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Neutral Citation Number:	2012 UKUT 412 AAC
Reported Number:
File Number:	V 1565 2011
Appellant:	AP
Respondent:	ISA
Judge/Commissioner:	Judge E. A. L. Bano
Date Of Decision:	09/11/2012
Date Added:	28/01/2013
Main Category:	Safeguarding vulnerable groups
Main Subcategory:	Children's barred list
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2013] AACR 17. Children’s Barred List – standard of proof – decision not to apply Stage 3 of Structured Judgement Process – whether error of law The appellant became step father to three children after he married their mother in 2004. On 7 October 2009 he was convicted of two offences against a child, contrary to section 1(1) of the Children and Young Persons Act 1933, and one of causing actual bodily harm to his wife. As a result he was automatically included on both the Children’s and Adult’s Barred Lists under the Safeguarding Vulnerable Groups Act 2006. Following representations on his behalf the Independent Safeguarding Authority (ISA) decided to remove the appellant’s name from the Adult’s Barred List but not the Children’s Barred List. The ISA’s decision was made without following its own procedures: the normal risk assessment at Stage 3 of the Structured Judgement Process (SJP) was omitted, as in the ISA’s view there was insufficient information to complete the process, and the case was not referred to either a senior manager or the ISA Board. The appellant appealed against the decision on the grounds that his actions were not serious but simply those of a normal parent dealing with unusually difficult behaviour. Permission to appeal was granted by the Upper Tribunal on the grounds, among others, that the ISA had failed to follow its own procedures and may also have failed to take proper account of all the available evidence (that the original serious charges were dropped and the particular domestic context in which the offences occurred). Following the appeal the ISA carried out a review and decided to confirm its decision and the case then proceeded to a hearing before the Upper Tribunal. Held, dismissing the appeal, that: 1. the questions of the weight to be given to the evidence was a matter for the ISA and it was bound to consider, under paragraph 13 of Schedule 3 to the 2006 Act, the relevance of the police’s evidence about the original charges. The evaluation at Stage 4 of the SJP was almost entirely concerned with the offences with which the appellant was ultimately charged and there was nothing to suggest that the ISA failed to appreciate that the original charges were not proceeded with (paragraph 15); 2. a public authority may act unlawfully if it acts contrary to the legitimate expectation of a person affected by either departing from an established policy or practice, or by doing so without giving the person affected an opportunity to make representations before the change is put into effect: Nadarajah, Abdi v Secretary of State for the Home Department [2005] EWCA Civ 1363 and R (Bhatt Murphy & ors), R (Niazi) v SSHD [2008] EWCA Civ 755. But it was clear from Bhatt Murphy that there must be unfairness sufficient to amount to an abuse of process for the concept of legitimate expectation to come into play. The SJP forms part of an administrative (not a judicial) decision making process and the doctrine of legitimate expectation does not confer the status of a legal procedural code on a document developed to assist administrative decision makers in making decisions. The ISA will not have erred in law if it decides to omit a stage in its procedures which, in a particular case, adds no value to the decision making process (paragraphs 19 to 21); 3. the Court of Appeal has held that the Upper Tribunal cannot carry out its own fresh consideration of the evidence but must give proper weight to the assessment of the ISA: Independent Safeguarding Authority v SB and Royal College of Nursing [2012] EWCA Civ 977; [2013] AACR 24. While the Upper Tribunal can consider whether a decision is disproportionate, the Court of Appeal has held that in doing so, it must give proper weight to the authority’s decision. There was no basis for holding the ISA’s decision to be disproportionate. It was fully entitled to give the weight that it did to each of the different factors; in particular, the seriousness of the offences of which the appellant was convicted and his refusal to acknowledge the full extent of his responsibility for them. The evidence before the ISA fully justified the barring decision without the need for the SJP to be applied and accordingly there was no injustice to the appellant in the decision not to carry out Stage 3 of the SJP and therefore no error of law arose for that reason (paragraphs 26 to 31).
Decision(s) to Download:	[2013] AACR 17ws.doc