Neutral Citation Number: [2008] EWHC 1891 (Admin)
Case No: CO/2101/2007
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/08/2008

Before :

THE HON. MR JUSTICE GOLDRING
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Between :

	SINI JOYCE	Appellant	
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	SECRETARY OF STATE FOR HEALTH	Respondent	
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(Transcript of the Handed Down Judgment of
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Jamie Carpenter (instructed by Royal College of Nursing Solicitors) for the Appellant
Jonathan Moffett (instructed by The Treasury Solicitor) for the Respondent

Hearing dates: 9 July 2008
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Judgment
Mr Justice Goldring: 
Introduction
1.	At issue in this appeal from His Honour Judge Pearl sitting as President of the Care Standards Tribunal is the construction of the word “misconduct” in section 86(3) of the Care Standards Act 2000.  
The relevant legal provisions
2.	The Care Standards Act 2000 was enacted “to make provision for…the protection of children and vulnerable adults.”
3.	Part VII deals with the “Protection of Children and Vulnerable Adults.”
4.	By section 80(2), a care worker is:
“(a) an individual who is or has been employed in a position which is such as to enable him to have regular contact in the course of his duties with adults to whom accommodation is provided at a care home…
(c ) an individual who is or has been employed in a position which is concerned with the provision of personal care in their own homes for persons who by reason of illness, infirmity or disability are unable to provide it for themselves without assistance.”
5.	By section 81:
“(1) The Secretary of State shall keep a list of individuals who are considered unsuitable to work with vulnerable adults.
(2) An individual shall not be included in the list except in accordance with this Part [of the Act].”
6.	By section 82:
“(1) A person who provides care for vulnerable adults (“the provider”) shall refer a care worker to the Secretary of State if there is fulfilled-
(a) any of the conditions mentioned in subsection (2); or
(b) the condition mentioned in subsection (3).
			(2)  The conditions referred to in subsection (1)(a) are-
(a) that the provider has dismissed the worker on the grounds of misconduct…which harmed or placed at risk of harm a vulnerable adult…
(3)	The condition referred to in subsection (1)(b) is that-
(a) In circumstances not falling within subsection (2), the provider has dismissed the worker, he has resigned or retired or the provider has transferred him to a position which is not a care position…
(4) if it appears from the information submitted [by the provider] with a reference under subsection (1) that it may be appropriate for the worker to be included in the list kept under section 81, the Secretary of State shall:
(a) determine the reference in accordance with subsections (5) to (7): and 
(b) pending that determination, provisionally include the worker in the list.
(5) The Secretary of State shall:
	(a) invite observations from the worker on the information submitted with the reference and, if he thinks fit, on any observations submitted under paragraph (b): and
(b) invite observations from the provider on any observations on the information submitted with the reference and, if he thinks fit, on any other observations under paragraph (a).
(6) Where:
(a)	the Secretary of State has considered the information submitted with the reference, any observations submitted to him and any other information which he considers relevant; and
	(b) in the case of a reference under subsection (2)(d), the provider has dismissed the worker or, as the case may be, has confirmed his transfer on such grounds as are there mentioned, the Secretary of State shall confirm the worker’s inclusion in the list if subsection (7) applies; otherwise he shall remove him from the list.
(7) This subsection applies if the Secretary of State is of the opinion-
“	(a) that the provider reasonably considered the worker to be guilty of misconduct…which harmed or placed at risk of harm a vulnerable adult; and 
	(b) that the worker is unsuitable to work with vulnerable adults.”
7.	Section 86 deals with “Appeals against inclusion in the list.”  By section 86:
(1) An individual who is included (otherwise than provisionally) in the list kept by the Secretary of State under section 81 may appeal to the Tribunal against-
“the decision to include him in the list…”
(2) Subject to subsection (5), an individual who has been provisionally included for a period of more than nine months in the list kept by the Secretary of State under section 81 may, with the leave of the Tribunal, have the issue of his inclusion in the list determined by the Tribunal instead of by the Secretary of State.
