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You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> B v Secretary of State for Health [2002] EWCST 51(PC) (3 January 2003) URL: http://www.bailii.org/ew/cases/EWCST/2003/51(PC).html Cite as: [2002] EWCST 51(PC)

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B v Secretary of State for Health [2002] EWCST 51(PC) (3 January 2003)

B v Secretary of State for Health
[2002] 51.PC
FURTHER DIRECTIONS APPLICATION UNDER REGULATION 9

His Honour Judge David Pearl (President)
Miss Gillian Irving (Nominated Chairman)

1. The Respondent applied to vary the Directions made by the President on 10^th October 2002, and by the Nominated Chairman on 19^th November 2002.
2. The Applicant was informed of this application and of the date and time of the application. He was not present at the hearing of the application. The Respondent was represented by Mr P Coppel of Counsel.
3. Mr Coppel raised no objection to the application being heard by both the President and by the Nominated Chairman sitting together. There is no provision as such in the Regulations for applications to be heard by a panel of two and in some circumstances it would not be appropriate. However, in this case where the challenge is to Directions made both by the President and by the Nominated Chairman we are of the opinion that the procedure, not objected to by Mr Coppel, is correct.
4. We consider first the Direction made by the President on 10^th October 2002. This reads as follows:

"The appellant has notified the Tribunal in accordance with Regulation 7 that the case be determined without a hearing. The case will be determined on the basis of the papers submitted to it in accordance with these Directions, by a Tribunal that meets to consider the papers on Friday, 22^nd November 2002. Any written submissions must be sent to the Tribunal to arrive no later than 19^th November 2002."

