TM v Secretary of State [2007] EWCST 1118(PVA) (29 May 2008)
TM 
-v-
SECRETARY OF STATE FOR HEALTH
[2007] 1118.PVA 
[2007] 1119.PC

- Before -
Ms Liz Goldthorpe, (Nominated Chair), 
Mr Michael Flynn (Specialist Member)
 Mr Peter Sarll (Specialist Member)
Heard on 14th & 15th April 2008
DECISION:	Appeal Allowed.

REPRESENTATION 

The Appellant appeared in person.  

Ms Sarah Jane Davies of Counsel appeared for the Respondent instructed by Mr Duncan Brown of the Treasury Solicitors for the Secretary of State.  

APPEAL

1. 	The Appellant appeals under s.86 of the Care Standards Act 2000 the decision of the Respondent contained in a letter to the Appellant dated 21 June 2007 (the Decision Letter) to confirm him on the Protection of Vulnerable Adults list (the POVA list - the first Appeal) and the Protection of Children Act list (the POCA list – the second Appeal). 

2.	The Decision Letter also notified the Appellant that the effect of inclusion on the POVA list also meant that the Appellant would not be able to carry out work to which s.142 of the Education Act 2002 applies and that his name had been added to the Education List.  

3.	The basis of the decision to list the Appellant was that his employer had reasonable cause to believe that the Appellant was guilty of misconduct consisting of neglect, in that he regularly left service users unattended, which placed them at risk of harm since two were prone to seizures, one to falling and another to choking on food.

Preliminary Matters

4.	On 18th February 2008, the President, His Honour Judge Pearl, made directions under Regulations 8(1) and 6(3A) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (the Regulations) that both the First and the Second Appeals would be consolidated and heard together, and gave directions as to the relevant evidence to be served or applied for. 

5.	On 22nd February 2008 the Respondent applied for permission to call Mr NS, one of the service users, as a witness.  On 12th March 2008 the President directed that Mr S could be called as a witness subject to Regulation 17(5) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (‘the Regulations’), with arrangements to be made for him to give evidence by video link accompanied by the current manager of his care home.  In these circumstances the President made it clear it would not be necessary to appoint a person with appropriate skills or experience in facilitating the giving of evidence by vulnerable adults and the Tribunal hearing the case would decide on the questions to be posed to Mr NS on behalf of the Appellant. 

6.	On 18th February 2008 the President also made a Restricted Reporting Order under Regulation 18(1) of the Regulations, with a direction under Regulation 27(1) that the decision would be published in an edited form and a direction that the hearing be conducted in private when Mr S gave his evidence to safeguard his welfare and protect his private life.  The Appellant requested a continuation of the Restricted Reporting Order on the basis that he lived in a small community and identification would be likely to lead to a detrimental effect on his family.  

7.	Taking into account the nature of the information in this appeal and the agreement of the parties we concluded it was appropriate that the Restricted Reporting Order continued beyond the hearing and we renewed the order in the terms set out in paragraph 5 save that the Order shall continue in force indefinitely and shall also prohibit any matter likely to lead members of the public to identify any vulnerable adult.

8.	The hearing bundle did not contain copies of these directions, which the Respondents supplied at the hearing.  Regulation 17(3) provides that where the President or nominated chairman (‘he or she’) “believes that it might not be in the best interests of a vulnerable adult for that person to give oral evidence to the Tribunal” he or she must:
a)	Give the parties the opportunity to make written representations before the hearing or…at the hearing; and
b)	Having regard to all the available evidence, including any written representations by the parties, consider whether it would prejudice the vulnerable adult’s welfare to give oral evidence to the Tribunal 
(i)	In any circumstances, or
(ii)	Otherwise than in accordance with paragraph (5)

9.	Regulation 17(5) provides for 
(a) any arrangements to be made that the President or nominated Chairman considers appropriate to safeguard the welfare of the vulnerable adult, including the use of a video link and 
(b) the appointment for the hearing of a person with appropriate skills or experience in facilitating the giving of evidence by vulnerable adults.  Regulation 17(4) gives the Tribunal power to direct that the vulnerable adult should not give evidence if it would prejudice his welfare to do so otherwise than in accordance with paragraph (5).  
10.	At the hearing Mr S was accompanied by both his carer and his mother.   Unfortunately the manager had left and Mr S’ carer was the only available substitute.  The Respondents were concerned that the carer did not fulfil the requirements of Regulation 17(5).  We were satisfied the Tribunal had power to consider matters afresh and determine whether or not it would be prejudicial to Mr S’ welfare to give oral evidence in accordance with Regulation 17(5).  We assessed Mr S by means of a brief video-link interview in the presence of his mother and carer and concluded he had sufficient understanding and capacity to participate in the hearing.  We also concluded there were sufficient and appropriate safeguards in place to protect him throughout the course of giving evidence.

