A Teacher v Disclosure and Barring Service & Anor [2023] UKUT 39 (AAC)

IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Between
A TeacherAppellant
IN THE MATTER OF AN APPEAL FROM THE DISCLOSURE AND BARRING SERVICE
AND IN THE MATTER OF AN ORDER UNDER RULE 14 OF THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008
- v –
Between
Disclosure and Barring ServiceRespondentTeaching Regulation AgencyRespondentBefore: Upper Tribunal Judge WardHearing Hearing date: 29 November 2022 (private hearing) (with subsequent written submissions)Appellant: In person for in personSecond Respondent: Rhys Hadden, instructed by Government Legal DepartmentCarine Patry KC attended for First Respondent, with a watching brief, and made no submissions.DECISIONDate 2023-02-01
[1]The decision of the Upper Tribunal is that if the Secretary of State publishes a decision in the form of the Summary Decision (as described below), either as it stands or with addition of wording to indicate there was no suggestion that there had been any physical intimacy, there would not thereby be a breach of the Upper Tribunal’s Rule 14 order.[2]Save as in [1], the Upper Tribunal has no jurisdiction over the Secretary of State’s decision to publish.[3]Any application by a third party to be sent a copy of the Upper Tribunal’s decision dated 10 February 2022 must be referred to a judge for directions.

REASONS FOR DECISION

[1]This decision principally concerns how far an order made by the Upper Tribunal under rule 14(1) of its Rules of Procedure (“the order”) extends. The order was made by a panel which, sitting in public, had heard the appellant’s appeal against a decision by the first respondent (“DBS”) which had added her name to the adults’ barred list and the children’s barred list and, by a decision dated 10 February 2022, had allowed it. The Upper Tribunal concluded that the decision contained mistakes of law and remitted the matter to the DBS.[2]The order was in the following terms:
“The Upper Tribunal of its own motion orders under rule 14 that there should be no disclosure or publication of any matter likely to lead members of the public to identify the appellant, her children or the pupil involved in the matters the subject of the present case without the permission of a judge of the Upper Tribunal.”
[3]The Upper Tribunal’s reasons for it were expressed in the following terms:
“The order under rule 14 is made because the case involves a pupil who was a minor at the time of the events in question and because he and the appellant’s children (two of whom were likewise minors at the time of the incidents) have a reasonable expectation of privacy.”
[4]No application was made by the DBS for the order to be discharged or varied.[5]The appellant was a teacher and accepted a caution for an offence involving the pupil. The pupil is now a young adult. He is entitled to anonymity pursuant to s.1 of the Sexual Offences (Amendment) Act 1992 during his lifetime. There has been no suggestion or evidence in the Upper Tribunal proceedings that any physical intimacy was involved.[6]The appellant has three children, whom I shall refer to in order to preserve anonymity as A, B and C. A and B are young adults (though B was a minor at the time of the incidents). C was, and still is, a minor.[7]At the time of the Upper Tribunal proceedings, proceedings were also pending before the second respondent (“TRA”). The TRA’s Professional Conduct Panel (“PCP”) heard evidence and submissions and concluded that the appellant was guilty of unacceptable professional conduct and conduct that may bring the teaching profession into disrepute. The appellant did not appeal.[8]The Secretary of State considered the PCP’s recommendation and decided to impose a Prohibition Order, with the possibility of a review after 5 years.[9]There is a statutory requirement to publish such decisions (see below). The TRA in preparing to do so was mindful of the Upper Tribunal’s order and submitted what it was proposing to publish, which included redactions of some matters, to the Upper Tribunal, seeking confirmation that its proposal would not breach the order. At around the same time, the Upper Tribunal received correspondence from the appellant in which she expressed her concern that what the TRA was proposing to publish would risk harm to her daughters, in particular to A, who has some mental health issues (details of which are not needed in this decision) which caused the appellant concern that she might be at risk of suicide on reading the Secretary of State’s decision unless it was anonymised or substantially redacted, and to C, who the appellant feared would be at risk of bullying.[10]On a preliminary consideration I declined to provide the confirmation sought by the TRA and gave directions for submissions and, in due course for a hearing, if the parties proved unable to resolve their differences by negotiation. A much-reduced decision (“the Summary Decision”) has been prepared during that period, with further redactions. It does however continue to name the appellant, whose surname is not a common one and is shared by her children. In consequence, not all differences were resolved and the hearing was held, in private on the application of the solicitors for the TRA, on the basis that if it was not, there was a risk of defeating the Upper Tribunal’s consideration of the issues.[11]The DBS has remained neutral. An application, made at a somewhat late stage, for it to play an active part in order to allow the issues around rule 14 orders in barring cases to be considered more broadly was refused.