5. Mr Coppel submitted a skeleton argument and developed this argument in his oral submissions to us that this Direction should be varied. In his submission, the proper resolution of the appeal requires that it be determined at an oral hearing. He argued that when there is a material dispute as to matters of primary fact, the proper resolution of that dispute demands that the Tribunal be afforded the best opportunity for resolving that dispute. Thus the Tribunal should see witnesses give their evidence, allow each party to test the other party’s evidence through cross-examination, itself ask questions, and if necessary draw inferences from unexplained non-attendance.
6. These submissions are underpinned by the fact that the List prohibiting a person from working with children exists to serve the public interest, and that there must be confidence in the integrity of the listing regime.
7. We have no doubt that Mr Coppel is correct when he submits that an oral hearing is the best way to deal with cases where there is a conflict of primary fact. This was made clear by Scott Baker J in Secretary of State for Health v C [2002] EWHC 1381 (Admin) when he said "Where, as here, the allegations are very serious and are challenged root and branch, the tribunal may be placed in serious difficulty in finding misconduct established without hearing oral evidence from the complainant."
8. However, the Tribunal is governed by the legislation that established it (Protection of Children Act 1999) and the Regulations enacted as a result of the legislation (Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002). The Protection of Children Act 1999 s 9(3) states that Regulations may in particular include provision for "the determination of appeals or issues…without a hearing in prescribed circumstances." Paragraph 8(1) of Schedule 4 states that "As soon as the respondent has provided the information set out in paragraph 4, the Secretary must write to each party requesting that he send to the Secretary…the following information – (f) in the case of the applicant, whether he wishes his case to be determined without a hearing."
9. Mr Coppel urged on us the argument that Paragraph 8(1)(f) is expressed in terms of wish. There is no suggestion, so he submits, that the wish of the applicant is to be decisive of whether the case is determined with or without a hearing.
10. We are unable to accept Mr Coppel’s interpretation of this provision for the following reasons.
11. We would expect there to be an express provision in the Regulations stating clearly and categorically that the decision on whether there is to be an oral hearing or a paper appeal is a decision of the Tribunal rather than a decision of the applicant. In the case of the Directions, Regulation 6(1) states "If either party has requested that there shall be a preliminary hearing, or if the President or the nominated chairman considers that a preliminary hearing is necessary…". Paragraph 9(2)(b) is to the same effect: "the President or the nominated chairman may direct that there shall be a preliminary hearing in relation to any proposed variation or further direction if he considers it appropriate or if a preliminary hearing has been requested by either party." If the Regulations expressly provide for the Tribunal to decide on an oral preliminary hearing, it is in our view not simply an oversight that the Regulations do not provide for the Tribunal to decide on whether there should be an oral hearing when the applicant has elected for a paper appeal. They do not provide for this circumstance, in our view because there is no such power.
12. Regulations 6(2)(c), 7(1), 14(3) and 23(2) set out the manner in which a case should be brought before the Tribunal in the case of a paper appeal. These Regulations form the basis of the published documents of the Tribunal, all available on the Tribunal website. Thus the Guide to the Appeals Process states at p 13 "What do I do if I don’t want an oral hearing?" The document reads: "You can choose whether or not there is an oral hearing to decide your appeal. If you do not want an oral hearing the Tribunal will decide your appeal on the basis of the written evidence that you and the Secretary of State send in." Form A5 has a tick box in Section 3. It says "The Tribunal will hold an oral hearing unless you ask it not to. Please tick one box only" The two boxes are (a) after holding a hearing (b) without holding a hearing.
13. In this case, Mr B ticked the box "without holding a hearing". He also ticked the box requesting all members of the press and public to be excluded from a hearing. On 11^th September, the Department of Health wrote to the Tribunal seeking clarification, as they thought it unclear as to whether Mr B "is requesting a hearing." The Secretary of the Tribunal wrote to Mr B seeking clarification on this matter (September 17^th) and by a letter received by the Tribunal on 3^rd October 2002, Mr B confirmed that he "would like a paper hearing." One thing is clear from this correspondence, and that is that the Department of Health and the Tribunal were operating on the basis of the procedure that allowed the applicant to decide whether he wanted an oral hearing or a paper appeal.
14. It is our view that the Direction of 10^th October 2002 complied with the Regulations and was in accordance with the understanding of how the Regulations should be operated. If Mr Coppel is correct, as he may well be, that a decision to have an oral hearing as a matter of policy should be the decision of the Tribunal, then the Regulations should make such a provision. We understand that there will be an opportunity to amend the Regulations in the near future, and we suggest that consideration is given to an amendment so as to incorporate the power that Mr Coppel urged on us. We would welcome this power. At present however we do not have it and notwithstanding the ingenuity of Mr Coppel’s argument he failed to persuade us.

15. On 19^th November 2002, the nominated Chairman (Miss Irving), having considered the evidence filed by the Respondent in accordance with the directions of 10^th October 2002, determined that further directions were required in relation to the filing of further statements and the disclosure of evidence.
16. Pursuant to Regulation 9(1) and Regulation 12(1)(a) she directed that the Respondent file:

1. a full transcript of the memorandum interview conducted with child ‘D’ on 30^th November 2001;
2. a copy of the video of the aforesaid memorandum interview;
3. an addendum to the statements filed from the mother of child ‘D’ dealing with the discussions she had with the child between the time of the complaint and the memorandum interview;
4. an addendum to the statement filed from D.C.Long setting out the details of her pre-memorandum discussion with child ‘D’;
5. a statement from the original complainant who is referred to in the statement filed from D.C.Long;
6. a statement from someone from the social work team who had participated in the investigation of the allegations and whose evidence is referred to in the exhibits annexed to the statement filed from D.C.Long.

15. The directions were designed to produce the source materials which were clearly in existence given the statements and exhibits produced by D.C.Long and which the nominated chairman felt were essential to assist the Tribunal in the proper discharge of its duty under the first limb of s4(3)(a) of the Protection of Children Act 1999, namely to determine whether B was guilty of misconduct with child ‘D’ as alleged during 2001 and whether such misconduct harmed child ‘D’ or placed him at risk of harm.
16. The nominated chairman was particularly concerned with the evidence that had been produced in the following three respects:

• The memorandum interview, on the face of it, had been conducted in breach of the Cleveland Guidelines of 1987 and the Memorandum of Good Practice. Hand-written extracts from the transcript of the interview were disclosed and relied upon but the transcript in its entirety had not been disclosed, nor the video of it.
• Reference was made in the exhibits to D.C.Long’s statement of child ‘D’ making his initial complaint against B to his mother’s former partner. There was reference to the fact that the partner had been interviewed by the police but there was no statement disclosed from him.
• The statement from D.C.Long and its exhibits clearly identified that there had been a discussion with child ‘D’ prior to the memorandum interview. There were no details of what was said or by whom.

