IN THE UPPER TRIBUNAL			Case No  V/693/2010
ADMINISTRATIVE APPEALS CHAMBER
	
Before: 	His Honour Judge David Pearl
His Honour Judge Simon Oliver
Ms Caroline Joffe

Attendances:	

For the Appellant:	SJB in person

For the Respondent	Mr S Grodzinski QC

Decision:  Permission is granted to appeal, but the appeal is dismissed.
	
	REASONS FOR DECISION

Introduction

1.	On 28 March 2008 SJB was found guilty in the Ipswich Crown Court of an offence of sexual activity with a child under 18 years in an abuse of a position of trust (section 16 Sexual Offences Act 2003). On 15 May 2008, sitting at Peterborough Crown Court, the Judge sentenced SJB to a Community Order with a supervision requirement for two years. In addition he was disqualified from working with children, under section 28 of the Criminal Justice and Court Services Act 2000. He was also required to comply with Part 2 of the Sexual Offences Act 2003 for five years.
2.	The facts were summarised by Mr Justice Griffith Williams when the appeal against the imposition of the Disqualification Order was considered by that Court. The Judge said: 
“The Appellant was a full time teacher at a school in Suffolk. The 17 year old victim was a full time boarding pupil at that school. On an evening in March 2007 there was a social night in the boarding house where the victim lived. The Appellant was working behind the bar. During the course of the evening the victim drank six glasses of wine and described herself as very drunk. She recalls at some point falling over. Her next recollection was being in her room and kissing the Appellant. He put his tongue inside her mouth and she responded by kissing him back.”
3.	As a result of the conviction and the associated Disqualification Order, on 25 July 2008, the Secretary of State for Children, Schools and Families wrote to SJB informing him that he had made a direction under section 142 of the Education Act 2002 and Regulation 8 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 prohibiting SJB from carrying out work to which section 142 applied on the grounds that he was unsuitable to work with children. The consequence of this direction was that SJB's name was included on “List 99”.
4.	In the letter of 25 July 2008 it was noted that if the relevant court findings were successfully overturned, then SJB should inform the Secretary of State at once. There was a possible right of appeal against the decision of the Secretary of State to the Care Standards Tribunal which needed to have been brought within three months of 25 July 2008. No appeal was ever lodged to the Care Standards Tribunal.
5.	SJB appealed the Disqualification Order to the Court of Appeal. On 17 October 2008 the Court of Appeal (Lord Justice Toulson, Mr Justice Griffith Williams, and His Honour Judge Brodrick) (reported as [2008] EWCA Crim 2466) quashed the Disqualification Order and, in its place, made a Sexual Offences Prevention Order under section 104 of the Sexual Offences Act 2003 whereby it was ordered that until further order he be prohibited from engaging in any work (paid or unpaid) involving unsupervised contact with female persons under the age of 18 years.
6.	SJB did nothing to inform DCSF of the decision taken by the Court of Appeal on 17 October 2008. 
7.	The duties of the Secretary of State were transferred to ISA in October 2009. There was a process (called migration) whereby   those persons whose names were on “List 99” were transferred to the new Children's Barred List. 
8.	On 20 November 2009, SJB received a letter from an ISA Determination Case Worker enclosing a Guidance Note which dealt with issues relating to the transfer onto the new Children’s Barred List and the Adult’s Barred List of those people who were listed on the old lists, in particular in relation to SJB, “List 99”. 
9.	The letter dated 20 November 2009 referred back to the letter of 25 July 2008 sent by the DCSF confirming his inclusion on “List 99” on the grounds of unsuitability to work with children. The letter dated 20 November 2009 also stated that he had an opportunity to make representations as to why he should be removed from the List and that if he wished to make representations he should do so within 8 weeks of receiving the letter, and that if he did not make any representations his name would remain on the List.
10.	It was only then that SJB contacted ISA, first by telephone on 22 December 2009 and subsequently by letter dated 29 December 2009. 
11.	ISA then wrote to him on 15 January 2010. That letter reads as follows: 
“Thank you for your letter dated 29th December 2009 enclosing a copy of the paper work from the Court of Appeal relating to the replacement of the original Disqualification Order with a Sexual Offences Prevention Order…The representations made in your letter are outside the scope of those that can be taken into consideration for inclusion. The replacement of the Disqualification Order with a Sexual Offences Prevention Order does not negate the circumstances of the conviction in 2008, for which the Department of Children, School and Families (DCSF) originally confirmed on the 28th July 2008 your inclusion on List 99…As a result, your name will remain on the Children’s Barred List for the reasons set out in our letter of 20 November 2009.”
12.	SJB then sought permission to appeal to the Upper Tribunal serving the requisite form, UT10, dated 14 March 2010 against the decision of the Independent Safeguarding Authority (ISA) dated 15 January 2010 not to remove his name from the Children Barred List. 
13.	Such an appeal can only be made with the permission of the Upper Tribunal and may only be made on the grounds either that the ISA has made a mistake of fact upon which the decision was made or that it has made an error of law.

