letter of 5 th October 2010, the letter of 12 th October 2010 alerted her to the issue. She could squarely have denied that she had ever stolen money from a male service user and have asked that further information be provided so that she could effectively reply to the allegation. The letter of 5 th October 2010 did not have much more useful information in it than the letter of 12 th October 2010. The ISA did not have any other information beyond that contained in the letter of 5 th October 2010 but the Metropolitan Police might well have done. One reason for the appellant not making a request for further information could have been that it was feared that it would be damning rather than helpful. We are not satisfied that the finding in relation to Mr X was made in a procedurally unfair way.[31]In any event, as we have pointed out, the appellant could simply have appealed to the Upper Tribunal on the ground that she had not stolen anything from Mr X, which would have required the ISA to consider the adequacy of its evidence and the logic of its decision on this issue.[32]As the Upper Tribunal’s power to hear appeals on simple issues of fact and the consequences thereof could have been pointed out more clearly to the parties earlier, we would have adjourned had the question whether there had been thefts from Mr X been an important issue. However, Ms Ward made it plain that the ISA would include the appellant in the adults’ barred list on the basis of the thefts from Mrs M alone. Mr Baldwin realistically accepted that, if he failed to show that the thefts from Mrs M did not amount to “relevant conduct”, he would be unable to challenge such a decision if the reasoning was otherwise the same as before. In these circumstances, there is no virtue in us considering the issue of fact as to whether the appellant stole money from Mr X or the questions of law as to whether the evidence before the ISA was sufficient to support its conclusion in relation to Mr X or whether its reasoning on that issue was flawed and we decline to do so. Conclusion[33]Accordingly, we do not find the ISA to have made either a mistake of law or a mistake of fact and we confirm its decision pursuant to section 4(5) of the 2006 Act. Mark Rowland Judge of the Upper Tribunal H. Levenson Judge of the Upper Tribunal J. A. Cross Member of the Upper Tribunal 20 February 2013

Cited in 2 later judgments