Regulation of the Teaching Profession

[12]The relevant primary legislation is Education Act 2002, ss141A-141E and Schedule 11A. By s.141B, the Secretary of State may investigate a case when he receives an allegation that a relevant person may be guilty of unacceptable professional conduct or conduct that may bring the teaching profession into disrepute or has been convicted of a relevant offence. If he finds there is a case to answer, he must decide whether to make a prohibition order. He is required by s.141C to keep a list containing, among other matters, the names of persons subject to a prohibition order, which is required to be available for inspection by the public. Schedule 11A requires the Secretary of State to make regulations which (by para 4) may make provision about the publication of information relating to the case of a person to whom a prohibition order relates.[13]The relevant secondary legislation is the Teachers’ Disciplinary (England) Regulations (SI 2012/560). Reg.8(5) provides that the decision of the Secretary of State following the determination of a PCP must be published. Reg. 17 confers a right of appeal to the High Court. By reg.15:
“(1) The Secretary of State must publish the information set out in paragraph (2) in relation to a teacher to whom a prohibition order relates— (a) on a website which the Secretary of State maintains on the internet; or (b) in such other manner as the Secretary of State sees fit. (2) The information to be published is— (a) the teacher's name, date of birth and Teacher Reference Number; (b) the name of the institution at which the teacher was last employed or engaged to carry out teaching work or if the teacher was employed by a local authority, the name of the local authority; (c) the dates on which the prohibition order was made and takes effect; and (d) the reasons for making the order.”

Human Rights Act 1998

[14]Section 6(1) of the 1998 Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention i.e. the European Convention on Human Rights (“ECHR”) right (subject to s.6(2)). By way of background only (in view of the conclusion I have reached), the Articles potentially requiring to be addressed in connection with a decision to publish would appear to be Articles 2, 3, 8 and 10.

The Upper Tribunal’s powers

[15]The Upper Tribunal was established by the Tribunals, Courts and Enforcement Act 2007. The relevant enabling power to make rules (sch.5, para 11(1)) (via s.22) provides that:
“(1) Rules may make provision for the disclosure or non-disclosure of information received during the course of proceedings before the First-tier Tribunal or Upper Tribunal.”
[16]Rule 14(1) is in the following terms:
“(1) The Upper Tribunal may make an order prohibiting the disclosure or publication of— (a) specified documents or information relating to the proceedings; or (b) any matter likely to lead members of the public to identify any person whom the Upper Tribunal considers should not be identified.”
Like other provisions of the Rules, it falls to be exercised with regard to the “overriding objective” in rule 2.[17]It is also necessary to refer to the 2007 Act, s.25:
“25 Supplementary powers of Upper Tribunal (1) In relation to the matters mentioned in subsection (2), the Upper Tribunal– (a) has, in England and Wales or in Northern Ireland, the same powers, rights, privileges and authority as the High Court, and (b) has, in Scotland, the same powers, rights, privileges and authority as the Court of Session. (2) The matters are– (a) the attendance and examination of witnesses, (b) the production and inspection of documents, and (c) all other matters incidental to the Upper Tribunal's functions. (3) Subsection (1) shall not be taken– (a) to limit any power to make Tribunal Procedure Rules; (b) to be limited by anything in Tribunal Procedure Rules other than an express limitation.”