The Evidence heard

11.	The Appellant gave written and oral evidence.  His sole witness at the hearing was Mrs M, his wife, who is still employed by Mr A as a support worker at another care home.  Mr K, a teaching colleague, also provided a written character reference.

12.	On behalf of the Respondents the Tribunal heard evidence from Mr A, the owner of A Residential Services which runs the A Care Home (‘the home’) of which he was the acting manager from 1989 to 1993 and 2005 and 2006; Mr O a self employed care consultant who was also the interim manager of the home from July 2006 to February 2007, Mrs G a former support worker at the home and Mr S, a resident at the home.

13.	The Tribunal’s bundle contained documents from the home including care plans, but there were no relevant staff records, shift rotas, service user logs, or any record of the investigation leading to the Appellant’s dismissal.  Therefore the Appellant faced a potential difficulty in challenging some of the assertions made by the Respondent’s witnesses in the absence of written records to support their evidence.  The Tribunal is bound by the Human Rights `Act 1998 and Article 6 of the European Convention and has power under Rule 14(3)(a) of the Tribunal Regulations to exclude evidence on the basis that in all the circumstances it is unfair to consider it.  On this basis we refused to accept further evidence from the home’s records, which the Respondents had obtained by telephone after Mr A had finished giving evidence and had left the hearing.

THE LAW

13.	The Secretary of State has a duty under s.81 Care Standards Act 2000 to “…keep a list of individuals who are considered unsuitable to work with vulnerable Adults”.  The effect of inclusion on the list is spelled out by s.89 which, to paraphrase, effectively prohibits employment in a care position and makes it a criminal offence to apply for a job, or do any work in a care position.
 
14.	Section 82 Care Standards Act 2000 places a duty on employers to refer an employee if; 

“(2)(a) that the provider has dismissed the worker on the grounds of misconduct …………which harmed or placed at risk of harm a vulnerable adult.”

15.	On appeal the tribunal has to consider the matter as follows;

“S.86(3) If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely-

(a)	that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult; and
 
(b)	that the individual is unsuitable to work with vulnerable adults,

the Tribunal shall allow the appeal or determine the issue in the individuals favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual’s inclusion in the list”

16.	By s.2C Protection of Children Act 1999 the Secretary of State may consider any person placed on the POVA list for inclusion on the POCA list where the nature of the misconduct against a vulnerable adult is such that the individual would also be unsuitable to work with children.

Burden and Standard of Proof 

17.	The standard of proof is the ordinary civil standard, namely on the balance of probabilities as defined in the House of Lords decision in Re H (minors) (sexual abuse: standards of proof) [1996] AC 563 and further considered by Richards LJ in R (on the application of N) v Mental Health Review Tribunal (Northern Region) [2006] 4 All ER 194, in which he said at [62]::

“Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities."
and at [71]:
"…the seriousness of the consequences if a matter is proved is nonetheless a factor to be taken into account when deciding in practice whether the evidence is sufficiently strong to prove that matter on the balance of probabilities."

18.	It is this test that we apply, noting that the evidential test requires the evidence to be cogent.

19.	As set out in PB v Secretary of State [2006] 628 PC there are 3 tests to apply, the third of which only comes into play if the first two are both satisfied. The Tribunal must firstly be satisfied there was an act or acts of misconduct and secondly that one or more of those acts have harmed a vulnerable adult or placed them at risk of harm. It is only if those two tests are satisfied evidentially, applying the civil test as set out in Re H (above) that the third test is reached.  The burden of satisfying the Tribunal as to misconduct rests on the Respondent.  However, in the cases of Kalchev v Secretary of State for Education And Skills [2005] 589.PVA and DG v Secretary of State [2006] 824 PVA, it was held that the duty to satisfy the Tribunal as to suitability switches to the Appellant if the Tribunal is satisfied that the person has been guilty of misconduct. We agree, and adopt that approach in this case.

Misconduct

20.	In Angella Mairs [2004] 269 PC the Tribunal set out a number of principles that we have adopted, namely:
•	it is not necessary to establish misconduct is either serious or gross
•	a single act of negligence could constitute misconduct, but in most cases will be an incident “forming part of a course of erroneous or incorrect behaviour undertaken by a person who knew or ought to have know what he or she was doing was contrary to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling."
•	misconduct can arise out of acts of commission or omission and is a term that does not necessarily connote moral censure:  an individual can be ‘guilty of misconduct’ without being, for example, dishonest or disgraceful.  

