IN THE UPPER TRIBUNAL	Case No.  V/1537/2012
ADMINISTRATIVE APPEALS CHAMBER

Before:	Upper Tribunal Judge Ward; Ms M Halstead and Ms J Funnell 
		(both specialist members of the Upper Tribunal)

Attendances:

For the Appellant:		No attendance or representation 

For the Respondent:	Ms Sarah Hannett, counsel, instructed by Treasury Solicitor

Decision:

The appeals are dismissed.  The decision of the respondent on 4 February 2013 did not involve a mistake on any point of law or in any finding of fact on which that decision was based.  The decision of 3 February 2012 did not involve the making of any such mistake which was material.  

REASONS FOR DECISION

1. The appellant appealed against two decisions:  

	(a) Decision of 3 February 2012 not to remove his name from the Children’s 	Barred List (it was removed from the Adults’ Barred List).

	(b) Decision of 4 February 2013 following a review under paragraph 18A of 	Schedule 3 of the Safeguarding Vulnerable Groups Act 2006 (“the 2006 Act”) 	to retain the appellant’s name on the Children’s Barred List.

2. The appellant has not had legal representation.  His grounds of appeal in relation to decision (a) were:

	Ground 1: The respondent did not have enough evidence to support its 	decision; and

	Ground 2: The respondent did not give adequate reasons for its decision.

3. On 6 September 2012 I gave permission to appeal against decision (a).  Following that, and having obtained further evidence, the respondent took decision (b).  When asked to provide an amended appeal and any written submissions in relation to decision (b) the appellant wrote that “I also feel that I have provided sufficient information on this matter in the past and have nothing new to say since I submitted my appeal to the Upper Tribunal last year.  Moreover, I have not changed my decision from when I spoke to the tribunal last year” (letter of 25 February 2013).  I subsequently directed that his appeal be treated also as being against decision (b), granted permission to appeal in respect of the latter decision also and directed that the appeal against decision (a) be stayed until resolution of the appeal against decision (b).

4. The matter was listed for oral hearing, albeit there was delay caused by the appellant’s unavailability.  He was sent notice of the hearing at the address he had provided to the Upper Tribunal.  At the time of the hearing there was no attendance by the appellant.  The mobile phone number he had provided was no longer operative.  After waiting some 20 minutes after the advertised start time the Upper Tribunal decided to proceed with the hearing.  Reasonable steps had been taken to notify the appellant of the hearing, he had previously had the opportunity to make further written submissions but said that he had nothing to add and it seemed likely that he was absent because there were no further points he wished to put to the Upper Tribunal.  The respondent had incurred the cost of attendance by counsel on the day.  It was in the interests of justice to proceed.  

5. The matter arose because on 5 November 2009 the appellant had been convicted on two charges of doing an act of cruelty to a child or young person under 16 years, contrary to Children and Young Persons Act 1933, section 1(1).  He was sentenced to (among other things) a period of 24 weeks imprisonment on each count, suspended for 18 months.  The victims of the acts concerned were his two children, then of primary school age.

6. It is also relevant to note that on 18 July 2003 the appellant had accepted a caution in respect of an allegation of battery against his then wife and that there had been a further incident of domestic violence which had come to the attention of the police, though without resulting in charges.

7. Convictions under section 1 of the 1933 Act fell within the mechanism known as “auto‑bar with reps” for which paragraph 2 of Schedule 3 of the 2006 Act (as it previously stood) provided.  On 21 September 2011 the appellant made representations in which he gave an account of the incident.  He said that following an episode of what he regarded as misbehaviour by his children

	“I was angry and threatened them initially with a belt but I used my bare hands 	instead to smack them on their legs and thighs [a] few times.”

He went on to give some family background which appears directed to deflecting the blame onto his ex‑wife and to suggesting that she had told untruths to strengthen her position in relation to the family difficulties which there were.

8. On 14 October 2009 a probation officer had compiled a pre‑sentence report on the appellant.  He had told the probation officer

	“that he removed his belt that was hanging on the rack and warned the 	children that he would hit them with it.  He said that he then put the belt aside 	and smacked the children on the legs with his hand.”

