Kuteh v Secretary of State for Education
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE LAWS
- LORD JUSTICE PATTEN
- LADY JUSTICE MACUR
Areas of Law
- Administrative Law
- Civil Procedure
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The case revolves around the appellant, a mental health nurse, appealing his inclusion on the Protection of Children and Protection of Vulnerable Adult lists. The First Tier Tribunal's initial dismissal was scrutinized for procedural fairness, especially the failure to consider key witness evidence. The Administrative Court identified these issues, prompting a quashing and remittance to the Upper Tribunal, which however, reaffirmed the dismissal. The Court of Appeal now finds that the Upper Tribunal should have adhered to the Administrative Court's findings and ordered a reconsideration on the identified procedural errors.
J U D G M E N T
LORD JUSTICE LAWS: This is an appeal with permission granted by Elias LJ on 12th February 2014 against a decision of the Upper Tribunal (Administrative Appeals Chamber) dated 16th July 2013 (see [2013] UKUT 339). By that decision the Upper Tribunal dismissed the appellant's appeal against an earlier determination of the First Tier Tribunal ("the FTT") made as long ago as 3rd March 2009.
The history of the case is complex and unusual. The appellant was a qualified mental health nurse. On 22nd November 2007 his name was placed on the Protection of Children and Protection of Vulnerable Adult lists. The placement was confirmed on 10th July 2008. As the Upper Tribunal was to observe, nothing turns on the statutory setting of the lists; it is enough to say they are a mechanism by which a person may be prohibited from working with children or in education or with vulnerable people if he is unsuitable by virtue of his conduct or on certain other grounds.
There were three reasons for the appellant's inclusion on the list of which, according to the appellant at least, the most serious was an allegation of assault on a patient referred to as "KG" during a riot at a secure unit. Of course, as Miss Blackmore for the Secretary of State has been at pains to insist, the issue is not strictly as to a criminal assault but as to the appellant's suitability to work with children or the vulnerable.
The appellant appealed against the listing. He claimed to have been acting in legitimate self-defence on the occasion of what I will call the assault.
On 3rd March 2009 the FTT dismissed his appeal. Permission to appeal to the Upper Tribunal was refused by the FTT and then by the Upper Tribunal, which also declined to set aside their refusal. These decisions on the applicant's application for permission to appeal against the FTT determination were made in 2009 and 2010.
However, in separate proceedings before a panel of the Conduct and Competence Committee of the Nursing and Midwifery Council it was found on 21st February 2011, following a hearing, that the allegation of assault was not well-founded. The appellant thereafter sought judicial review of the Upper Tribunal's refusal of permission to appeal to it against the FTT decision of 3rd March 2009. Judicial review permission was granted by Wilkie J on 8th July 2011, by which time the Supreme Court had delivered judgment in Cart , [2011] UKSC 28 , on the availability of judicial review against a refusal b