21.	By virtue of s.121, ‘harm’ means ill treatment or impairment of health to a vulnerable adult or to a child.  All the links in the chain of causation between the misconduct and the harm or potential harm to a vulnerable adult must be intact before there can be a finding that an individual was guilty of misconduct resulting in harm or the risk of it.  

22.	Once misconduct has been established, the second consideration is whether the Appellant is unsuitable to work with vulnerable adults or with children.  Not all those found guilty of misconduct will be held to be unsuitable to work with vulnerable adults or children. A finding of misconduct of a less serious nature will not generally lead to finding of unsuitability without more. Conversely, an individual guilty of relatively trivial misconduct could be shown to be wholly unsuitable.  Each case must be looked at on its own facts, context is very important and, as stated in Mairs the judgment “will involve consideration of the character, disposition, capacity and ability of the individual concerned, including his or her ability to act properly in potentially difficult or frustrating circumstances. The judgment will inevitably be, at least in part, by way of deduction from past performances, including (but not limited to) the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed a child or placed a child at risk of harm”.  

23.	This requires consideration of at least, and not exclusively, the following matters:
(a)	the number of incidents constituting the misconduct established;
(b)	the gravity of that misconduct
(c)	the time that has elapsed since that misconduct;
(d)	the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had potential to harm; 
(e)	the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct; and 
(f)	extenuating circumstances surrounding the misconduct. 

It also requires an assessment of risk.  

24.	The test of suitability is not an evidential test in itself, but an exercise of discretion by the Tribunal applying its experience to the evidential matters it has considered previously.  Moreover, the Tribunal must consider unsuitability as at the date of the hearing before it.  

BACKGROUND

25.	The Appellant has been employed in teaching for 20 years, working most recently as a full time design and technology teacher.  Following the events set out below and after he was listed, the Appellant was dismissed from his full time teaching job and is currently unemployed.

26.	The Appellant worked from September 2005 to July 2006 as a part time support worker at the A Care Home, a home registered by the Commission for Social Care Inspection (‘CSCI’) for 9 adults with learning difficulties. This was the Appellant’s first experience of care work.  The home experienced problems in recruiting a Manager during this period. The Appellant’s employers were fully aware of the fact that he continued to work full-time as a teacher.  

27.	The A Care Home consists of premises comprising two adjacent but separate houses.  The residents have varying degrees of learning disability and many have other health problems such as mobility, depression, and diabetes.  The ethos of the home is to support service users to live independently in the community.  When the Appellant was appointed the residents included Mr S.    

28.	On 16 August 2005 Mrs G, a fellow support worker, gave the Appellant his induction training.  Shortly afterwards she left her job.  The induction took the form of two sessions of about an hour each, and according to a summary sheet consisting of a series of ticked headings and signed by the Appellant, he received training in a number of areas.  No other record was kept of the detailed content of the induction.  

29.	Due to his full-time job commitments, the Appellant was not able to attend training sessions.  However, he was loaned training DVDs in adult abuse, abuse of adults with learning disabilities, risk assessment and health and safety.  He watched this source material at home and was booked to attend further training courses in the summer of 2006.

30.	The Appellant’s duties mainly involved working a shift twice a month on Saturday leading in to a sleep-in duty at the home that started at 11 p.m.  He would then work the next morning day shift, leaving the home at 4 p.m on Sunday.  No other member of staff was present on the very first night shift that he did and he was also alone on subsequent night shifts.  Mr A confirmed there were two members of staff present on weekdays between 2 and 8 pm and two on weekends between 10 a.m. and 2 pm.

31.	The Appellant was in the habit of using his own bedding on the night shift because he found the bed base and mattress supplied by the home inadequate.  It had been his practice to bring this bed linen in for the sleep-in duty in the back of his car. When he was unable to do this, his wife brought the bedding to the Home for him.

32.	On 20th May 2006 Mr A held a staff supervision session with the Appellant.  He recorded that the Appellant’s record of punctuality and sickness absence was very good and he had reasonable working relationship with colleagues. The only area he identified as needing improvement was that the Appellant needed “a little push” at times to motivate him.  Mr A said this was “possibly because he is unaware of all routines here” and that he would be working with the Appellant “over the next few months to try and improve this situation.”  He also recorded that the Appellant had had POVA training since his last supervision and demonstrated a good awareness of POVA requirements.  Mr A said he would try and fit any future training into school holidays to allow for the Appellant’s full time work commitments.  