Legal Framework

14.	Before considering the merits of this appeal it is necessary to set out in detail the legislative framework within which both the Secretary of State and the ISA operate, because this appeal is governed by the transitional provisions which apply to those persons who were on “List 99” but subsequently migrated to the Children's Barred List.
15.	We deal first with the basis upon which SJB was placed on the “List 99” under regulation 8(2).This was twofold.
16.	First, the regulation applies as a result of a conviction. Section 16 of the Sexual Offences Act 2003 when read together with section 21 of that Act states that a person aged 18 or over (A) commits an offence if he intentionally touches another person (B), the touching is sexual and that person A is in a position of trust in relation to person B. A position of trust includes person A looking after persons (including person B) under 18 who are receiving education at an educational institution.
17.	A person who has been found guilty of an offence under section 16 of the Sexual Offences Act falls within the scope of regulation 8 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 (‘the 2003 Regulations’) by virtue of Condition D3 (Schedule 2 para 6). 
18.	A Disqualification Order was made in this case by reason of section 26 of the Criminal Justice and Court Services Act 2000. The section provides that if an offender is sentenced by the Crown Court to a term of imprisonment of 12 months or more the court must order the offender to be disqualified from working with children in all but exceptional circumstances. If the court does not impose a sentence of 12 months or more it may make a disqualification order but is not obliged to.
19.	 A person who has been made the subject of a Disqualification Order also falls within the scope of regulation 8 by virtue of Condition B(a) (Schedule 2 para 2). 
20.	Regulation 8(3) states:
“This regulation does not apply if, in relation to an offence, the Secretary of State knows that the court, having considered whether to make a disqualification order, decided not to.”
21.	Thus, SJB satisfied two conditions for automatic inclusion on “List 99”, namely Condition B and Condition D3.
22.	Disqualification Orders were repealed by section 63 and Schedule 10 of the Safeguarding Vulnerable Groups Act 2006 which were brought into force by the Safeguarding Vulnerable Groups Act 2006 (Commencement No. 6, Transitional Provisions and Savings) Order 2009 [SI 2009/2611] with effect from 12 October 2009. Whilst not directly relevant to our decision, it is worth noting that the Court of Appeal considered the effect of the abolition of section 28 of the Criminal Justice and Court Services Act 2000 in Attorney-General’s Reference (No 18 of 2011) [2011] EWCA Crim 1300. With effect from 12th October 2009, a Crown Court Judge is not required to make a Disqualification Order under s 29A because the Safeguarding Vulnerable Groups Act 2006 imposes an automatic bar according to offence rather than sentence.
23.	The power to revoke a section 142 direction is covered by the 2003 regulations. First, where a section 142 direction was given because a Disqualification Order was made, by reason of regulation 9(4) of the 2003 regulations, the direction must be revoked if the Disqualification Order ceases to have effect. This would seem to cover a Disqualification Order quashed by the Court of Appeal.
24.	Second, by reason of regulation 8A, if a section 142 direction has been made because condition D (and others) is satisfied, the Secretary of State must afford the person against whom the direction is made the opportunity to make representations and, where appropriate, submit evidence within two months of the date on which notice of that opportunity is served on the person against whom the direction is made. If, on reviewing the evidence submitted, it appears the Secretary of State that the person is not unsuitable to work with children, the Secretary of State must revoke the section 142 direction.
25.	The Secretary of State’s powers and duties were transferred to the ISA by virtue of the Safeguarding Vulnerable Groups Act 2006. Cases such as SJB’s were covered by the Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008 [SI 2008/473] (‘TPO’) which came into force on 7 April 2008 but only applied to SJB with effect from the letter of 20 November 2009. The TPO makes transitional provisions in relation to those subject to existing restrictions relating to working with children or vulnerable adults.
26.	As acknowledged by Mr Grodzinski, the TPO does not qualify as a statutory instrument that demonstrates clarity of language.  The relevant provision is article 2 of the Order which is headed: “inclusion in the children's barred list: persons disqualified from working with children”. 
27.	 SJB qualifies under article 2 (1)(iii) because he was made subject to a direction under section 142 on the grounds that he was unsuitable to work with children and he did not have representations or an appeal or review outstanding pursuant to article 2(1)(b) as at 20 November 2009. 
28.	As a result, the ISA was obliged to include SJB in the Children's Barred List and provide him with an opportunity to make representations as to why he should be removed from that list (article 2(4)) with a right of appeal to the Upper Tribunal against a decision not to remove him from the list (article 2(6)).
29.	The scope and extent of representations available to SJB to make to the ISA are set out in article 2(5)(b) of the TPO, which adds paragraph 16(1A) to Part 3 of schedule 3 to the Safeguarding Vulnerable Groups Act 2006:
“(1A)    a person to whom article 2(2)(b) of the Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008 applies may make representations as to why he should be removed from the children's barred list in accordance with that provision only in relation to his engaging in regulated activity relating to children which does not constitute work in a regulated position within the meaning of section 36 of the Criminal Justice and Court Services Act 2000”(emphasis added)
30.	We agree with Mr Grodzinski’s submission that because the restrictions placed on an individual by reason of a placement on the Children's Barred List are broader and wider in context than the restrictions under section 142 of the Education Act, a person is able to make representations only as to the wider bar and not the whole bar. 
31.	This interpretation would appear to accord with the ordinary meaning of the words “only in relation to” and fits in with the policy consideration that the TPO is designed to cover; namely so as to prevent individuals appealing again a decision against which they had a right of appeal under the previous legislation which they chose not to exercise or had a right to appeal which had already been considered by the Tribunal.
32.	The right of appeal to the Upper Tribunal against the decision not to remove an individual from the Children's Barred List is in accordance with section 4 of the Safeguarding Vulnerable Groups Act 2006. Section 4(2) provides that an appeal may be made only on the grounds that the ISA has made a mistake on a point of law or in any finding of fact upon which the decision was based.

