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Neutral Citation Number:	2010 UKUT 248 AAC
Reported Number:
File Number:	C 1417 2009
Appellant:	Secretary Of State for Education
Respondent:	JN
Judge/Commissioner:	Judge H. Levenson
Date Of Decision:	20/07/2010
Date Added:	16/08/2010
Main Category:	Care standards
Main Subcategory:	Other
Secondary Category:	Tribunal procedure and practice (including UT)
Secondary Subcategory:	evidence
Notes:	Reported as [2011] AACR 10. Tribunal practice – direction barring teacher from work with children – nature of appeal – admissible evidence In 1984 the appellant had been convicted of crimes of violence against his partner and her child. In 2003 he was prosecuted on three charges of indecent assault on boys, but was found not guilty at the Crown Court. The Secretary of State made a direction under section 142 of the Education Act 2002 (since repealed by the Safeguarding Vulnerable Groups Act 2006 except for transitional cases) barring him from carrying out any work providing education or involving contact with children by placing him on the list kept under section 1 of the Protection of Children Act 1999 of individuals considered unsuitable to work with children (known as List 99). He appealed and the First-tier Tribunal allowed his appeal, concluding that the Secretary of State’s direction was not proportionate. The Secretary of State appealed to the Upper Tribunal. At no stage in the proceedings was the indictment and/or the transcript of the criminal trial produced. Regulation 13(2) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 provided that the First-tier Tribunal shall not in exercising its power under this regulation consider any information relevant to the decision which the Secretary of State did not have at the time the decision was made. However rule 15(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 provides that the First-tier Tribunal may admit evidence whether or not it would be admissible in a civil trial in England and Wales or it was available to a previous decision-maker. Held, allowing the appeal, that: 1. within the limitations of the provisions on what information, evidence or material the tribunal can take into account, the First-tier Tribunal is under a duty to make its own findings of fact insofar as the relevant and necessary facts are disputed and, on the basis of those findings and the agreed facts, to make its own judgment in respect of the statutory questions: Secretary of State v Kevin Philliskirk [2008] EWHC 2838 (Admin), Ofsted v GM and WM [2009] UKUT 89 (AAC); [2010] AACR 21 and MC v SSD [2009] UKUT 173 (AAC); [2010] AACR 20 followed (paragraphs 17 to 28); 2. the object of regulations 12(2) and 13(2) appears to be to enable the Secretary of State to consider the significance of any new information or change of circumstances before the tribunal does, not to prevent a tribunal from receiving more detailed evidence about an issue raised in information that has previously been before the Secretary of State and it is a matter of judgment whether more detailed evidence received at a hearing before a tribunal amounts to new information for the purposes of regulation 13(2)(a) (paragraphs 31 to 33); 3. if either of the parties wished to rely on what happened at the trial it would be for that party to seek to put these materials in evidence; those materials would not amount to new information, but would be detailed evidence of information which was before the Secretary of State. However, the interest of justice and fair procedure would require that both parties had a full opportunity to consider that information for a reasonable period prior to the new hearing before the First-tier Tribunal (paragraph 34); 4. the question of whether a teacher should be the subject of a direction in these circumstances has to be viewed in the context of restricting a person’s employment for the purposes of both the protection of children and the maintenance of public confidence in the education system and in that context the tribunal’s reasoning was flawed in relation both to the weight given to the convictions and to the evidential value of the similarity of the later allegations (paragraphs 38 to 40). The judge referred the matter to a differently constituted tribunal in the Health, Education and Social Care Chamber of the First-tier Tribunal for a fresh hearing and decision in accordance with his directions.
Decision(s) to Download:	[2011] AACR 10 ws.doc