(3)	If on an appeal [under subsection 1] or determination [under subsection (2)] under this section the Tribunal is not satisfied of either of the following, namely-
(a)	that the individual was guilty of misconduct…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 individual’s 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.
8.	By section 88 a person may apply to be removed from the list after 10 years.
9.	By section 89 a provider who provides care for vulnerable adults may not offer employment to anyone on the list.
10.	Regulation 14 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 provides that the tribunal may exclude evidence from consideration on the grounds:
“…that it would be unfair in all the circumstances to consider it.”
11.	By Regulation 32:
“(1) The applicant may amend the reasons he gives in support of the case…but only with the leave of the President or the nominated chairman (or at the hearing, with the leave of the Tribunal).
(2)  The respondent may amend the reasons he gives for opposing the applicant’s case or application for leave…but only with the leave of the President or the nominated chairman  (or at the hearing, with the leave of theTribunal.”
12.	By section 9(6) of the Protection of Children Act 1999, an appeal lies to the High Court on matters of law.
The background facts
13.	The appellant was a registered general nurse at the Bankhouse Nursing Home, Poulton-le-Fylde, Lancashire.   It was a home for dementia patients owned by BUPA.  On the night of 27/28 September 2005 there was an unannounced inspection of the unit.  The appellant and another nurse, Ms Joyal, were asleep in the residents’ lounge.  Its doors were tied shut from the inside.  The door to the unit, which should have been locked was allegedly ajar.  The residents’ lounge was said to be untidy.  There was an incontinence pad on the floor.  Medication was left out on the shelf.  The appellant and Ms Joyal were suspended immediately.  
14.	On 28 September 2005 Mrs. Ogden, the home manager, wrote to Mrs. Joyce in order:
“…to confirm that following the allegations of sleeping on duty, you are suspended from your duties whilst a full investigation is conducted.”
15.	On 29 September 2005 Mrs. Ogden made a statement.  She said the door to the suite was not locked.  The door to the lounge was closed.  An easy chair was at the back of the opening to the doors.  Once entry had been gained, Mrs. Joyce and Ms Joyal were on easy chairs, their feet, covered with blankets, were on dining chairs.  They appeared to be asleep.  The lounge was very untidy.  There was an incontinence pad on the floor in the corner of the dining area.  There was a medicine pot on a shelf with a capsule in it, later discovered to be an Immodium capsule.  The small tables in the lounge had not been wiped over.  No effort had been made to tidy the lounge area.
16.	On 4 October 2005 there was an investigatory hearing.  A number of the topics mentioned by Mrs. Ogden were raised with Mrs. Joyce.  They included the lounge doors having been tied together, the chairs having been placed behind them, the immodium tablet left out in a medicine pot on a shelf in the lounge, falling asleep on duty and the front, keypad door not being shut.
17.	On 5 October the appellant was called to attend a disciplinary hearing.  The charge was “sleeping on duty on the night of 27/28 September 2005, neglecting the residents in your care.”
18.	On 10 October 2005 there was a disciplinary hearing.  It lasted 1.5 hours.  Mrs. Joyce was asked about the tying of the lounge doors and the fact she had been asleep.  Mrs. Joyce blamed the other nurse for tying the doors.  The claimed reason was to prevent an aggressive resident leaving the lounge and disturbing others.
19.	On 11 October 2005 she was dismissed.  The reason was that:
“…during the night shift of 27th September 2005 both you and the other nurse on duty went to sleep leaving vulnerable residents unsupervised and at risk, during which time lounge doors were also tied shut to prevent some residents from leaving the lounge area.”
20.	On 28 October 2005 BUPA referred the appellant to the Protection of Vulnerable Adults (PoVA) List at the Department of Health under section 82(1) of the Care Standards Act 2000.  The alleged misconduct was defined as “sleeping on duty.”  