Submissions

33.	This is an application for permission to appeal. The first matter that we need to decide on is whether to grant permission. We have decided that the appropriate approach to take in this case is as suggested by Sullivan J (as he then was) in the case of The Queen on the Application of Vetterlein v Hampshire County Council and Hampshire Waste Services Ltd [2001] EWHC Admin 560. In that case, Sullivan J said: 
"…I am satisfied that all the arguments open to the claimants on matters of fact and law have been placed before the Court. In the circumstances it would be wholly artificial to consider the by now academic question: is the claimant's case arguable? …I am in a position to determine the substantive application for judicial review on its merits." 
34.	Applying this approach, we therefore grant permission.
35.	It is the ISA's case in this appeal that given that there were no outstanding representations, appeal or review (as provided for in article 2(2)(b) of the TPO) it had no choice but to ‘migrate’ SJB onto the new Children's Barred List and that, as a consequence the only legal right available to SJB in 2009 was to make representations against the elements of the wider bar. The ISA argue that they have committed no error of law in undertaking the migration and rejection of the representations made.
36.	In relation to the decision of the Court of Appeal to quash the Disqualification Order, the ISA state that this was a matter which should have been brought to the attention of the Secretary of State soon after 17 October 2008 and in any event before 20 November 2009. The ISA say that it is not able to consider any representations concerning the quashing of the Disqualification Order because those are matters that go to the terms of the original bar and which they are prevented from considering by law.
37.	The ISA argue that it was the responsibility of SJB to draw to the attention of the Secretary of State the decision of the Court of Appeal and it is speculation as to what may have happened as a result of the Secretary of State having that information. The ISA argue further that SJB’s right to seek a review of the decision at any time (as existed under the former provisions) was lost when the TPO provisions were applied to him on 20 November 2009. 
38.	The ISA states that the question of fairness of the procedures is not a matter to be determined in this appeal – if thought appropriate it would be something to consider by way of judicial review. Likewise, the disparity between the pre- and post-transfer regimes is not for this appeal to consider and rule upon.
39.	SJB contends that the decision of the Court of Appeal should have been communicated to the Secretary of State in the same way that the conviction in March 2008 was conveyed to the Secretary of State. He told us that he had no reason to believe that the Court of Appeal decision had not been drawn to the attention of the Secretary of State. He accepts however that he tried to put matters out of his mind from October 2008 and that, in hindsight, he should have sent the information to the Secretary of State himself. He states that it was only as a result of receiving the letter of 20 November 2009 that he sent the Court of Appeal documentation to the ISA. Notwithstanding the fact that the ISA only saw the decision of the Court of Appeal in very late 2009, SJB states that he believes that the decision of three judges in the Court of Appeal should override the decision of a “Government backed department”. 
40.	SJB submits to us that because his case was ‘migrated’ without consideration being given to the Court of Appeal decision, he has lost the ability to argue that, in light of the terms of the SOPO, he should not have been barred in the first place, and that the SOPO gives adequate and sufficient protection.
41.	SJB does not seek to go behind the SOPO put in place by the Court of Appeal. He feels that that order provides sufficient protection and that the prohibitions placed upon him by his inclusion in the Children's Barred List are excessive and contrary to the views of the Court of Appeal which quashed the wider Disqualification Order in favour of a narrower SOPO.

Discussion.

