SP v Secretary of State [2006] EWCST 725(PVA) (21 December 2006) 
 SP
-v-
Secretary of State 
[2006] 725 PVA
[2006] 726 PC] 

Before:

Mr. Stewart Hunter (Chairman)
Ms. H. Reid
Ms. E. Fowler

sitting at the Cardiff County Court on the 20th and 21st November, 2006.

Attendance

Mr. S.P represented himself. 

Ms. L Bush of Counsel instructed by the Treasury Solicitors, appeared for the Secretary of State.

Decision

Unanimous decision.  Appeals dismissed.

Appeal

1.	This is an appeal by  S.P. under Section 86 (1) of the Care Standards Act 2000 against his inclusion on the list kept by the Secretary of State under Section 81 of the Care Standards Act 2000 of individuals who are considered unsuitable to work with vulnerable adults (“POVA”) list.  There is a simultaneous appeal, pursuant to Section 4 (3) of the Protection of Children Act 1999 (“POCA”) against a decision to include  SP on the list maintained by the Secretary of State under Section 1 of POCA, being individuals who are considered unsuitable to work with children.

Preliminary Issues

2.	On the 11th September, 2006, the President of the Tribunal made a Restrictive Reporting Order under Regulation 18 (1) of the Protection of Children and Vulnerable Adults under Care Standards Tribunal Regulations 2002 (“the Regulations”).  That Order was to continue in force until the conclusion of the hearing.  At the Tribunal hearing the Tribunal concluded that the Restrictive Reporting Order should remain in force. Accordingly an Order was made which prohibits the publication (including by electronic means) in a written publication available to the public, or at the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify the appellant or any vulnerable adult.

Facts

3.	Perthyn is a company limited by guarantee operating as a domiciliary care agency. They support vulnerable adults in a number of properties throughout South Wales.  The scheme relevant to this appeal will be referred to as the AB scheme.  

4.	The Tribunal were told that there were three residents at AB, two men and one woman. Both male residents were said to have minimal speech.  One of the male residents, TL, communicated by using Makaton signing. In addition to communication problems, he also had mobility difficulties following a hip operation.  TL was also said to be a bubbly person, but someone who could display challenging behaviour which could involve hitting and kicking out as well as spitting.  

5.         CD, the manager at AB, informed the Tribunal that there were nine members of staff at the scheme altogether.  There was normally two staff on in the morning and three in the afternoon. At night, there was one sleep-in member of staff.  

6.	In or about March 2004, SP applied for employment with Perthyn as a domiciliary support worker.  In his application form he indicated that he was employed as a support worker with another organisation.  In that role his responsibilities included “supporting individuals with learning behavioural issues to lead an independent life”.  He had previously been employed by the Ministry of Defence as an Aircraft Technician from May 1992 until December 2002.  SP’s application was successful and he was employed as a domiciliary support worker at  AB from the 3rd May 2004.  

7.	An allegation was made that  S.P. assaulted one of the residents namely  TL on the 17th March 2005.  As a result of the allegation, an investigation was carried out by Perthyn and their investigating officer, Mr. D.H. reported on the 23rd April 2005 that in his view there was a case for SP to answer.   DH’s investigation had included an interview with SP on the 11th April 2005.  The allegation of assault was put to SP as follows:-

“The allegation is that on the morning of Thursday 17th March 2005 you were attempting to shower a tenant,  TL, at the YR development and it is alleged that you slapped  T.L. across his face twice.”

During the course of the interview, SP gave his version of the events of the 17th March.  He indicated that he had been working with another employee, Ms. D.M. and that they were taking  T.L. to have a shower.  He went on:-

“Once we had taken his dressing gown and pyjamas off and taken him towards the shower, he was still striking out at us.  He spat at me, he caught me on the side of the face, we took him into the shower, D was standing – while I was showering T – half in the shower with him to ensure that he didn’t fall or try and sit down or whatever crossed his mind at the time, D was standing behind me to my left passing me the wipes, they come in a packet Paybe, Paybay, whatever so I showered T’s back, as I turned him round to face me so that I could deal with his front, he spat at me again – full face straight into the middle of face – so I pushed his head to the side, bearing in mind that I had a handful of wipes, pushed his head to the side, a little bit heavier than I should have done, which I regretted as soon as I had did it.  I immediately turned to D and apologised.  This was something that she should not have seen. Basically I was apologising because I had lost it.”

At the end of the interview in response to a question from  DH,  SP stated as follows:-

“I can’t add any more to it, I am not happy with myself my behaviour, I shouldn’t have let my phobia get to me as it did.  I was slightly tired, T was spitting at me and I told him not to, I possibly couldn’t do anything about it.  When he spat at me then the second time I had to protect myself from being spat at again, basically it went downhill from there.  Really that is about it.”