21.	Accompanying the BUPA reference were various BUPA documents.  They included Mrs. Ogden’s statement and the hearing notes.
22.	On 23 November 2005 the Secretary of State wrote to Mrs. Joyce: 
“You have been referred to the Protection of Vulnerable Adults (PoVA) List by BUPA…following your dismissal from your post as Registered Nurse…In the light of this information, a decision has been made by the Secretary of State…to provisionally include you on the PoVA…list…Based on the information we have received relating to your inclusion on the PoVA List, the Secretary of State…has decided provisionally to include your name on the PoCA List.”
23.	The PoCA List is a similar list kept under the Protection of Children Act 1999.
24.	On 8 August 2006 the listings were confirmed.  The Secretary of State wrote:
“I am now writing to inform you that the Secretary of State has concluded that-
a)	Your former provider reasonably considered you to be guilty of misconduct which harmed or placed at risk of harm a vulnerable adult, sleeping on duty and leaving vulnerable adults unsupervised and
b)	that as a result of this misconduct you are considered unsuitable to work with vulnerable adults.
Consequently having considered all the information available she has decided to confirm your inclusion on the PoVA list.
The Secretary of State has also considered this information and has decided to confirm your inclusion on the…PoCA list…”  
25.	On 16 August 2006 the appellant’s solicitor asked the Secretary of State to provide full written reasons for the decision “[i]n order that I may best advise my client with regard to any appeal against your decision…”  
26.	On 21 August the Secretary of State responded: 
“…the reason for the decision to confirm [Mrs. Joyce on both] lists is that after consideration it was concluded that “her former provider reasonably considered (her) to be guilty of misconduct which harmed or placed at risk of harm a vulnerable adult, by sleeping on duty and leaving vulnerable adults unsupervised and that as a result of this misconduct (she is) considered unsuitable to work with vulnerable adults.” (original italics)
…your client now has a right of appeal under section 86…to an independent Tribunal…”  
27.	On 23 March 2006 Mrs. Joyce filed a “notice of appeal.”  She said she had not been guilty of misconduct.  She stated:
“…I note that the basis for including my name on the PoVA List was simply that I slept on duty.  Although I accept that I slept whilst on duty, I submit that does not amount to “misconduct” within the meaning of s 82 of the Care Standards Act…
…[that Act] is aimed at conduct which is tantamount to abuse…
Under no circumstances could a single incident of unintentional sleeping for no more than ten minutes be described as “abuse”…”
28.	The Secretary of State responded to the appellant’s notice of appeal.  In section 5 she gave her “reasons for opposing” the appeal:
“It is the view of the Secretary of State that the Appellant has been correctly confirmed on the POVA and POCA lists.
It is the Secretary of State’s submission that the Applicant (sic) was guilty of misconduct by reason of the following incidents:
a)	Whilst working on a night shift in the dementia unit of…the home…the Appellant, (who was the nurse in charge) was complicit in allowing her colleague to block and tie the doors to the lounge…whilst they and three residents were inside the lounge, thereby barring the entry route to the residents outside the lounge;
b)	The Appellant then proceeded, with her colleague, to go to sleep in the lounge, leaving residents uncared for and neglected, and rendering her unable to immediately respond to any of the residents’ needs or any emergencies;
c)	The Appellant failed to administer medication to a resident and left the medication sitting out in the Home, accessible to other residents, thereby endangering the resident who was denied medication, and endangering other residents who could have taken the medication;
d)	The security door to the dementia unit was found to be unsecured, which the Appellant, as the nurse in charge, had failed to realise, thereby endangering the lives of residents who may have left the unit by the unsecured security door;
e)	The unit was found to be in a state falling below the requisite standards of health and hygiene whilst the Appellant was the nurse in charge.
The Secretary of State considers that, in these circumstances, the Appellant’s misconduct harmed, or placed at risk of harm, the residents under the Appellant’s care.