33.	By June 2006 the Appellant had been in employment at the Home for 10 months.  On Saturday 17 June the Appellant said he had forgot to put his bed linen in the car and his wife had subsequently told him she was unable to deliver it as she was visiting friends out of the area.  By his own admission he therefore left the premises and went home to collect it, a return journey of about 15 minutes.  He stated that, in his judgement at the time, it was safe to do this.  Nothing untoward happened whilst he was away.

34.	Mr S says he reported this incident to Mr A some two days later. 

35.	On 2nd July 2006 Mr A, who was then the Acting Manager, conducted a further supervision interview with the Appellant.  Mr A recorded three key items in his notes of the interview, including a formal note that the Appellant must never sit in the office with the door closed or leave the building unattended. He also confirmed the Appellant was required to undertake POVA training, which he agreed to do.

36.	On 19th July 2006 Mr O was brought in as an interim manager.  One of his first tasks was to meet with service users. During the course of one of these meetings with a small group of residents, Mr S told him the Appellant had been going home on a Saturday night to collect his bed linen.  Mr O immediately contacted the Adult Protection Officer at the PCT as well as CSCI, who advised him to meet with all the service users.  At the subsequent meeting the service users supported each other in stating that the Appellant had been leaving them unattended for 15 minutes on a Saturday night.  

37.	Mr O emailed Mr A to report the allegations and to confirm that the interview with the 4 service users had revealed the Appellant was leaving residents on their own between 10.30 and 10.45 each Saturday night.  Mr O recommended a course of action involving the suspension of the Appellant from duty.

38.	On 21st July 2006, 2 days after the allegation had been reported to Mr O, Mr A telephoned the Appellant to tell him he was suspending him.  Mr A followed this up with a letter that made no mention of suspension, but invited the Appellant to a disciplinary interview on 26th July 2006, stating that dismissal was being considered.  The Appellant said on receipt of the letter he telephoned in to request a change of time and venue, as he was unhappy about being interviewed at the small home where his wife worked.

39.	Mr O telephoned and then wrote to the Duty Inspector informing CSCI of the alleged incident. In this letter he asserted that the Appellant went home “each Saturday night to collect bedding”.  Mr O further stated that the Appellant had admitted this allegation of multiple absences. He also stated he had already spoken to a POVA specialist about the allegations.

40.	On 26th July 2006 Mr A and Mr O went ahead with the disciplinary meeting, although the arrangements were unchanged.  The Appellant did not attend, and there is no record of any attempt by either Mr A or Mr O to contact him by telephone to find out why he was not there.  The Appellant was summarily dismissed in his absence.  In his Minutes of the Meeting Mr O recorded: “by his own admission the Appellant regularly left the service users unattended for 15 minutes on a Saturday night”.  Mr O immediately emailed the PCT.

41.	The following day, the 27th July 2006, Mr A wrote to the Appellant informing him that the outcome of the meeting was his dismissal for gross misconduct.  Mr A then referred the Appellant to the Secretary of State’s manager of the POVA list on 20th August 2006, stating that the Appellant had been dismissed for misconduct consisting of neglect in that he regularly left service users unattended, which placed them at risk of harm.

42.	On 21st September 2006 the Appellant was provisionally placed on the POVA List.  He was confirmed on that list on 21 June 2007 on the basis that his employer reasonably considered the Appellant to be guilty of misconduct which harmed or placed at risk of harm a vulnerable adult, by leaving service users in his care unattended on a number of occasions and that he was considered unsuitable to work with vulnerable adults because he failed to understand the seriousness of his actions. At the same time he was also confirmed on the POCA list and the Education List 99.  The Appellant lodged his appeal against his inclusion in the POVA list with the Tribunal on 12th September 2007.

The Respondent’s Case 

43.	The Respondents asserted that the single incident on 17th June 2006 of leaving service users alone, which was admitted by the Appellant, was sufficient to amount to misconduct.  

44.	In addition, the Respondents contended there was a course of similar conduct that also amounted to misconduct, namely that the Appellant left the home in similar circumstances on more than one occasion in addition to the admitted incident of 17th June 2006.  The evidence for this was provided by Mr S:  despite some inconsistencies as to timing and with due allowance for his learning difficulties, the Respondents said this contained a basic core of truth about the Appellant leaving service users unattended each Saturday that he worked, save for two occasions.  Mr S had been present and knew where the Appellant was going because he had told him:  this was borne out by the fact he had told Ms W, another service user, that the Appellant had ‘gone home again for his bedding’ and other service users knew about it.  