42.	It is accepted by SJB that he did not notify the Secretary of State of the Court of Appeal's decision to quash the Disqualification Order in October 2008. He should have done so. It is understandable that he would have thought that the Court of Appeal's decision would have been communicated to the Secretary of State as his conviction had been, and the obvious lack of joined up communication between the appropriate authorities and organisations is of concern to us. SJB said that he had not appreciated that there was a clear distinction between the Secretary of State and the ISA. He thought that the latter was a revised version of the former.
43.	Whilst it is speculation to infer what the Secretary of State may have decided, if he had been told that the Disqualification Order had been quashed, it is clear (by reason of Regulation 9(4) of the 2003 regulations) that if the Disqualification Order (Condition B) was the only Condition, the section 142  listing would have been revoked. However, in SJB’s case, there was also the D3 Condition (section 16 Sexual Offences Act 2003) and so revocation would not have followed just because the Disqualification Order was quashed. Again, we cannot speculate on what the Secretary of State may have decided in relation to the section 142 listing with the D3 Condition and SOPO in place, but Mr Grodzinski acknowledged that gender specific section 142 directions, whilst uncommon, were nevertheless sometimes the appropriate Direction to make. 
44.	Had the Secretary of State made a gender specific section 142 direction it is unclear as to how this would have been treated by the ISA when SJB was ‘ migrated’ onto the new list in 2009. The Children’s Barred List does not permit conditions, and to that extent it differs from the “List 99” and is similar to the former PoCA and PoVA lists. 
45.	We raised with Mr Grodzinski whether or not SJB had been prevented from exercising his Article 6 rights by being unable to challenge the ISA’s decision not to consider the Court of Appeal's order. Mr Grodzinski submitted, and we agree, that the right to challenge the making of any order arose under the old Scheme once the letter of July 2008 had been written and soon after the decision of the Court of Appeal. We note that there was a right of representation to the Secretary of State at that time. Former rights of appeal to the First-tier tribunal (the successor to the Care Standards Tribunal) continue to apply until one of the events as set out in Articles 5(5), 6(5) or 7(4) occurs. One of these events, being included in the new barred list, extinguishes his right of appeal to the First-tier Tribunal.
46.	We are aware that the Supreme Court has looked at the ISA’s barring regime in R (on the application of G) v The Governors of X School [2011] UKSC 30 (published 29 June 2011). We are also aware that the High Court made a declaration of incompatibility under the Human Rights Act 1998 in R (on the application of Royal College of Nursing and others) v Secretary of State for the Home Department and another) [2010] EWCH 2761 (Admin) that the automatic barring of an individual without the right to make representations prior to listing was incompatible with EConHR. Neither of these cases apply to SJB as he had the right to make representations up to November 2009.
47.	Regulation 8(3) of the 2003 regulations does not assist SJB either, because the requirements of that provision are both that there has to be a positive decision by a court not to make a Disqualification Order and that the Secretary of State has to be aware that there has been that consideration.
48.	The Tribunal is aware of course that if the Secretary of State had been informed that the Disqualification Order had been quashed by the Court of Appeal and replaced with an SOPO, it would still have been open to the Secretary of State to make a direction against SJB under section 142 of the Education Act on the grounds of ‘misconduct’.
49.	Applying the provisions of the TPO it is our finding that the ISA is bound by the provisions of article 2 of the TPO and so is limited in what matters the representations can address. Accordingly, the decision to “migrate” the Appellant onto the Children’s Barred List was a decision in accordance with the law, and accordingly the appeal must fail and be dismissed.