The Secretary of State submits that based on all the evidence provided by BUPA…the nature of the incidents of misconduct and the Appellant’s behaviour at the home demonstrate that the Appellant is a risk to vulnerable adults placed in her care…It is submitted that the Appellant’s name was correctly included on the POVA list, and cross-referenced to the POCA list, and that the appeal should be dismissed.”
29.	The facts reasons for opposing the appeal were gleaned by the Secretary of State from the documentation BUPA had sent her when the reference was made.
30.	Mr. Carpenter, on behalf of Mrs. Joyce took as a preliminary point, as he has before me, that it was not open to the Secretary of State to rely as misconduct on anything other than that which was referred to her by BUPA, namely, “sleeping on duty.”  It was not open to her to rely on allegations a), c), d) and e).  She was not entitled to rely on all the evidence submitted to her by BUPA.  
31.	On 10 January 2007 the President ordered a preliminary hearing.  On 19 February 2007 he delivered his judgment.  He did not accept Mr. Carpenter’s argument.  He directed that the tribunal was not limited to considering allegation (b).
The argument
32.	As Mr. Carpenter rightly submitted, the issue is whether “misconduct” is without any limitation once the case is on appeal before the tribunal.  It is necessary throughout to bear in mind the draconian nature of this legislation, he submitted.  As was made clear in R (Wright) v Secretary of State (reported at first instance at [2008] QB 422 and in the Court of Appeal at [2008] 1 All 887), the procedure had to be Article 6 compliant.  Aspects of the scheme (provisional listing without a chance to make representations) have already been found to be unfair.  He emphasised what Stanley Burnton J (as he then was) said in paragraph 30 of R (Wright) v Secretary of State at first instance (at page 838) when considering whether conduct which took place before the 2000 Act could be relied upon in proceedings under it.
“If the 2000 Act operates unfairly, the court will seek to interpret it restrictively, on the basis that Parliament must be deemed to have wanted any unfairness to be minimised….The 2000 Act…is clearly intended as a measure to protect a vulnerable section of the public, and I should be reluctant to conclude that even obviously dangerous misconduct before [its]…commencement…could not lead to inclusion in the POVA list.”
33.	Stanley Burnton J’s decision that the Tribunal could rely on misconduct which had taken place, or the relevant provider’s opinion had been formed, before the commencement of the Act, was upheld by the Court of Appeal.   
34.	Mr. Carpenter made four essential points.  I shall take each in turn.  
The appeal point 
35.	The hearing before the tribunal is an appeal from the Secretary of State’s decision, submitted Mr. Carpenter.  If the Secretary of State’s argument is right, that decision becomes irrelevant.  He may before the tribunal on an appeal adduce any evidence of misconduct he wishes (subject to the tribunal’s discretion to refuse to admit it).  
36.	The scheme of the Act is clear, Mr. Carpenter submitted.  The misconduct which the Secretary of State has to consider under section 86(7), although not defined or qualified, must be that considered by the provider.  The misconduct which the tribunal has to consider, again not defined or qualified, is that which formed the basis of the Secretary of State’s decision.  That is what is being appealed.
The President’s decision on this aspect
37.	The President said this:
“12…The Tribunal, under its jurisdiction as set out in s.86(3), must make findings of fact. Prior to the Tribunal considering the evidence, no actual findings may have been made by the Secretary of State. The test in s.82(7) does not oblige the Secretary of State to make findings of fact. Her responsibility is limited to forming an opinion “that the provider reasonably considered the worker to be guilty of misconduct.” If the Secretary of State is so satisfied, and the worker appeals, it is often only then that the Secretary of State, when preparing an appeal, discovers further evidence of other alleged misconduct to support continuing her opposition to the appeal. Thus it is my view that s86(3), by not defining ‘misconduct’ by reference to s82(7), enables the Tribunal to consider evidence that was not available to the Secretary of State when she was considering whether “the provider reasonably considered the worker to be guilty of misconduct.” I agree with Mr Moffett that on a proper construction of s86(3)(a) there is no restriction on the misconduct which may be considered by the Tribunal. 