8.	 SP was dismissed from his employment with Perthyn as a support worker on the 28th June 2005.  He appealed against his dismissal and a hearing of his appeal took place on the 27th July 2005.  The grounds of SP’s appeal were “inappropriate harsh decision, extenuating circumstances and unfairness of decision.”  The appeal panel found that the original decision to dismiss S.P. was correct and the reasons that they gave were as follows:-

“On the balance of probabilities you did strike the service user.  Under paragraph 11 of the Disciplinary Procedure, violent behaviour including assault or physical provocation or threat is regarded as an offence that constitutes gross misconduct.  An employee who commits an act of gross misconduct can expect to be summarily dismissed.  The panel did not consider the evidence provided in mitigation of your action was sufficiently compelling to reduce the original punishment of dismissal, imposed by the Disciplinary Panel.  The Appeal Panel could not uphold your appeal that the punishment was inappropriately harsh.”  

9.	The matter was reported to the South Wales police and  SP was interviewed by the police on the 29th April 2005, under caution.  During the course of the interview. SP stated as follows:-

“ …………… I done T’s back, as I turned round I was a matter of less than two feet away and he spat and caught me straight in the face.  That was the second time I’d had full blown spit in the face.  I moved T’s head to the side, I probably did it a little harder than what I should have.”

And later in the same interview he also stated:-

“Once I had pushed T because it was the only way I can describe it, I realised that I shouldn’t have done it so I turned to D because she shouted something at me, she shouted to me.  I apologised to her because really I shouldn’t have done it.  I apologised more for my behaviour as opposed to what I had done to T.  As I turned round I was still half in half out of the shower and very close to T and I can see his bottom lip coming up.  I thought he was going to spit at me again.  So I raised my hand to put in front of T’s face, bearing in mind that I still had the wipes, but because I was so close to him I misjudged the distance and caught him on the forehead pushing his head backwards.”

10.	On the 11th August 2005, SP was convicted of common assault in relation to the incident involving T.L. at AB on the 17th March 2005, for which he. received a 60 hour Community Punishment Order, and was ordered to pay £50.00 compensation and £70.00 costs to the Crown Prosecution Service. 

11.	On the 25th January 2006,  SP wrote to the Secretary of State in response to his provisional listing on the Protection of Vulnerable Adults list. Included in his letter was the following statement:-

“During the showering procedure including the undressing of  T.L. he assaulted me by spitting, slapping and kicking me.  I asked him to stop but he refused.  During one such attack, I pushed his head to one side to prevent him from spitting into my face I believed that I acted correctly as during Person Behaviour Management training a pushing technique is used to deflect a front punch.  I am right handed and was holding hygienic wipes so I would not be able to “slap” T.L. as D.M. claims.

12.	In his appeal application to this Tribunal,  SP stated that he had been assaulted by male resident TL and that he had “been informed since the action taken by me to defend myself was correct (moving the assailant’s head to one side).”  He went on to state:-

“reasonable force was used in defending myself, the job description did not indicate that I may expect to be assaulted whilst at work.  The resident was not harmed in any way nor was he placed at risk from harm.”

13.   At the Tribunal hearing SP went through the events of the 17th March 2005 and in particular the showering of TL  He stated that even though TL was agitated he understood his instructions to be that TL had to have a shower because according to SP he had soiled himself.  Whilst TL was being showered, he had spat at SP which SP had not expected. From that point on, the situation deteriorated.  SP said that he felt he could not leave TL in the shower as that could have placed him at risk.  SP considered that he had done the wrong thing for the right reasons.  That he had been trying to defend himself from an assault.  In hindsight he considered that he probably should have walked away from the situation.  

14.	The Tribunal also heard from SP’s co-worker at the time of the incident on the 17th March 2005 namely Ms. DM, who had also given a witness statement to the police on the 13th April, 2005.  DM said that she had been a support worker for twenty years, had joined Perthyn in 2001 and had been at AB since 2005.  Although she had not worked on many occasions with SP, she had become aware that there seemed to be some sort of friction between SP and one of the residents,  TL.

On the 17th March, 2005 she was on duty at AB with SP. She was aware that SP was having difficulties with TL who was refusing to shower.  She described TL as being in an agitated state at the time and was hitting out with his hands mainly towards SP’s upper body, but with insufficient force to cause him any injury.  She assisted SP with TL as he showered.  Whilst in the shower, TL started spitting and spat directly into SP’s face.  DM said that SP then smacked him.  DM offered to take over from SP but he refused and said that he would carry on.  Later in the morning, when DM had been with SP in the kitchen area, she had said to SP that she “wasn’t happy with what happened in the shower room”.  She stated that SP had replied with words to the effect “Yes I know.  I lost it.”

