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Neutral Citation Number:	2011 UKUT 404 AAC
Reported Number:
File Number:	V 2490 2010
Appellant:	Independent Safeguarding Authority v SB
Respondent:
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	10/05/2012
Date Added:	17/10/2011
Main Category:	Safeguarding vulnerable groups
Main Subcategory:	Children's barred list
Secondary Category:	Tribunal procedure and practice (including UT)
Secondary Subcategory:	tribunal jurisdiction
Notes:	Court of Appeal decision reported as [2013] AACR 24. Jurisdiction – function of and relationship between Independent Safeguarding Authority and Upper Tribunal Children’s barred list – public confidence a material consideration On 14 July 2009 the respondent pleaded guilty to various offences concerning indecent photographs of children. He received a suspended sentence of imprisonment and, among other things, was subject to a Sexual Offence Prevention Order (SOPO) prohibiting him from seeking or taking paid or voluntary employment with children under 16. The Independent Safeguarding Authority (ISA) wrote to the respondent to say that his name was included on both the Adults’ Barred List and the Children’s Barred List. He was invited to make representations if he wished to have his name removed. The respondent replied to say that his inclusion on the Lists was disproportionate as he was addressing his behaviour, which he now accepted had been unacceptable, and that the Court’s orders provided a sufficient means of control. The ISA agreed to remove his name from the Adults’ Barred List but not the Children’s Barred List. It subsequently explained the various reasons for its decision including an erroneous reference to the court having imposed a Disqualification from Working with Children Order. The respondent appealed to the Upper Tribunal (UT) on the basis that the erroneous reference to a Disqualification Order was a material mistake of fact and his inclusion on the Children’s Barred List was disproportionate. The UT decided that the reference to a Disqualification Order was not a material error of fact as a SOPO had been issued but rejected the ISA’s submission that consideration of the issues relating to the weight the ISA had attached to individual issues was outside its jurisdiction. It concluded that the ISA had failed to take account of all the available evidence, including that of the Probation Service, or to consider the respondent as a person, including an assessment of his oral evidence. The Upper Tribunal decided that these failures by the F-tT were an error of law and concluded from the available evidence that the respondent was unlikely to reoffend. It directed the ISA to remove the respondent from the Children’s Barred List. The ISA appealed against that decision. The case before the Court of Appeal raised important issues about appeals against decisions of the ISA, including the correct approach to proportionality and the extent to which public confidence in the statutory scheme is a material consideration. Held, allowing the appeal, that: 1. the UT is empowered to determine proportionality and rationality (Wyn Williams J in R (Royal College of Nursing) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin)) but not to carry out a merits reconsideration, as in this respect its jurisdiction is more limited than the Care Standards Tribunal’s jurisdiction under the previous legislation. The UT failed to accord any particular weight to the decision of the ISA, an independent statutory body charged with the primary decision making tasks as to whether an individual should be listed or not. Instead it proceeded to a de novo consideration of its own. The assessment by the ISA caseworker was careful and fair and took into account various factors including the positive references to the respondent, the fact that the respondent had voluntarily sought counselling, and the material upon which the criminal conviction had been founded and which had informed the sentencing process. The objective facts were not in dispute. The ISA” is particularly equipped to make safeguarding decisions of this kind, whereas the UT is designed not to consider the appropriateness of listing but more to adjudicate upon ‘mistakes’ on points of law or findings of fact” (paragraphs 14 to 22); 2. the decision of the UT did not refer to public confidence as a material consideration. While it was not expressly referred to in the legislation, the jurisprudence of the Care Standards Tribunal acknowledged the significance of public confidence. This approach was equally applicable to the decisions of the UT on appeal from the ISA. Public confidence was something which must be placed in the scales when consideration has being given to the personal characteristics and interests of an appellant. It will always be a material consideration (paragraphs 22 to 24). Editor’s note: the functions of the ISA were taken over by the Disclosure and Barring Service from 1 December 2012.
Decision(s) to Download:	V 2490 2010-00.doc [2013] AACR 24 ws.rtf