45.	Whether or not Mr S had told Mr A, it was undisputed he had told Mr O. Mr S’ account had been consistent from that point.  Notwithstanding any potential explanation as to why he had reported the matter at that particular point, it was clear that this was the point at which he and the other service users had plucked up courage to say something. 

46.	In addition, when initially questioned about the allegations the Appellant had admitted to Mr A he had left the service users unattended.  Subsequently his accounts had been varied and inconsistent.  He was clearly unsuitable to work with vulnerable adults by virtue of the misconduct, his apparent lack of understanding of the serious nature of his actions and the risk to which he exposed the service users.  As the sole support worker in charge of 9 adults, the purpose of his role was to provide the presence of an adult that service users knew they could call upon if necessary.  In addition, he was aware of their needs and functioning and it should have been quite obvious it was wholly inappropriate to leave them alone.  He had also accepted it was not the general practice to do so in this setting since he agreed he was unaware anyone of anyone doing anything similar.

47.	The Respondents relied on Mr O’s evidence to supply corroboration for Mr S’ evidence.  His response to being told the Appellant had left to get his bed linen was to seek advice from outside agencies, contact Mr A and set in motion the Appellant’s suspension.  He did not conduct a full internal investigation in the sense that, for example, he did not interview the service users separately or ask the Appellant for his version of events.

The Appellant’s case

48.	The Appellant said residents regularly left the home unsupervised and he was led to believe in his induction it was permissible to them on their own for short periods of time as they were not at risk.  In addition, they lived independently from the house in which night staff slept, only one member of staff was ever present at night and a communal intercom system was the only link. He said Mrs G had also advised him he was entitled to a 20-minute break during each sleep shift, which could be taken off site.   

49.	The Appellant said that at the time he did not know what a care plan looked like, had not been shown individual care plans during his induction and was not sure he had seen them thereafter since he had never seen those that were in the bundle.  He said he was not fully aware of the needs and functioning of service users and had learnt about them through medication records and ‘some other information’.  This was less detailed than the care plans in the bundle, but he said he was unaware of any information about individual users who were specifically at risk if left alone.  He also said he had not been provided with any further training.

50.	The Appellant was adamant that the only occasion he had ever left the premises to collect bedding was on 17th June 2006 when he had only left for a very short period of time and had not concealed his departure.  He denied leaving the residents unattended on a regular basis and said he had told service users where he was going each time he left, making it clear he was going out to his car to get his bedding.  The only time he had specifically said he was going home was on 17th June 2006.  He recalled 2 other occasions when he did not bring his own bedding, but said on both these occasions his wife brought it to him.  He also vigorously asserted that Mr S had not been present at the home on a number of occasions when he had been at work and was certain Mr S had been on holiday and had also been staying with his mother at other times.  Mrs M was equally adamant that her husband had only left the home unsupervised on the one occasion.

51.	The Appellant accepted he should not have left service users on their own but said he had not intentionally compromised their health or safety, having ensured they had been given their medication and were in their bedrooms.  He said he would never have done it if he had known the home’s official policy was that a member of staff should remain on the premises at all times.  He now fully realised the seriousness of what he had done as something that was reckless and put the service users at risk. He described the ensuing events as agonising, but a process that had been a valuable lesson that had provided an opportunity to fully research all the legal and other requirements in the care field.  He now knew the quantity of knowledge and skill required, including the duty to establish exactly what service users needs were, which included checking the detail of their care plans, and how to provide the service they needed.  He was fully aware he had done wrong and was now certain that if he were in the same position, the incident of 17th June 2006 would never happen again.

52.	The Appellant was very clear that from the time of his suspension to his dismissal the home’s management had not approached him to give his explanation of events.  

Conclusions and Findings

Misconduct on 17th June 2006

53.	Previous cases have provided a number of examples of single acts of omission or commission that have been enough to establish misconduct.  For example, in the case of Matswairo v Secretary of State [2007] PVA 0937, the appellant left service users in order to top up her mobile phone, a single incident that was found to be misconduct.  In this case we agree with the Respondents that the Appellant’s admission of misconduct on 17th June 2006 is sufficient in and of itself to amount to misconduct for the purposes of the Act.  Common sense alone should have told the Appellant that it was not acceptable to leave these vulnerable adults by themselves late at night. 