15.      The Tribunal heard from Ms. SS, the Area Manager for the Southwest Region of Perthyn which included AB.  She stated that training was available for staff which included six mandatory courses, one of which was Positive Behaviour Management, both theory and practical.  In the case of AB there would be half a days training on theory and half a day training on practical.  In SS.’s view there was nothing that could be done by staff in circumstances where they were spat at by residents.  The advice would be to move away and to get out of range.  The training that was arranged would be based on the needs of each particular scheme.

16.       CD, the Support Manager at AB, told the Tribunal that SP had had his Positive Behaviour Management training within the first two months of his employment with Perthyn.  The trainers would have received information from AB in relation to issues that had arisen at AB. CD was unable to say whether the training would have included anything on how to deal with being spat at. The Tribunal were told that the staff at AB had not received training in Makaton signing. 

SP said that he had received no formal induction training when he started at the AB scheme.  He had initially been told to shadow existing members of staff and to read up on the Care Plans of the individual residents.  It was in early June, 2004 that he had attended the Positive Behavioural Management (practical) training, but that had not dealt with how to deal with residents who spat.  SP acknowledged that he had not asked specifically for training in being spat at. SP said he had not received the theoretical training.

TL had spat at him on an earlier occasion prior to the 17th March 2005 and SP said that when he had raised this with CD he had received a negative response and when he had mentioned the incident to other members of staff at AB, no advice had been offered to him as to how he should deal with the situation.

17.	 CD said that a diary of supervision was kept for each member of staff to record meetings between himself and that member of staff, when issues such as personal problems, training etc were discussed. CD acknowledged that there had been discussions prior to Christmas 2004 regarding SP moving to another establishment, but the only place that had been open to SP had residents who displayed more challenging behaviour than at AB. CD said that he. thought that this had been rejected by SP, and in any event by January 2005 SP had seemed happier.  

18.	 CD told the Tribunal that there was no waking night staff at AB, although there had been in the past, instead staff were rostered to sleep in at AB.  There was a sleeping room for staff upstairs at AB, but some staff, including CD himself, preferred to sleep downstairs.  CD said that sometimes a resident got up in the night to go to the bathroom and it was easier to respond if you were downstairs.  

SP gave evidence that he had had a conversation with CD and had been told by  CD that he preferred staff to sleep downstairs. This was not a conversation that  CD recalled.  

19.         SP told the Tribunal, that in relation to the incident on the 17th March 2005 his shift had started on Wednesday 16th March at 12.30pm and finished at 10.30pm the same day.  He had then been on a sleeping shift overnight, his shift the following morning started at 7.30am and finished at 12.30pm.  He had been woken at 3.00am on the 17th March, because a male resident was going to the toilet.  SP had got up and checked to see he was alright which he was and then SP who was sleeping downstairs, had gone back to sleep on the settee.  SP said he was woken again at around 6.00am by T.L. who required changing.  SP had then put TL back to bed, but about 10 to 15 minutes later, TL was out of his room again and moving around.  As a result of these disturbances ,SP said he had had a very disturbed night’s sleep.  

Ms. DM told the Tribunal that if she had had a really bad sleep on a sleep-in, then as soon as the support worker came in the following morning, which would be about 7.30am, she would inform them and telephone her manager to see if she could go home.  SP accepted that he had not contacted any of the managers by telephone on the morning of the 17th March, 2005 to indicate that he was tired and wanted to go home early, nor had he raised it with DM

20        SP told the Tribunal that he had previously been working at an RAF Careers Information Office in Cardiff and there had been an occasion when the windows of the office had been smashed.  He had been surrounded by a group of youths who had spat at him, he had not been spat at before and he found the whole situation abhorrent, he had concerns about being spat at thereafter.  He had not informed anyone about this particular problem at AB.  After he had first been spat at by TL he had raised an incident report and discussed the situation with CD but SP said nothing was done about it.  

21.	 SP said that he had been unhappy at the AB scheme and had raised it in supervision meetings with CD.  He had said that he was not happy with the amount of personal care work, but it had not been until March 2005 that he had been offered a secondment to another scheme.  If he were to work with vulnerable adults in the future, before taking up a post SP said he would ask questions about the behaviour of those vulnerable adults.  SP told the Tribunal that he had not received any additional training since being dismissed from Perthyn, nor had he received any counselling in relation to any of the issues that had arisen.  He had had work since his dismissal from Perthyn in crowd control and had coped in positions of stress.  If he were to be spat at in the future his response would be to move away.  

