Barring decisions and legitimate expectations

December 30th, 2011

The Claimant in R (on the application of W) v Secretary of State for Education [2011] EWHC 3256 (Admin) was a teacher who challenged the Secretary of State’s decision to bar him from working with children. The Claimant challenged that decision on grounds that it was an abuse of power because it was taken in breach of a substantive legitimate expectation and/or that it breached his rights under the Human Rights Act 1998 (HRA) to a fair hearing (article 6) and to respect for private life (article 8).

The factual background to the decision was as follows. The Claimant was investigated by the Department between 2003 and 2005. The outcome of that investigation was a letter dated 15 April 2005 which (the Claimant submitted) made it clear that no further action would be taken against him in the absence of further misconduct coming to the Department’s attention. It was common ground between the parties that there was no evidence or allegation of any misconduct since that time. On 16 January 2009 the Department wrote to the Claimant informing him that his case was being reconsidered as part of the Historical Cases Review and inviting him to make representations. The Claimant made representations and agreed, as he was out of the country, to his case being decided on the papers. The Secretary of State decided on 6 October 2009 to use his power under section 142 of the Education Act 2002 to bar the Claimant from working with children. The Claimant was informed of his right to appeal to an independent tribunal under section 9 of the Protection of Children Act 1999. The Claimant did not appeal, but instead challenged the decision on public law grounds by way of judicial review.

The Claimant’s claim based on his substantive legitimate expectation failed. Mr Justice Singh gave a useful summary of the key authorities on legitimate expectations (paragraphs 37 to 50 of the judgment). He concluded that the Claimant did have a substantative legitimate expectation, based on the letter of 15 April 2005, that he would not have further action taken against him unless further misconduct came to the Department’s attention: the letter contained a representation to that effect which was clear, unambiguous and devoid of relevant qualification. However, the Secretary of State had satisfied the burden of proving that there was an overriding reason in the public interest which entitled him to change his mind. The test was whether the Secretary of State had a legitimate aim and had acted proportionately. The legitimate aim was of course the manifest and pressing public interest in protecting children, in particular from the risk of sexual abuse. As for proportionality, Mr Justice Singh found that the decision in question was the Secretary of State’s decision to reconsider the Claimant’s case (rather than the Secretary of State’s subsequent decision to bar the Claimant from working with children). He concluded that that decision to reconsider was proportionate, given that:

  • the Secretary of State had only reconsidered cases where it was thought that there might be a current risk to children;
  • the Secretary of State had sought to devise fair procedures which would be followed before a barring order was imposed. This included  the right to make representations, the involvement of an expert panel chaired by an eminent and respected person from outside the department, the advice of the Lucy Faithfull Foundation which had expertise and experience in the field and the opportunity to have a face to face assessment; and
  • there was a right of appeal to an independent judicial body against any subsequent decision to bar an individual from working with children.

Mr Justice Singh commented that in any event he would have dismissed the claim because the right to appeal to a tribunal against the barring decision was an adequate alternative remedy.

Turning to the human rights arguments, Mr Justice Singh briefly considered whether the Court had jurisdiction to consider the claim, given that the Claimant was now resident in Hong Kong. He did not hear full argument on this point but concluded that it seemed that the Secretary of State had exercised jurisdiction over the Claimant by making the barring order (even though the Claimant was then outside the UK) and therefore the Court could consider the HRA claim. However, the article 6 claim failed because that article was concerned with procedural fairness whereas the Claimant’s real complaint was about the substantive decision to bar him from working with children. The Secretary of State accepted that the decision to bar the Claimant interfered with his right to respect for his private life under article 8 but submitted that it was justified and therefore lawful. Mr Justice Singh agreed.

Rachel Kamm

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