Course of conduct amounting to misconduct 

54.	Three shifts were relevant to this case:  the first was a night shift from 8 pm on Friday to 2pm on Saturday, a day shift from 2 pm to 8 pm on Saturday, followed by another night shift to 8 am on Sunday.  The evidence shows that for a substantial part of the time, the Appellant worked on his own.  Effectively, he worked a total of 3 shifts from 10 am on Saturday to 4 pm on Sunday including a night shift starting at 11 pm and worked alone from 2 pm on Saturday to 8 am on Sunday and with one other person thereafter.  On 17th June 2006 Ms D, the Deputy Manager worked from 8 pm on Friday to 2 pm on Saturday, doing the sleep in shift on Friday night.  There were clear indications from the oral evidence that this practice was not rigidly adhered to and the culture of the home was based on some arrangement between staff that it was permissible to arrive late for work and to leave early.

55.	We believed there was considerable potential for misinterpreting what the Appellant might have said when leaving the building.  It is perfectly possible he could have said he was ‘just leaving’, meaning that he was leaving the building to get his bedding from the car or to go to the adjoining part of the home.  But it is simply not possible to establish with any reliability what happened and how it was perceived because no-one interviewed the Appellant or the residents to establish precisely what was said and what was understood by it.  Mr O could offer no explanation as to why, at this point, no internal investigation was undertaken, which would be the usual management practice to ensure fairness. It would also ensure that any subsequent management action was undertaken with all the facts to hand.  Under further questioning he conceded that throughout the chain of events he had made no effort to contact the Appellant and hear his side of the story.

56.	Therefore there was no internal management investigation and it was clear from Mr O’s evidence that the Appellant was never given any chance to prepare his case.  Within less than a week he was sacked by someone he met for the first time at this hearing.  Mr O was responsible for leading what was by any judgment an inadequate investigation:  he quite properly sought advice and identified the correct procedure in his subsequent email, but the fact remains that, despite his professed experience, he never actually followed this procedure and nothing resembling best practice ever happened.  This failure substantially undermined everything he did subsequently and rendered his evidence in support of Mr S virtually worthless.

57.	The result of the flawed investigation was the Appellant’s dismissal and the unfortunate, if not invidious burden on Mr S of being the Respondent’s only credible witness to the actual events in the absence of any adequate written records.  He was never interviewed on a one to one basis to check his understanding of the events in full and effectively became the only witness upon whom the Respondent could rely for direct evidence of these events.  That is not acceptable for any resident, let alone a vulnerable adult with learning disabilities.  

58.	There is no doubt that Mr S believed what he was saying and that he had no other gripe about the Appellant, who was clearly not disliked by residents:  Mr S stated on more than one occasion and unprompted that the Appellant readily got them takeway food and was ‘a good man’.  We also note Mr O conceded in oral evidence that it was he who had come up with the figure of 20 occasions on which the Appellant had left the premises, and this was based on the number of Saturday nights the Appellant could have worked a sleep-in shift.  There was no evidence in the form of rotas for the period in question to support this.  We also note Mr S cited the same figure of 20 in his written statement in a context almost identical to that of Mr O’s evidence.  There was a logical credibility in Mr S telling Mr A about the Appellant’s absence first and telling Mr O thereafter.  But, in the absence of any supporting evidence, the issue as to his understanding of the allegations about what had happened was never resolved in the course of the hearing. Indeed, there were variations in the timings given, even from Mr O.

59.	Whilst some caution must be exercised in weighing up the evidence from any spouse, we found Mrs M to be a credible witness.  She clearly stated she knew he had left on 17th June and said she had warned her husband it was unacceptable to leave residents on their own.  She gave the impression of a sincere and quietly determined character who was more than capable of ensuring he did not repeat the incident.  The Appellant also came across as sincere, and it was notable that despite what must have been a difficult situation for all of them, the interaction between him and his wife and Mr A was notably comfortable.  Mr A clearly bore no malice towards Mrs M, who in turn stated she was happy to continue to be employed by him.  

60.	On the balance of probabilities the allegations that the Appellant was guilty of repeated incidents of leaving residents is simply not proven.

Suitability 

61.	An assessment of the Appellant’s suitability must centre on, albeit not exclusively, consideration of the issue of absenting himself from the home.  Since we have concluded he was not guilty of repeatedly leaving residents alone, there is no burden of proof on him to show for the purposes of suitability that he only left on the one occasion.  However, since he has admitted leaving on 17th June and we are satisfied that this single act amounts to misconduct, he must show that he is nevertheless suitable to work with vulnerable adults and/or children.