Tribunal’s Conclusions

The Law

22.	Section 86 (1) of the Care Standards Act 2000 (“the Act”) states as follows:-

“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:-

(a)	the decision to include him on the list; …………………..”

Section 86 (3) states that:-

“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 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.”

Section 86 (4) of the Act states as follows:-

“where an individual has been convicted of an offence involving misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult, no finding of fact on which the conviction must be taken to have been based shall be challenged on appeal or determination under this section.”

Conclusions

23.	As indicated in Section 86(3) as set out above, the reaching of a decision in this case is a two part process.  Firstly, we need to consider whether or not  SP was guilty of misconduct which harmed or placed at risk of harm, a vulnerable adult.  In this case SP. was convicted of a common assault on Mr. TL, a vulnerable adult on the 11th August 2005.  Although SP disagrees with the facts on which he was convicted, Section 86 (4) of the Act does not allow him within these proceedings to challenge the finding of facts which lead to his conviction.  We were therefore satisfied that the first part of Section 86 (3) is satisfied, namely that SP was guilty of misconduct which harmed or placed at risk of harm a vulnerable adult.

24.	SP contended that there were mitigating circumstances relating to his misconduct which should be taken into account and secondly, that there was no real risk that he was likely to repeat that type of behaviour.  In essence, SP put forward three factors in mitigation, namely that on the night prior to the incident with TL on the 17th March 2005 he had an interrupted sleep, secondly that he had received from Perthyn inadequate training, particularly in relation to the issue of spitting and in addition he had received poor supervision, thirdly that he had a phobia in relation to being spat at.  We propose to look at each of those factors individually.

25.	The Tribunal were told that AB did not have any waking night staff, but that a member of staff was required to sleep on the premises overnight. SP told the Tribunal that it was a requirement that staff slept downstairs on the settee when they were there overnight, notwithstanding that there was staff accommodation upstairs.  CD said that when he was staying at AB he slept downstairs on the settee, but that was a matter of personal choice and that staff were not instructed to sleep downstairs.  DM gave evidence that when she was sleeping in, sometimes she slept upstairs and sometimes she slept downstairs.  DM’s evidence, in our view, supports what we were told by CD that there was no requirement for staff to sleep on the settee, but they could if they wished.

It does however, appear to be the case from the evidence from CD and SP that staff sleeping downstairs were often woken by the movements of residents and could be called upon to assist them.  CD gave evidence that in the past there had been waking night staff at AB and that in an ideal world, given the needs of the present residents, waking night staff should still be used.  The present shift patterns were such that a member of staff could start work at 12.30pm on one day, finish their day shift at 10.30pm, sleep in at AB and then be required to start a new day shift at 7.30 the following morning.  In circumstances where sleeping can often be disturbed that does seem to us to have the propensity to put an undue amount of stress on staff.  In the case of S.P. he had started work at 12.30pm on the 16th March and had been on sleeping duty over the night of the 16th and 17th March and we accept his evidence that he had been woken in the early hours of the morning by one of the residents going to the toilet and again at about 6.00am when T.L. required washing and cleaning.  It is perhaps not surprising in those circumstances, that SP was tired when he began his morning shift on the 17th March at around 7.30am/8.00am.

Whilst employers undoubtedly have responsibilities to ensure their employees have appropriate rest periods and are fit to carry out their duties there is also, in our view, a responsibility on the individual employees to make their employers aware when for whatever reason they feel unable to carry out their duties. SP said that there were arrangements available whereby if a member of staff had had to work during the night, they could receive extra payment in certain circumstances and could telephone the office for extra cover to be made available in the morning so that they could go home early. DM said that if she had had a really bad night’s sleep on a sleep-in as soon as the support worker came in the following morning she would inform them and telephone the manager to be able to go home.  In this case on the 17th March SP had not raised his tiredness with DM nor did he raise with anyone else that he was tired or felt unfit to carry out his work.

It may well be that part of SP’s conduct in relation to his interaction with TL on the 17th March may have been as a result of over tiredness, however there were opportunities for him to have walked away from the situation with T.L. prior to the assault occurring.  We accept DM’s evidence and indeed found her throughout to be a very reliable witness.  She had offered to take over TL’s care that morning, but her offer had been refused by S.P.  Therefore, whilst the sleep in arrangements may have been far from ideal and have caused staff to become over tired, nevertheless in our view SP ought to have been responsible for his own conduct.