13. This is the approach that has been taken by this Tribunal over a number of years in relation to the Protection of Children Act 199 s4(3) and s3(6); where identical wording to that of the Care Standards Act 2000 appears in the context of the PoCA list.”
38.	Mr. Carpenter submitted the President has confused the tribunal’s freedom to hear evidence and find facts with its freedom to consider any allegations.  It may hear evidence in respect of any allegation whether or not previously considered by the Secretary of State.  What it does not have is the freedom to hear any allegation.  If the President is right, what the provider did is irrelevant.  It would then amount to no more than a trigger for an unrestricted series of allegations.
Hansard
39.	Mr. Carpenter submitted that given the ambiguity of the meaning of section 86(3), I am entitled to have regard to what was said by the Member of Parliament who introduced what are identical provisions in the Protection of Children Act 1999.  He submits that the criteria set out in Regina v Secretary of State for the Environment, Transport and the Regions, Ex parte Spath Holme Ltd [2001] 2 AC 349 are fulfilled.  As Lord Bingham of Cornhill said at page 391c:
“In his leading speech [in Pepper v Hart [1993] AC 593]…Lord Browne-Wilkinson made plain that such reference was permissible only where (a) legislation was ambiguous or obscure or led to an absurdity; (b) the material relied on consisted of one or more statements by a minister or promoter of the Bill together, if necessary, with such other parliamentary material as might be necessary to understand such statements and their effect; and (c) the effect of such statements was clear…In my opinion, each of these conditions is critical…”
40.	The ambiguity, submitted Mr. Carpenter, is that misconduct is not defined.  The word “the” is omitted.  It is not clear whether Parliament intended to limit “misconduct.”  If the Secretary of State is right, it leads to absurdity.
41.	On 17 March 1999 the promoter of what was a private member’s bill, Ms Shipley, said this about the individual’s right of appeal:
“Clause 2(3) provides that if it appears from information provided by an organisation that it might be appropriate to include an individual on the list, the Secretary of State must determine the reference in accordance with the strict procedures laid down…, and such an individual is provisionally included on the list.
If, after considering all the relevant information the Secretary of State is of the opinion that the referring organisation reasonably considered the individual was guilty of misconduct…, he must confirm the individual’s inclusion on the list.
The individual has a right of appeal to the tribunal.  The tribunal has a fact-finding role and it may carry out an investigation of the facts and the merits of any application.  If the tribunal is not satisfied that the individual is guilty of the alleged misconduct…it must allow the appeal…otherwise the tribunal must confirm the Secretary of State’s decision.” (emphasis added)
42.	Mr. Carpenter submitted that when Ms Shipley was speaking of the alleged misconduct, she was obviously referring to the misconduct alleged by the provider and considered by the Secretary of State.   
43.	On 24 May 1999, what is now section 4(2) of the Protection of Children Act 1999, which in materially the same terms as section 86(2) of the Care Standards Act 2000, was considered.  Ms Shipley said this:
“Clause 4 has been amended to provide a role for the tribunal on a rather wider basis than was originally envisaged…[I]t will [now] be possible, with the leave of the tribunal, for individuals listed only provisionally to ask to determine their cases when they have been listed for more than nine months…concerning the misconduct of which the appellant is alleged to have been guilty.”
44.	The “misconduct of which the appellant is alleged to have been guilty” must be a reference to the misconduct alleged by the provider, submitted Mr. Carpenter.  Ms Shipley was envisaging that the tribunal will consider that misconduct. 
45.	Mr. Moffett on behalf of the Secretary of State, submitted that when construing section 86(3), and the true nature of the appeal before the tribunal, regard must be had to the purpose of this legislation and what section 86(3) actually says.