15. Mr Coppel asserted that the Tribunal has no power to direct that a party do file and serve statements or other materials which are not already in existence at the time the direction is made, nor can the Tribunal direct disclosure of any document or other material which is not in the possession or control of that party.
16. We accept the second of these two submissions. Indeed Regulation 12(1)(a) makes it clear that a party is only required to send to the Secretary to the Tribunal any document or other material "…which that party is able to send."
17. Mr Coppel informed us that neither the transcript of the memorandum interview, the video of it, or any other deposition is available to the Respondent. Thus we rescind the directions (i), (ii) and (vi) referred to in paragraph 2 above.
18. As to the first of his submissions, Mr Coppel urged on us a narrow interpretation of Regulation 9(1) and 12(1)(a), in effect providing the parties with the power to decide what evidence to submit to the Tribunal. We reject this submission. Regulation 12(1)(a) requires a party to send to the Secretary to the Tribunal any document or other material which [the President or nominated chairman] considers may assist the Tribunal in determining the case. The only conditions are those contained in Regulation 12(3)(4) and (5). The nominated Chairman took these conditions into account when she issued the further directions.
19. We are mindful of the concerns expressed by Scott Baker J in Secretary of State v C [2002] EWHC 1381(Admin) referred to above in paragraph 7. These concerns are perhaps even more significant when the applicant elects a paper appeal. We bear in mind both that the burden of proof is on the Respondent to establish misconduct, and the requirement to assess risk imposed on us by the Protection of Children Act 1999. We think it entirely consistent with our responsibility to provide a fair determination of the case that the Tribunal be empowered to seek all the relevant evidence.
20. Accordingly, the directions of the nominated Chairman dated 19^th November 2002 are amended for the reasons given above to read as follows:

• The Respondent do file an addendum to the statements filed from the mother of child ‘D’ dealing with the discussions had with the child between the time of the complaint and the memorandum interview
• The Respondent do file an addendum to the statement filed from D.C.Long setting out the details of her pre-memorandum discussion with child ‘D’

• The Respondent do file a statement from the original complainant who is referred to in the statement filed from D.C.Long

These three statements to be filed with the Secretary to the Tribunal so as to arrive no later than 5.00pm on 12^th February 2003, with any response from the applicant to be filed with the Secretary to the Tribunal so as to arrive no later than 5.00pm on 26^th February 2003.

The Tribunal will decide on the disposition of the appeal at a paper appeal taking account of the Tribunal bundle already prepared, together with any further documents obtained as a result of the directions above. It will be considered by the Tribunal already nominated by the President in accordance with Regulation 5(1) and 5(6) on March 12^th 2003. Any submissions in writing from either party must be sent to the Secretary to the Tribunal so as to arrive no later than 5.00pm on March 10^th 2003.

His Honour Judge David Pearl

(President)

Miss Gillian Irving

(Nominated Chairman)

January 3^rd 2003.

1. [NOTE: Mr Coppel informed us that C v Secretary of State for Health was being considered by the Court of Appeal on December 16^th 2002, and he invited us to postpone our decision in this matter pending receipt of the judgement in that case. We have a responsibility to ensure that cases before the Tribunal are dealt with as expeditiously as is possible, and we have therefore decided that it would be right to promulgate our decision in this matter at this time. If the judgements in the Court of Appeal bear on our reasoning in this matter, there is an opportunity for our directions to be reopened on application under Regulation 9(1)].