26.	In terms of training SP told the Tribunal that he had received training in working with vulnerable adults with challenging behaviour in his employment, prior to joining Perthyn.  He had also received Positive Behaviour Management training whilst at Perthyn, albeit after he had started working at AB as opposed to any initial induction, before he took on any duties.  The Tribunal were told by both CD and . S.S. that the training arranged by Perthyn in relation to Positive Behaviour Management, covered issues relating to residents at their particular establishment.  It is however, not clear and we were provided with no direct evidence that TL’s propensity to spit at staff was something that was actively discussed at Positive Behaviour Management. training sessions. SS said that there was nothing you could do in respect of spitting, except move away.  DM said that the only training for spitting was to step back, but if the behaviour occurred that she did not know how to deal with then she would go to her line manager and would expect the matter to be discussed in a team meeting.  CD said that he did not know if there had been any training on spitting. He said that he had been spat at on numerous occasions as part of his job. It is perhaps therefore somewhat surprising given that it appears to have been known by all staff working with TL, that he had a propensity to spit, that this was not something that formed part of any training organised by Perthyn even if the only available advice was that staff should walk away.

SP did give evidence that TL had spat at him on an occasion prior to the 17th March 2005, but notwithstanding that, he had not sought training to deal with such spitting from his employers.  He did say that he raised the matter with CD, but that he had received an unhelpful response. CD, in evidence, could not recall that conversation.  There is reference to T.L. spitting in the behaviour observation charts completed by staff at AB, but it does not appear to have been considered to be a significant issue to have been discussed at team meetings. Whilst we consider that this was an aspect of  T.L.’s behaviour that should have been part of staff training and awareness, the fact that S.P. may not have been given specific training on this issue, does not mean that he must have been unaware that it was an inappropriate response to TL’s spitting, to assault him.

In terms of supervision, we did have the benefit of hearing from CD and seeing extracts from SP’s diary of supervision, from which there would appear to have been ample opportunity for SP to raise with CD, issues of concern.  The lack of training in relation to the issue of spitting does not appear to have been raised.  If there is any criticism it is perhaps a failure on the part of Perthyn’s management to recognise and address at an early stage, problems that  SP. was raising in relation to the amount of personal care work that the job entailed.

27.	When SP gave evidence in relation to the original Disciplinary hearing, he referred to himself having “phobia” about being spat at.  At the Tribunal hearing he indicated that this had originated from an incident in earlier employment when he had been spat at whilst working in an RAF Careers Information Office in a very difficult situation.  Whilst it is undoubtedly true that being spat at is an unpleasant experience for anyone, in S.P.’s case it appears to have caused him a more significant problem at which he reacted in a violent way.  Once SP became aware that spitting could be an issue in his work at the AB scheme, which given the nature of the work he should perhaps have realised from the outset, it was in our view incumbent upon him to raise his particular phobia with management which he did not do.

28.	SP sought to assure the Tribunal that he would not respond in the same way as he had on the 17th March, if he were to be spat at in the future.  We have concerns about this submission for a number of reasons.  Firstly, we remain unconvinced that  SP fully recognises that his behaviour in assaulting TL on the 17th March was inappropriate.  He has sought to justify his action since the incident, on a number of occasions.  In his reasons for appeal to this Tribunal, SP set out that he had used reasonable force in defending himself and that TL was not harmed in any way, nor was he placed at risk of harm.  Whilst SP gave evidence that if a similar situation were to happen again he would walk away, he had the opportunity on the 17th March to walk away and hand over control to DM but did not do so.  It seems to us on the 17th March as he told  D.M. at the time, he had “lost it”.  On the basis of DM’s evidence, and indeed SP’s own evidence to this Tribunal, we accept that by the use of the expression “lost it”, SP clearly meant that he had lost control of himself.  In circumstances where he admits having a phobia about being spat at and given that he has received no counselling or treatment in respect of his phobia since the incident on the 17th March 2005, we have no confidence that if a similar situation were to arise again he would be able to control himself.  It is unrealistic to suppose that such a situation might not happen again, given the very vulnerable people that SP would be working with in this sector.  Therefore, whilst we take into account the mitigation put forward by SP, for the reasons already stated, we conclude that he is unsuitable to work with vulnerable adults.  

29    This appeal also relates to SP’s inclusion on the POCA list.  Whilst we accept his evidence that he is unlikely to be a risk to small children, we can envisage situations where if he were spat at by an adolescent child then there would be a risk that he would respond in a similar way to the way in which he responded to TL on the 17th March 2005 and therefore we consider that he is unsuitable to work with children and should remain on the POCA list.

Conclusion
30.  Our decision is unanimous.

APPEALS DISMISSED

Stewart Hunter (Chairman)
Ms H Reid
Ms E Fowler