46.	As to the purpose, it was summarised by Lord Justice May in his judgment in the Court of Appeal in R (Wright) v Secretary of State [2008] QB 422 at page 426E:
“There is an obvious and unchallenged public interest in having an appropriate system for protecting vulnerable adults and children from the risk of harm from unsuitable carers.  It is also necessary that any scheme takes a proportionate account of the rights of those who have worked and wish to continue to work as carers.”
47.	As to the statutory language, section 86(3) is clear.  “Misconduct” is not limited or qualified.  If Parliament had intended it should be, it could easily have said so.   Parliament’s intention was plainly that in order to fulfil its role as a protector of vulnerable adults and children, the tribunal should be able to consider as widely as possible.  Only in the tribunal, and for the first time, is the evidence properly be considered.  When the appeal is being prepared, further instances of misconduct may become apparent.  They may even become apparent during the hearing.  There is no plausible reason why Parliament should have intended that such instances of misconduct should not be considered.
48.	The statutory scheme envisages three main stages, submitted Mr. Moffett.  First, there is a reference by the provider.  The Secretary of State has no control over the nature and extent of any investigation by it.  Second, there is the provisional listing and confirmation of listing by the Secretary of State.  At this stage the Secretary of State’s role is a reviewing one. He does not reach his own view. He is heavily reliant on the provider, although he may invite observations from the provider and the care worker.  Finally, there is the appeal to the tribunal.  It conducts a hearing de novo.  Unlike the Secretary of State, it determines whether on the merits the individual is guilty of misconduct.  Although the proceedings are described as appeals, the reality is that this is a first instance tribunal.  It can examine the facts as they are at the date of the hearing.  
49.	There is good reason for such a tripartite scheme.  The Secretary of State as a matter of practicability must rely on references by providers.  She cannot police every care home.  Once the matter comes before the tribunal, its role must necessarily be more wide ranging.  Further instances of misconduct may become apparent during the preparation of the case.  They may become apparent during the hearing.
Unfairness and prejudice
50.	Mr. Carpenter’s second point was that the respondent’s interpretation is more likely to lead to unfairness and prejudice.
The President’s decision on this aspect
The President said this:
“14. Mr. Carpenter’s second submission, that of fairness and prejudice, is one to which I have given much thought….
15…I must of course bear in mind the needs to ensure compliance with Article 6…Mr Moffett referred me to Regulation 14 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002. This Regulation enables the Tribunal to exclude evidence from consideration on the grounds “(a) that it would be unfair in all the circumstances to consider it”. The Regulation is commonly used by the Tribunal, and any perceived unfairness to an Appellant may be ameliorated by a robust application by the Tribunal of this Regulation.”
51.	Mr. Carpenter submitted that as far as possible the legislation should be interpreted so as to maximise the fairness to the care worker.  Parliament is assumed so to have intended, as the observations of Stanley Burnton J in Wright made clear.  It is unfair to require a care worker for the first time to address fresh allegations before the tribunal, a long time after the events (here, 18 months ago).  Regulation 14, referred to by the President, does not provide sufficient protection.  Mr. Carpenter, in the end only faintly, firstly suggested that the Regulation would not permit part of the witness’s evidence to be excluded.  That seems to me plainly wrong.  Secondly, he submitted that the unfairness did not lie in the evidence but the fact the care worker has to respond to it.  That too does not seem to me right.  If because the care worker cannot respond the admission of the evidence would be unfair, then the tribunal may order its exclusion.  Thirdly, Mr. Carpenter submitted that situations in which the care worker is unable to respond would be rare.  She may be less well placed to meet the allegation.  
52.	The third point, as it seems to me, can fairly be dealt with in the trial process.  If the evidence is admitted, the tribunal, when assessing the response, will have to bear in mind any difficulties the care worker may have in dealing with it.  In the present case, the matters relied on by the Secretary of State were topics raised before and at the disciplinary hearing.