The parties’ submissions

[18]Mr Hadden submits in summary that:(a) The jurisdiction of the Upper Tribunal, both in relation to an order under r.14(1)(b) or its inherent jurisdiction, is limited in effect to ensuring that the TRA does not publish anything that could lead to jigsaw identification of the individuals covered by the anonymity order in connection with the DBS appeal.(b) The Summary Decision prepared by the TRA on behalf of the Secretary of State does not breach the terms of the anonymity in the DBS appeal. It has deleted and/or redacted any detail which could lead to jigsaw identification of the appellant’s children, the pupil concerned or otherwise connect the appellant to the DBS proceedings.(c) The decision maker on behalf of the Secretary of State has considered the evidence, correspondence and submissions supplied by the appellant and concluded that it remains in the public interest for her to be personally identified and that this would not amount to a breach of the rights of her or her children under the ECHR. While there had been a case in which a teacher’s name had not been published, that was because in that case, unlike the present, it had been concluded that the ECHR would be infringed by unredacted publication. While is it not proposed to publish the name of the school in the present case (despite the legislative requirement to do so – see [13]) – that is principally in order to protect the identity of the pupil, as required by s.1 of the 1992 Act (see [5]).(d) The appropriate remedy for the appellant to challenge the Secretary of State’s duty to publish the information required by law (which incudes her name) would be a claim for judicial review in the Administrative Court, not satellite litigation before the Upper Tribunal.[19]The appellant’s principal submissions:(a) acknowledged that she was aware there was a jurisdictional issue but drew on a wide range of non-legal sources to encourage the Upper Tribunal, if it could within the relevant authorities, to find a way to prevent publication unless there was either anonymisation or references to her motivation were removed;(b) indicated that she was aware of the possibility of judicial review but in view, in particular, of the risk of having to pay the TRA’s costs if she was unsuccessful, which she could ill afford, could not go down that route;(c) impressed upon the Upper Tribunal the seriousness of her concern for her daughters by reference to the available evidence, which she submitted was amply sufficient to demonstrate the reasons for that concern; and(d) accepted that there was nothing in the Summary Decision which would enable a person reading it to make a link to the Upper Tribunal’s decision.

Consideration of the issues

[20]The Upper Tribunal is a body with limited jurisdiction. Its jurisdiction is conferred by statute – to a large degree by the 2007 Act, but by some other Acts also, including (relevantly for present purposes) the Safeguarding Vulnerable Groups Act 2006. No statute confers jurisdiction on it in relation to decisions by the Secretary of State, acting on recommendations of the PCP of the TRA. As has been shown, appeals against prohibition orders go to the High Court. Challenges to associated matters, including as to what is to be published following the making of a prohibition order will go to the High Court, a court whose jurisdiction is not limited to what statute may confer upon it, by way of an application for judicial review.[21]There is no doubt that the Upper Tribunal has jurisdiction to deal, subject to the terms of the 2006 Act, with appeals against decisions by the DBS. It can for the purposes of those proceedings make orders under r.14. The question is whether an order made for such purposes can bite in relation to contexts other than those proceedings – in the present case, the operation of the teachers’ professional regulation proceedings, conducted under wholly different statutory arrangements.[22]Mr Hadden submits that it cannot. His diligent research has uncovered a number of references in decisions of other Chambers of the Upper Tribunal, in contexts far removed from the present.[23]He invites me to adopt an approach similar to the obiter remarks of Upper Tribunal Judge Herrington in Salih v Pensions Regulator [2018] UKUT 338 (TCC). In that casethe Pensions Regulator had determined that a prohibition order be made in respect of Mr Salih, which the latter referred to the Upper Tribunal. Mr Salih made a number of applications for privacy, among which was that the Regulator be constrained from publishing Mr Salih’s prohibition pending the outcome of the hearing of his reference. Sections 66 and 67 of the Pensions Act 2004 require the Pensions Regulator to keep a register of all persons who are prohibited under the relevant legislation and makes controlled provision for public inspection. Mr Salih’s applications for privacy failed on the merits in any event, thus it was obiter when Judge Herrington observed at [40] that:
“40. As regards the particulars which appear on the register of prohibited persons maintained by the Regulator pursuant to s 67 (1) PA 2004, although I do not have to determine this matter in this case because of my views of the overall merits of the Privacy Applications, I very much doubt whether the power in Rule 14 extends so as to override the statutory duty on the Regulator to maintain that register and allow access to the particulars on it in the manner prescribed by s 67, bearing in mind the public interest in those who have responsibility for appointing trustees of occupational pension schemes being able to ensure that they do not appoint somebody who is prohibited from acting as such.”
Mr Hadden submits that the legislation concerning teacher misconduct embodies Parliament’s view of the public interest and, for similar reasons to those articulated by Judge Herrington in Salih, where there is also a compelling public interest element, r.14 should not be capable of being used to override a statutory duty.[24]However, Salih needs to be contrasted with Arch Financial Products LLP and others v Financial Services Authority (FS/2012/20) where it appears that the existence of statutory provisions requiring a measure of publication was not seen as precluding the exercise of the Upper Tribunal’s powers under Rule 14. The relevant statutory provisions were Financial Services and Market Act 2000, s.391 which as it stood at the time provided:
“(4) The Authority must publish such information about the matter to which a [decision notice or ] final notice relates as it considers appropriate. … (6) But the Authority may not publish information under this section if publication of it would, in its opinion, be unfair to the person with respect to whom the action was taken or prejudicial to the interests of consumers.”
Commenting on the amendment by which the words in square brackets above were included,