62.	Relevant factors material to the analysis of suitability must include the Appellant’s understanding of what he was expected to do, the adequacy of his knowledge, training and supervision, as well as the degree to which he has learnt from the experience and the state of his current knowledge and awareness.  As far as the single admitted incident is concerned, it is clear that the Appellant’s subsequent justification of what he had done carries some consistency in the light of his induction.  There is nothing to contradict his view that, at the very least, he was unsure and confused about what he could or should do or not do.  The fact remains, however, that whatever he was told he had not fully grasped the risk involved in leaving residents completely on their own, for however short the period of time.

63.	A Residential Services were aware they were taking on a totally inexperienced teacher who had never worked in a care home before.  They also knew he had a full time job and could not attend training. In terms of the training he actually received, it was simply inadequate to give him a DVD.  During supervision he was told he would have to go for POVA training and the evidence shows he did so.  

64.	We have great concern that the Appellant appears to have received an inadequate induction and inadequate training for the task of looking after vulnerable adults.  The Common Induction Standards 2005 to which he referred were not actually in force until October 2006 and were preceded by TOPSS, which set clear standards required for induction training at that time.  These contained similar principles to the 2005 Standards, which were not followed in this case.  It is also all too easy to see how the Appellant might have taken his lead from the somewhat laissez-faire attitude of the staff around him who had more experience than he did.  The induction itself is difficult to quantify and it is clear the Appellant was left alone immediately in circumstances where the service users were fairly articulate and mobile.  We are not convinced he was equipped with the necessary in depth knowledge or insight into the residents’ needs.

65.	In his evidence the Appellant showed a lack of knowledge and awareness of care plans for the residents.  This was not necessarily his fault since he clearly should have been given more information and certainly more details than were indicated by Mrs G saying he had been shown where the care plans were in the office.  The care plans submitted were undated and we were uncertain as to their provenance.  Moreover, the quality of care plans were criticised during the inspection and we were unsure about which documents the Appellant would have had the chance to see in any event.  The Deputy Manager was not called to give evidence although potentially she could have clarified this.  The Appellant was unfamiliar with the term and said it was the first time he had seen these documents.  It was clear that such information that he had picked up was informally or from medical records.  That is not to detract from the fact that he should have been more pro-active in finding out about each resident’s individual needs.

66.	The Appellant honestly admitted from the outset that he had left the premises on 17th June 2006.  He clearly thought it was acceptable to slip out for a short period because the two houses were separated from each other anyway.  This in itself demonstrated his naïvity and lack of common sense:  it also endorsed the view recorded in the written evidence that his one great drawback was that he was not proactive.  However, this was his first job in a field with which he was wholly unfamiliar and these failings should have been picked up by the manager and dealt with in supervision.  

67.	Mr S clearly stated that he had told Mr A less than a week later about the Appellant leaving the home and did so before the meeting with Mr O.  This lent credibility to the view Mr A knew about the incident of 17th June and had warned the Appellant thereafter it was not acceptable to leave residents on their own.  We are mindful that the Appellant told us he did not recall that reference to leaving residents on their own was referring to anything other than him closing the office door.  But we note Mr A recorded the fact that he had addressed 3 key areas with the Appellant in supervision, of which this was one.  We find it difficult to believe that ‘leaving residents on their own’ merely means shutting a door.  We are of the view that the Appellant is confused about the record and a more realistic interpretation is that this refers to the incident of 17th June.  Mr S’ evidence makes it clear he told Mr A.

68.	The only reliable evidence of misconduct is the single incident of 17th June 2006, which the Appellant himself has admitted.  We do not regard this as sufficient to show unsuitability.  The Appellant was entirely new to the field of care and this job was not his profession or calling:  the situation might well have been different if he had been a manager or a professional or member of staff with long experience.

69.	As to the Appellant’s future suitability, we note the clear indications that he needs more understanding of the needs of service users, how best to provide for them and of the importance of care plans.  Nevertheless, he has undoubtedly learned and suffered extensive consequences from this experience, including the loss of his principal teaching job.  If Mrs M and he are to pursue their stated intention of opening a home together either here or abroad, the Appellant will need to address his lack of specific training.  

70.	In conclusion, we find the Appellant guilty of a single incident of misconduct but not unsuitable to work with vulnerable adults.  It follows that his appeal against his inclusion on the POVA list is upheld and there is no need to consider any issues in relation to his inclusion on the POCA list or List 99, from which his name should be removed.