Concluding Remarks.

50.	We understand that pursuant to paragraph 18 of schedule 3 to the Safeguarding Vulnerable Groups Act 2006, the ISA is able to review a person's inclusion on a barred list. A person may only apply for a review of their inclusion with the permission of the ISA and that permission is only granted if the ISA thinks that the person's circumstances have changed since he was included on the list and the change is such that permission should be granted. Whilst it is normal that this application for permission can only occur after the minimum barred period in respect of that person has expired (10 years in the case of this SJB), we also understand that the legislation does not prohibit the ISA granting permission of its own volition where the minimum barred period has not expired. We acknowledge that such permission would only be granted in exceptional circumstances such as where the barring decision was probably wrong as a consequence of the ISA being provided with inaccurate information or following a change of circumstances. Indeed we understand that an example of such a case would be where a person, subsequent to the bar, successfully overturned a conviction on appeal
51.	We believe that it could be arguable in this case that the ISA was provided with inaccurate information when the details of SJB were provided to it by the Secretary of State because the Secretary of State was unaware that the Disqualification Order had been successfully quashed on appeal.
52.	We understand that the SOPO will remain in force until further order and that the group of individuals which the Court of Appeal considered were at risk by SJB's behaviour are protected. It does not seem logical to us that SJB is made the subject of a wider bar by his ‘migration’ to the Children's Barred List when the Court of Appeal was clearly satisfied that the protection needed was adequately put in place by the SOPO.
53.	Whilst the provisions of the law require that this appeal has to be dismissed, it could be that the dismissal of the appeal does not address the justice of SJB's case. We would invite the ISA to consider exercising its exceptional powers to give permission to review SJB's inclusion before the minimum barred period has expired and to take into account in granting that review the decision of the Court of Appeal. 
54.	Should the ISA decide not to use its exceptional powers, we are aware that the ISA is going to be merged with the CRB to form the Disclosure and Barring Service as a result of the Protection of Freedoms Bill currently before Parliament. Clause 70 of the Bill once enacted is intended to insert a new paragraph 18A into Schedule 3 of the Safeguarding Vulnerable Groups Act to enable individuals to apply for a review of the barring decision at any time. Thus, SJB may well have a remedy in the near future.

His Honour Judge David Pearl
His Honour Judge Simon Oliver
Ms Caroline Joffe
	
15th July 2011