In discussion with the probation officer the appellant referred to the “not unusual” practice of parents in the country in which he had grown up to chastise their children using sticks and belts.  However he did not do this but commonly disciplined his children by “tapping” the top of their heads with his knuckles.  The probation officer noted that

	“there was a tendency for him to minimise the impact of his actions but on 	reflection accepted that he had caused injury.  [The appellant] did express 	remorse but this was more about his own predicament than recognition of any 	wrongdoing.  Although [the appellant] accepted limited responsibility he 	acknowledged that in the eyes of the law his behaviour is not acceptable and 	that he must now face the consequences of his actions.”

9. The probation officer set out the appellant’s personal relationships, noting that:

	“the previous caution for battery and evidence from police documents would 	suggest violent and aggressive/controlling behaviour in the context of personal 	relationships … It was my impression that [the appellant] was somewhat rigid 	in his thinking and would persist with his own view rather than contemplate an 	alternative position.”

10. In assessing the risk of serious harm the probation officer wrote:

	“[The appellant] does have a history of domestic violence and in my view he presents a risk to females within a personal relationship.  In addition he could also present a future risk of physical and psychological harm to his children and potentially other children within a family setting.  

	The risk is likely to be greatest when [the appellant] is in a relationship and in a situation whereby he has contact with his children. …   [The appellant] presents a low risk to the public in general …”

11. In a decision letter dated 3 February 2012, the ISA (as predecessors of the present respondent) referred to the lack of insight, the lack of assurances that the appellant would not commit such offences again in the future, his failure to accept the severity of his actions and the impact they had on his children and the lack of demonstrable remorse, which was said to highlight the concerns around his propensity for committing similar offences in the future.

12. This prompted a reply dated 16 March 2012 in which the appellant said that:

	“Having considered carefully your most recent letter, I wish to say that I am 	very sorry for not being able to demonstrate in my previous correspondence 	how regretful I am for my acts of cruelty to my children.

	Following my sentencing at the Crown Court in November 2009, I have 	realised the implications and consequences of my actions and have also 	learnt my lesson already.  I have also taken steps to apologise to my children 	and their mother for my inappropriate behaviour …” 

Ms Hannett, with some justification, points out that this was the first recorded expression of such regret and remorse and was only put forward following the decision to maintain his name on the Barred List.  The implication was that this was self‑serving.

13. My grant of permission to appeal against decision (a) had raised points relating to the sufficiency of enquiries and/or of findings as to his conviction, in particular as to whether it was on a plea of guilty (and if so on what factual basis) or not; whether the decision was disproportionate and/or wholly unreasonable; the adequacy of the reasons and whether by having concluded in the barring decision process document that “he doesn’t accept that by hitting the children, he acted unlawfully” the respondent erred in fact.  Following that grant of permission the respondent obtained (for the first time) a transcript of the judge’s sentencing remarks at the Crown Court.  These are very revealing.  They record an exchange between counsel for the appellant in the criminal proceedings and the judge where counsel indicated, on instructions, that the appellant intended his guilty pleas to be entered on the basis of the children’s evidence.  Counsel expressly invited the judge to cross out from the document recording the basis of plea the words that “he said that he then put the belt aside and smacked the children on the legs with his hand.”  The judge remarked, and counsel accepted, that the lines deleted would be against the evidence.  

14. The transcript contains a summary of evidence from a paediatrician who had examined the children shortly afterwards.  In the case of the appellant’s son there was a triangular shape injury which looked like it had been caused by an edge either of a belt or a metal end of a belt and also bruising to the left heel.  In relation to the appellant’s daughter the doctor noted injury to her right leg with a wedge shaped triangular injury with a raised red area.  The doctor concluded the bruising suggested a fair degree of force not just a glancing blow.  The doctor was of the opinion the injuries were consistent with being hit by a belt, possibly a triangular end to the belt or some part of a buckle.  Photographs of the injuries were seen by the judge.  Reference was made to the children’s evidence in which the son describes being hit three to four times with a belt and the daughter five or six times.  The transcript records how when the appellant had been arrested and interviewed by the police he had denied using a belt and smacked both with an open hand. 

15. The view of the judge of the severity of the matter was clear, indicating that he would have to “consider custody as my first stop” and that having looked at the photographs and the medical evidence “it has to be actual bodily harm, no two ways about it … the injuries are so visible, the manner of attack” and in his conclusion that “clearly the custody threshold is crossed”.  

