Wheeler v Secretary of State [2008] EWCST 1229 (PT) (18 April 2008)

Dean James Wheeler
-v-
Secretary of State
[2008] 1229.PT

APPLICATION BY RESPONDENT TO STRIKE OUT THE APPEAL

DECISION

-before-

His Honour Judge David Pearl
(President)

1.	The Appellant appealed on Appeal Application Form A, received by the Tribunal on 21st January 2008, the decision of the Secretary of State dated 9th June 2006 to bar him on the grounds of unsuitability to work with children, from employment to which Education Act 2002 section 142 applies.
2.	By letter dated 8th February 2008 received by the Tribunal on 11th February 2008, the Respondent applied under Regulation 4A(1)(i) for the Appellant’s appeal to be struck out by the Tribunal on the grounds that it was not made within the three month deadline stipulated in Schedule 4 paragraph 1(2) of the Regulations, and that there is no ground for extending the time limit under Regulation 35.
3.	In accordance with Regulation 4(2), I invited the Appellant to make representations on this matter in Response to the application to strike out. In accordance with Regulation 4(2)(b), the parties must be afforded the opportunity to make oral representations. Accordingly, the Appellant was  directed to inform the Tribunal whether he wished to make oral representations in response to the Strike Out application.
4.	The Appellant informed the Tribunal that he did indeed wish to make oral representations, and I accordingly considered the Strike Out application at an oral hearing on 9th April 2008. Ms K Olley of Counsel instructed by Ms F Debenham for the Treasury Solicitor appeared on behalf of the Secretary of State, and the Appellant represented himself.
5.	The Appellant, at the oral hearing, made clear that he was aware that he needed to appeal within the three month period, and that he did not appeal at that time because “the Secretary of State stated that he wanted me to go away from teaching and do some work with a professional to get some therapy/ counselling.” He said that he had now done that and that he had been away from teaching for some two years, and that he was half way through his therapy course.
6.	It would appear that Mr Wheeler wrote to the Children’s Safeguarding Operations Unit on 8th November 2007 seeking advice “of who and where I need to contact in order to make a review of my case.”   He received a reply dated 17th January 2008 informing him that he could seek a revocation of the order on grounds of new information relevant to the decision to give the earlier Direction which he did not have at the time the decision was made. He was also told that he could seek a review of his disqualification on the grounds of a material change in his circumstances, but that he must wait 10 years from the date of the Direction, and that the review would be conducted by the Care Standards Tribunal. He was told also that he could appeal the original decision to the Tribunal, but that an appeal must normally be made within three months of the date of the Direction, and that he should contact the Tribunal so as to see whether “they would accept your appeal application.”
7.	On the facts of this case, the Strike Out application must succeed under Regulation 4A(1)(a). There are no grounds for extending the three month period under Regulation 35, and indeed the Appellant did not suggest otherwise. 
8.	Regulation 9 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 enables applications to be made to the Secretary of State for a review of the Direction made under section 142 of the 2002 Act, but not where a Direction has been made on the grounds that a person is unsuitable to work with children and the person claims that he is no longer unsuitable to work with children (Regulation 9(1)(b)). This is the situation here; and therefore the letter dated 17th January 2008, which suggests the Secretary of State would review the direction on the grounds of new information relevant to the earlier Direction which the Secretary of State did not have at the time, would appear to be providing incorrect advice, unless the Secretary of State applies an extra-statutory concession.
9.	In any event, this is not a case where the Appellant is saying that he now has information that the Secretary of State did not have at the time the Direction was made. He is saying that he has attended therapy and counselling and in consequence he is no longer unsuitable to work with children.
10.	The Tribunal has repeatedly said that Parliament has laid down that an Appellant must wait ten years prior to seeking leave to seek a review from the Tribunal  (Regulation 11(4)) for a good and valid policy reason. (Bromfield-Rabley v Secretary of State [2004] 324.PC; Marlow v Secretary of State [2004] 423.PC). Although these are PoCA cases, the same principle applies in section 142 Direction cases. This is an area of child protection, and it is essential that the community has the confidence to trust its children into the care of teachers who are above reproach. If a person is subject to a Direction under section 142, he can appeal to the Tribunal within three months. If he misses this very generous deadline, and, absent the most exceptional circumstances where the deadline can be extended by the Tribunal under Regulation 35, then the change of circumstances can be tested by the Tribunal only after a period of ten years. 
11.	The Legislation and the Regulations made under it represent a balance between the importance of safeguarding the protection of children and the need to ensure that the rights of individuals to work in their chosen profession (in this case teaching) are given recognition. In this case, if Mr Wheeler felt aggrieved by the Direction he could have appealed to the Tribunal within the three month period. He chose not to do so, and he must therefore await the ten year period to enable the Tribunal to test whether, on a review, he should continue to be subject to the Direction. The ten years is Parliament’s approach to the appropriate balance, and this Tribunal has no discretion to vary it.
12.	Accordingly, the application to strike out this appeal is granted. The parties were told of the Decision after the hearing, and provided with brief reasons. These reasons are now set out in this written Order.
13.	In accordance with Regulation 4A(4), where the President strikes out an appeal, the Appellant may apply for that determination to be set aside. Such an application must be made not later than ten working days after the date on which notice of the determination is sent to the Appellant, be in writing and stating the grounds in full.
14.	As there has been an oral hearing in this case, it is my view that Regulation 4A(4) has been satisfied. However, were the Appellant to apply to have the determination set aside, the matter would be dealt with by a nominated Chairman.

ORDER ACCORDINGLY.

APPEAL STRUCK OUT IN ACCORDANCE WITH REG 4A(1)(a)(i).

His Honour Judge David Pearl
President
18th April 2008.