Concluding Remarks

71.	We have had cause in other cases to comment on the conduct of cases and the issues of disclosure.  The concept of equality of arms means that it is incumbent upon the more powerful party to make greater efforts to ensure that the approach is fair and transparent and provides all the evidence needed, negative or otherwise, for the other party to conduct their case effectively and for the Tribunal to reach a proper decision based upon the fullest and fairest presentation of the relevant evidence. 

72.	That principle is even more important in cases involving Appellants whose livelihoods may be at stake and who are not legally represented or likely to be by the time of the hearing, whether through financial difficulties or otherwise.  It is a principle worth re-stating that the stronger party must be doubly careful to ensure that full disclosure takes place before the hearing in order to ensure that the fullest possible evidence is presented to the Tribunal.

73.	The Respondents stated quite fairly that disclosure could only be made of documents that were in the Secretary of State’s possession.  Ms Davies said the Appellant had not requested disclosure of the shift records and, furthermore, the Respondents had not anticipated questions about the disciplinary or investigation processes.  However, as she pointed out, the Appellant did request documentation from the home’s records, primarily in order to show Mr S’ whereabouts when the Appellant was working at the home.  It would appear that the current manager, seemingly with the approval of Mr A, was reluctant to disclose this and deemed it not relevant to the appeal.  

74.	There are several important issues here.  Firstly, the process of disclosure is not the same as the task of producing the bundle of final evidence that is regarded by both parties as relevant to the decision to be made by the Tribunal and is necessary to reach a fair conclusion.  It is not for those running the home, and especially not those who have made the initial decision to dismiss, to decide what is relevant and what is not.  Full and frank disclosure requires the Respondents to make every effort to obtain all the records for the relevant period and for the Appellant to be afforded a proper opportunity to scrutinise them in order to decide what may be relevant to his appeal.  In this case an inadequate process of disclosure hampered both the parties and the Tribunal.

75.	Secondly, it must have been obvious to anyone familiar with the requirements of good practice in both vulnerable adult investigations and disciplinary procedures that in this particular case neither were adequate.  The consequences for this Appellant were frankly quite disastrous.  He not only lost his part time job, but also his full time teaching job.  Regardless of whether that was regarded as the right outcome and regardless of any wrongdoing or behaviour on his part, the fact remains he has good cause to feel somewhat aggrieved in these circumstances.

76.	Thirdly, as the Respondents freely admitted, the case against the Appellant rested upon the core of Mr S’ evidence, corroborated by Mr O, and there was no written evidence to support this.  As the Respondent’s key witness and the sole vulnerable adult to be called to give evidence, this placed Mr S in an unfair position.  That was compounded by the failure to produce any written evidence likely to support his contentions as to the extent of the misconduct and, therefore, undermined the evidence about the Appellant’s suitability.

77.	Finally, we observe that these events have not only been unfair to the Appellant, but have also been unfair to the residents.  It is a statement of the obvious that it is critical to good practice to carry out a thorough, properly conducted and recorded investigation:  failure to do so not only compromises those involved but risks a failure to uncover bad or even worse practice.  Protection of the vulnerable involves an understanding that thoroughness in itself may be the best form of protection:  this makes it possible to establish that what has precipitated the investigation is either merely the tip of the iceberg or nothing more than the original incident itself.  In this instance Mr A’s investigation revealed that staff were working short hours.  We are not suggesting a more detailed investigation by Mr O would have revealed anything more, or less, simply that it is dangerous not to know more.

78.	The POVA officers are not immune from criticism since when Mr O telephoned them he should have been told to come back when he had conducted a proper investigation.  It is not a matter for this Tribunal to judge the reasonableness or otherwise of the Secretary of State’s process, but we offer these comments in a common desire to contribute to best practice in a relatively new and challenging area.  We observe that, in the absence of a proper investigation and the observations or advice of POVA officers, ‘reasonable cause to believe’ cannot be sustained or properly supported:  the letters still do not draw out the real information needed about the events and the process.  

79.	It is not the role of this Tribunal to judge whether due process has been followed in relation to employment law.  However, we note there was a total of 6 days between the allegation and the dismissal, including 2 days between the allegation to Mr O and the Appellant’s suspension and a further 4 days until the Appellant’s dismissal.  The speed with which he was dismissed without a proper opportunity to put his case in the context of the comments and conclusions above has merely further served to undermine the credibility of the allegations against the Appellant.  Both employment law and the home’s own Disciplinary Code requires reasons to be given in writing, a principle reinforced in correspondence, but not followed in practice.

Decision 

APPEAL ALLOWED

This decision is unanimous.

Ms L Goldthorpe
Mr P Sarll
Mr M Flynn
Date: 29th May 2008