16. In its review decision the respondent noted that pleading guilty “on the basis of the children’s evidence” meant that he accepted he had hit his son three to four times and his daughter five or six times with the belt.  While noting the assertions of regret and the lack of reported incidents in the appellant’s professional life of behaving inappropriately towards children, it had now been confirmed that he used a belt on both his children.  The evidence of the doctor that “a fair degree of force” had been used was noted, as was the significant power in balance between the appellant and his children.  He had used violence as a means of dealing with difficult situations in response to provocation, the first being the chastisement of his children and the second being the caution received for battery following a row with his partner of the time.  It noted that he had misled the ISA/DBS in relation to using a belt as he had denied doing so in his representations of 21 September 2011, despite what he had earlier said to the Crown Court.  He had misled the police to like effect.  Further, he had minimised his responsibility for what had taken place which undermined his comments about regretting the incident and learning from it.  The conclusion was that:

	“[The appellant] is included in the Children’s Barred List following an auto‑bar 	offence.  This review has clarified the information in relation to why he 	received his conviction.  It is apparent [the appellant] has misled a number of 	agencies involved in his case and his proven conduct has also shown him 	using violence to deal with difficult situations.  The combined effect of these 	factors means the most appropriate conclusion in reconsidering [the 	appellant’s] case is to retain his inclusion on the Children’s Barred List.”  

17. Turning to the appellant’s grounds, Ground 1 (insufficient evidence) can be seen in more than one way.  If it was saying that there were insufficient reasons to justifying continuing the barring, that is a matter that goes to “appropriateness” and which the Upper Tribunal is precluded by section 4(3) of the 2006 Act from considering unless it reaches the thresholds of being an irrational or disproportionate step (considered below).  Alternatively, it could be taken as asserting that findings made were wrong or wholly unsupported by evidence.  In our view, they were supported by evidence and were correct.  As regards what the appellant did and the consequences of those actions, the matter is now fully evidenced in particular by the sentencing remarks of the judge.  The evidence that the appellant sought to mislead the police, the probation service and the respondent all appears in the Upper Tribunal bundle.  As to whether the decision was proportionate, these were serious assaults, crossing the custody threshold and in a situation of an imbalance of power.  He had misled the police the Probation Service and the DBS, showing a lasting attempt to minimise what he had done.  Apologies and remorse were only offered at a stage when it was in his interests to do so, previous representations having focused on blaming his ex‑wife.

18. Ms Hannett drew our attention to the case of AP v ISA [2012] UKUT 412 (AAC) which she said had numerous similarities with the present case.  While we do not dispute that that is so and while we have had regard to it, it is at best merely illustrative.

19. These were offences committed in a domestic context.  That does not excuse them but the view of the probation officer was that the material levels of risk arose in the context of the appellant’s relationships and that he was a low risk to the public.  However, that report was written at a time when the appellant had not yet clearly indicated the basis of his plea and without the knowledge that what he had said to the probation officer and what he would say to the police and the DBS was both misleading and in the case of the latter seeking to deflect blame onto his ex‑wife and to minimise his own responsibility.  We consider that the appellant’s inability to deal insightfully with his actions and their consequences causes a degree of concern about his likely reactions in non‑domestic contexts also and thus we do not find it, in the circumstances of this case, to be either irrational or disproportionate to rely on a domestic incident for a barring in the professional context.  We accept, too, that it is possible to draw (as has the respondent) a valid distinction between the children’s list, where he has been convicted of serious offences and where, for the reasons given, one cannot feel confident about the boundaries he can set to his behaviour, and the adults list where feedback on his work with demanding user groups has been positive and certainly there has been no reported incident or concern to the respondent.  The battery for which he was cautioned was not against a “vulnerable adult” as defined and was in any event a less serious matter.  

20. As to ground (b), in our view the reasons given for decision (b) as set out in the letter of 4 February 2013 and its enclosure are clear and cogent and can leave the appellant in no doubt as to why the respondents were maintaining the bar.

21. For the above reasons we dismiss the appeal against decision (b).

22. We should add that the respondent also makes criticism of the claimant working while barred and of a lack of candour in his answers given to, among others, the Crown Court judge about the work he was doing.  The respondent did not at the time rely on this for either of its decisions and we need say no more about it.

23. Having dealt with decision (b), that leaves the question of what to do with decision (a).  The relationship between original decisions and review decisions on appeal to the Upper Tribunal is something which Ms Hannett says is relevant in other cases also and she has invited us to give guidance as to the approach.  It seems to us that there is a limit to what can be said in any guidance and in general a case specific approach is required, albeit it will often lead to the same conclusions.  