The scheme is predicated on the employer (or provider)
53.	Mr. Carpenter thirdly submitted that the scheme is predicated on the provider.  Parliament plainly intended to restrict the Secretary of State’s remit to the provider’s reference.  The Secretary of State has no jurisdiction if the provider does not dismiss for misconduct.  Albeit the Secretary of State may conclude there was more serious misconduct which justified a listing, if the misconduct relied upon by the provider in its reference did not, the Secretary of State could do nothing.  In such circumstances it would be wrong to allow the tribunal to exercise its jurisdiction without reference to the provider’s decision.
54.	Mr. Moffett repeated his submissions as to the true nature of the statutory scheme.  There is, he submitted, nothing inconsistent between the Secretary of State’s reviewing role in respect of provisional listing, and the tribunal’s greater and different role on appeal.  He does not suggest that the provider’s decision necessarily will play no part.  Often, it will be an important consideration.  However, that is not a reason to imply additional words into section 86(3)(a) as the appellant contends.
Jurisdiction to determine first instance applications
55.	Mr. Carpenter fourthly submitted that his interpretation of the provisions is supported when section 86(2) is considered.  Section 86(3) must contemplate a determination on the basis of the misconduct relied upon in the provisional listing.  It would be absurd in such a situation for the tribunal to consider areas of misconduct which the Secretary of State could not.  It would mean that the care worker’s remedy for inaction by the Secretary of State would place her in a worse position.
56.	Mr. Moffett submitted that when the tribunal is exercising its jurisdiction under section 86(2) it is performing a different function to that performed by the Secretary of State under section 82(7).  That inevitably follows from the different wording under the Act.  There is moreover good reason for the Tribunal to approach its determination under section 86(2) as it does under section 86(1).
The President’s decision on this aspect
57.	The President said this:
“16.  The third submission relied on by Mr. Carpenter is based on the power available to the Tribunal [under section 86(2)], to determine whether the worker should be confirmed on the list when no decision has been made by the Secretary of State within nine months from the date of placing  the worker on the provisional list…Mr. Carpenter…submits…[that] misconduct can [there] only be construed as relating back to the subject of the referral…
17. I can see the force of Mr Carpenter’s argument, and I must bear in mind also that the entire framework of the ‘provisional listing scheme’ has been subjected to a detailed analysis by Mr Justice Stanley Burnton in Wright v Secretary of State and that he has stated that he does not think that the provisions of the Act in relation to provisional listing are compatible with Article 6 or are fair. He said : “It seems to me … that the prohibition on applications to the Tribunal for the period of 9 months is an unjustified interference with the care worker’s right of access to the courts.””
18. However, if leave is granted under s86(2), the Tribunal has the duty to decide whether the Appellant’s name should be confirmed on the list. Its powers are as set out under s86(3), and in my view, the Tribunal is not simply a substitute for the Secretary of State. I accept Mr Carpenter’s submission that there may be cases where the postponement by the Secretary of State of making a confirmation under s87(7) so as to enable the Tribunal to conduct a wider investigation under s86(2), could be conceived as an abuse.  If that were to happen, no doubt the Tribunal would make a Direction under Regulation 14.  But subject to that, I see no reason why the investigation of misconduct under s86(2) should be limited to a s82(7) exercise.  If Parliament had wanted this to be the case, it would have said so.
19. Mr Carpenter draws my attention also to s82(3) that states that a reference can be made to the Secretary of State by a provider, if subsequent discovery of material would itself have justified a reference.  It is suggested that a new reference could be made, followed by another listing and another potential appeal.  This is not an attractive argument.  I cannot fail but be disturbed by the fact that such a procedure would add to delay, add to cost, and indeed, create increased uncertainly and worry for an Appellant.  Mr Moffett talks about a ‘ping pong’ effect, and I agree with him that if Mr Carpenter’s argument on s82(3) were to prevail, would seriously undermine the purposes of the Act, namely to protect “a vulnerable section of the public.”