Judge Herrington observed at [22] (emphasis added):

“Parliament has now decided that the fact that proceedings are pending in the Tribunal should no longer be a bar to publishing the decision notice, subject to the exercise by the FSA of its discretion not to publish in Section 391(6) and the exercise by this Tribunal of its discretion under Rule 14.”
[25]Addressing a submission by Counsel for the FSA (Mr Hunter)

the judge observed at [24]:

“I do not accept that the FSA is obliged to publish once it has decided that publication would not be unfair. It is clear from Section 391(6) that the obligation is to publish “such information about the matters to which the notice relates as it considers appropriate.”
So for example, it could confine publication to certain details about the decision notice such as the fact of the decision, the rules that the FSA has decided have been breached and the penalties it has decided to impose without going into any further detail about the basis on which those findings have been made. It could decide to delay publication, for example pending the completion of regulatory proceedings in other cases, or it could decide that it was appropriate not to publish anything at all indefinitely. It seems to me that the discretion in this regard is wider than that submitted by Mr Hunter.”[26]Notwithstanding the suggestion that the FSA could decide that it was appropriate not to publish anything at all indefinitely, I do not read his remarks, read as a whole, as denying that a statutory duty exists (albeit one qualified by the discretion which he held the FSA to have under s.391(6)) or that it was the absence of any statutory duty that was the basis for the view at [25] that publication of the FSA’s decision was still subject to, inter alia, the exercise by the Upper Tribunal of its discretion under Rule 14. Contrary to Mr Hadden’s submissions, I do not consider that the logic of this part of the decision is affected by the specific provisions of Schedule 3 to the UT Rules that were additionally in play in that class of case, nor in view of what I say below regarding the possibility of a r.14 order applying to non-parties does it necessarily make any difference that Parliament had decided that the Upper Tribunal should be the means of challenging the administrative decisions of the FSA.[27]Mr Hadden further submitted that the reach of the order should be confined to the Upper Tribunal’s own proceedings and for that reason, it was sufficient to do as the TRA had done in the Summary Decision, namely to remove anything which would identify the appellant as being the person referred to in the Upper Tribunal’s decision. He invited me not to follow the obiter remarks of the panel (Lane J and UTJ O’Callaghan) in Cokaj (Anonymity Orders: Jurisdiction and Ambit) [2021] UKUT 202 (IAC) at [37] to the extent that they suggested that the power in r.14(1)(b) ”extends beyond the ambit of the proceedings”, submitting when pressed that they were incorrect.[28]Mr Cokaj was in the process of applying to the Court of Appeal for permission to appeal against a decision of the Upper Tribunal. The Upper Tribunal had made a rule 14 order in respect of him, which a newspaper applied to have lifted. The Upper Tribunal, applying Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 concluded that it had jurisdiction to deal with “open justice” aspects of a case (such as the aspects before it), even though it had given its decision and if Mr Cokaj’s appeal were to proceed, a further application for anonymity would have to be made to the Court of Appeal. The Upper Tribunal went on to balance the competing rights under art.8 and art.10, coming down in favour of the latter. The brief discussion of rule14(1)(b) appears to have played no part in the Upper Tribunal’s reasoning.[29]It is true that r.14(1)(b) is not on its face qualified, but that does not preclude the need to consider the scope of the rule within the legislative context in which it sits, namely the rules applicable to proceedings of a body which is a creature of statute. It did not fall for consideration in Cokaj what ”the ambit of the proceedings” might be. It is possible to contemplate that, subject to consideration of such matters as how the order is brought to the notice of third parties and the detailed terms of the order, such an order is capable of applying to non-parties and that at least to that extent it could be said to “extend beyond the ambit of the proceedings”. But in my view, when its statutory context is considered, the power is given for use only in relation to the Upper Tribunal’s own proceedings.[30]Much the same is true of section 25 of the 2007 Act. The wording of the section itself is directed to specific matters, followed by a sweeping-up provision which catches only “all other matters incidental to the Upper Tribunal’s functions”, that is to say, it is not conferring additional functions on the Upper Tribunal. A similar argument follows from the cross-heading “Supplementary powers” (to which it is permissible to have regard as part of the “contextual scene”: R v Montila [2004] UKHL 50 at [36]). The powers are intended to “supplement” what the Upper Tribunal already has.[31]A similar view was reached by Upper Tribunal Judges Sinfield and Greenbank in Pierhead Drinks Ltd v Commissioners for Her Majesty’s Revenue and Customs [2019] UKUT 7 (TCC) at [30]. This was a case where an individual who had not been a party below sought to appeal because of certain comments the FtT had made in the course of its decision. The Upper Tribunal said:
“The first [difficulty] is that the UT does not have the same inherent jurisdiction as the High Court in this case. The relevant parts of section 25 TCEA provide that the UT has the same powers, rights, privileges and authority as the High Court in relation to the following matters: “(a) the attendance and examination of witnesses, (b) the production and inspection of documents, and (c) all other matters incidental to the Upper Tribunal’s functions.”
The matters in (a) and (b) clearly relate to the hearing of appeals, references and applications by the UT. In our view, the other incidental matters in (c) are similarly limited to the UT’s functions in relation to proceedings that are properly before it. If the UT does not have jurisdiction, e.g. because a person who is not a party has no standing to bring an appeal, then section 25 TCEA does not apply. Section 25 TCEA does not confer the High Court’s inherent jurisdiction on the UT generally or in all circumstances but is a more restricted provision that allows the UT to exercise the powers of the High Court in relation to matters over which the UT has jurisdiction under other provisions such as section 11 TCEA (right of appeal).”[32]I therefore conclude that the extent of the Upper Tribunal’s order must necessarily be confined to its own proceedings and that by issuing its decision in a form which (as is undisputed) contains nothing which would enable those who are referred to in the rule 14 order to be identified as being involved in the Upper Tribunal proceedings in which the order was made, the TRA would not be in breach of that order.[33]I need not dwell further on Salih and Arch, as it is not necessary to decide in this case what the position would be if, contrary to a rule 14 order, performance of a statutory duty unavoidably required to be made in terms which enabled the parties involved in the Upper Tribunal proceedings to be identified.[34]I was referred to the decision in R(Trinity Mirror plc) v Croydon Crown Court [2008] EWCA Crim 50; [2008] QB 770 but it concerned criminal proceedings and a different statutory regime and as in the present case there is no challenge to the r.14 order itself as I have indicated by this decision it is to be understood, I do not need to address Trinity Mirror further.[35]Mr Hadden provided, at my request, a note concerning the powers of the family courts to make anonymity orders. The position is complex but, having considered the note, I have not found anything about how the powers of the family courts are interpreted or how they exercise them which could be applied by analogy so as to assist the appellant in the present case.[36]I acknowledge that where the Upper Tribunal has made a rule 14 order in proceedings before it which precede the conclusion of professional regulatory proceedings, the regulator may have to adapt what they can publish in relation to their own decision (as has happened in this case) (the problem will not arise in those cases – possibly a minority - when the professional regulatory body makes its decision before any rule 14 order), but that is one consequence of the overlap of regulatory mechanisms and legal jurisdictions governing forms of professional misconduct and consequential safeguarding issues.[37]It follows from what I have written that there is no basis on which I can require the TRA to make those amendments to the Summary Decision which the appellant continued to seek before me (which Mr Hadden indicated were opposed), nor the amendment which I briefly canvassed in an attempt to assist the parties in reaching an agreed position and which is reflected in the terms of the decision at the head of these Reasons. That is something which the appellant will have to take up with the TRA or its lawyers if she wishes to pursue it.[38]On a practical level, as this decision is unable to change the position, the appellant may need time to engage as she sees fit with A, B and C (who are all in different places) concerning the TRA’s decision. An undertaking was sought by the Upper Tribunal from, and given by, Mr Hadden that if the Upper Tribunal’s decision went in favour of the TRA, the TRA would wait 21 days from the date of issue of the Upper Tribunal’s decision before publishing the Summary Decision in order to allow the appellant time to do so.[39]The parties are reminded of the terms of the r.14 order and of the direction dated 21 November 2022 restricting the bundle to being used by the parties and any legal representatives they may have in connection with the present proceedings and prohibiting onward dissemination.[40]I am sorry that the parties have had to wait for this decision. A new case number had to be allocated to the completed decision in order to minimise the risk of jigsaw identification of those covered by the r.14 order, an administrative step which unfortunately took longer than I had anticipated. C.G.Ward Judge of the Upper Tribunal Authorised for issue on 1 February 2023

Cited in 1 later judgment