24. By section 4(1) of the 2006 Act (as amended by the Protection of Freedoms Act 2012) 

	“An individual who is included in a Barred List may appeal to the Upper Tribunal against 

		(a) …

		(b) a decision under paragraphs 2, 3, 5, 8, 9, or 11 of Schedule 3 to 		include him in the list.

		(c) a decision under paragraph 17, 18 or 18A of that Schedule not to 		remove him from the list.

25. The review powers in Schedule 3 include in paragraph 18 the right of a person included in the Barred List, with permission, to apply for a review after the end of the minimum barred period.  Paragraph 18A provides:

	“(1). Sub-paragraph (2) applies if a person’s inclusion in a barred list is not 	subject to – 

		(a) a review under paragraph 18, or 

		(b) an application under that paragraph,

	 which has not yet been determined

	(2). DBS may, at any time, review the person’s inclusion in the list.  

	(3). On any such review, DBS may remove the person from the list if, and only 	if, it is satisfied that, in the light of-

		(a) information which it did not have at the time of the person’s 			inclusion in the list,

		(b) any change of circumstances relating to the person concerned, or 

		(c) any error by DBS.

	it is not appropriate for the person to be included in the list.”

26. In the present case decision (a) was under Schedule 3, para 2, prior to its amendment by the 2012 Act, not to remove a person’s name from the list, while decision (b) was under paragraph 18A not to remove him following a review.

27. Ms Hannett submits that there are three possible ways of dealing with such a situation i.e. that:

	(a) both decisions are extant and must be determined;

	(b) the right of appeal in relation to the first decision, under section 4(1)(b) of 	the 2006 Act, is superseded by that existing in relation to the second decision 	under section 4(1)(c); or 

	(c) that both continue to exist but in general the Upper Tribunal would stay the 	first one.

28. We discount (b) as it would require express statutory language to take away a right of appeal and there is none.  Which out of (a) or (c) should happen will depend on the circumstances of the case.  In many situations, whether a person’s name should continue on the Barred List will be a matter whose principal importance is looking forward.  In such a case, what is most important in terms of protecting vulnerable groups, defining an individual’s freedom of activity and making effective use of Upper Tribunal and other resources, is the second decision, taken with the benefit of further information, taking account of recent changes of circumstances or having rectified any error which may have occurred.  That is what has happened in the present case which is why the appeal against decision (a) was stayed and this decision has concentrated on decision (b).  It is now possible to say that now the respondent has gathered further evidence, it is apparent that any shortcomings there may have been in decision (a) are not material.  Though it is not necessary to decide the point, if the respondent did make insufficient findings about what the acts consisted of in respect of which the appellant was convicted, it has now remedied that and the evidence supports its, rather than the appellant’s, case.  Nor do we consider that the respondent has failed to address any of the other possible flaws in decision (a).  

29. In effect what the respondent has done by carrying out a review is to pre‑empt a possible finding by the Upper Tribunal that there had been an error of law or fact in decision (a), resulting in all probability in the matter being sent back to the respondent, by taking its own decision on review.  With some appellants, particularly those with professional legal representation, such a step may have resulted in avoiding Upper Tribunal proceedings or at any rate of clarifying the issues for consideration at them.  That will not be possible in every case and was not possible in this one but that does not make it a less desirable aim in general terms.  

30. There may well be some cases where it is important to determine whether the first decision was correct when taken or not.  It is not necessary to speculate here what those circumstances may be, but it is right to leave the possibility open.  

31. In the situations where there is a decision and a review decision, permission to appeal will be needed against the review decision.  Upper Tribunal judges will be able to deal with any difficulties the additional procedural complications may cause for unrepresented appellants. 

32. The situation where there is a decision and a review decision is likely to place demands on the respondent’s decision-writing skills.  If the review decision is  adopting the reasoning of the original decision, merely topping it up by consideration of an additional piece of evidence or a new circumstance which has occurred, then it would be advisable for the review decision letter to say so.  The respondent may have considerable difficulty in demonstrating that its reasons meet the legal test of adequacy if it is left as a matter of conjecture to what extent it continues to rely on the reasoning of the earlier decision as part of the review decision.

(Signed on the Original)

C G Ward
Judge of the Upper Tribunal 

Also on behalf of:

Ms M Halstead 
Member of the Upper Tribunal
Ms J Funnell 
Member of the Upper Tribunal 

 10 February 2014