Allegations implicitly rejected by the Secretary of State
58.	Mr. Carpenter made a further point; that on the present facts the tribunal cannot consider the allegations other than (b) because the Secretary of State implicitly rejected them when she confirmed the provisional listing.  BUPA had submitted the all the documents relating to them.  She did not then rely on them.  It is tantamount to an abuse now to seek to do so.
59.	Mr. Moffett responded that the Secretary of State’s role was limited when deciding whether to confirm the appellant’s listing.  She was entitled only to refer to the most serious allegation.  She was not required to set matters out as though in pleadings.  
My conclusion
60.	First, the purpose of this legislation is clear.  It is to protect vulnerable people.  To limit the tribunal in the way Mr. Carpenter submitted would seriously undermine that purpose.  It would mean that the reference from the provider would thereafter wholly define what follows.  If the provider failed to refer other serious misconduct, the tribunal could not consider it.  If other serious misconduct came to light shortly before an appeal (for example, serious misconduct resulting in criminal convictions), it could not be considered in the appeal.  That the purpose of the Act would seriously be undermined does not of course necessarily mean that Mr. Carpenter is wrong.
61.	Second, the application of the legislation has very serious consequences for care workers.  Proceedings under it must be fair.
62.	Third, the wording of section 86(3) is clear and on its face unequivocal.  Misconduct is not said to be limited or qualified in any way.  That is so when considering an appeal under section 86(1) or a determination under section 86(2).  Enabling the tribunal to consider any misconduct well serves the purpose of the legislation.
63.	Fourth, it seems to me, as Mr. Moffett submitted, the statutory scheme envisages three main stages: the reference by the provider over which the Secretary of State has no control; second, the Secretary of State’s review of that reference and third, any possible appeal against the listing.     
64.	Fifth, as a matter of common sense, and as the President said, it may only be when an appeal is prepared that evidence of other misconduct comes to light.  The desirability of that evidence being considered by the tribunal and at one hearing is self evident.   
65.	Sixth, it is necessary to have regard to the true nature of the appeal proceedings under section 86(3) when deciding the allegations of misconduct it may hear.  The care worker is appealing the fact she has been listed.  The tribunal has to decide whether she has so conducted herself as to justify being listed.  Its role is different from that of the provider and then the Secretary of State in reviewing the information sent by the provider.  For the first time, the facts said to justify listing are fully ventilated.  Evidence is called and witnesses cross-examined.  The tribunal has a wide discretion in its conduct of the proceedings before it.  By the Regulations it may exclude evidence.  In its conduct of the proceedings it has moreover an overriding duty to act fairly.  I have no doubt it can control the proceedings so that allegations of misconduct cannot unfairly be raised.  
66.	Seventh, and in short, having regard to the clear wording of section 86(3), the purpose and scheme of this legislation, the true nature of an appeal and the duty and ability of the tribunal to act fairly, I see no reason to limit the ambit of section 86(3) in the way Mr. Carpenter submitted.  
67.	Eighth, it does not seem to me there is the sort of ambiguity in section 86(3) which permits consideration of the Parliamentary material.  Moreover, if I am wrong about that, what was said by Ms Shipley is not itself without ambiguity.  It is unlikely she was considering such issues as have been raised in this appeal when she made the comments she did.
68.	Ninth, it follows from what I have said that I do not accept the scheme is predicated on the employer or provider when it comes to an appeal.
69.	Tenth, and again it follows from what I have said, it does seem to me that the tribunal in exercising its jurisdiction under section 86(2) is performing a different function to that performed by the Secretary of State under section 82(7).  That follows from the wording of the Act.  Provided when performing its function the tribunal acts fairly, it is in my view entitled to consider allegations of misconduct not considered by the Secretary of State.
70.	Finally, I do not accept on the present facts that the Secretary of State implicitly rejected the areas of misconduct other than falling asleep.  Her role then was, as Mr. Moffett submitted, limited.
71.	In short, I agree with the President.  This appeal is dismissed.