Human rights - Social welfare - Child protection - Disclosure

(1) H (2) L v A City Council: CA (Civ Div) (Lord Justices Pill, Hooper, Munby): 14 April 2011

The appellants (H and L) appealed against the decision ([2010] EWHC 466 (Admin)) that the respondent local authority’s past or possible future disclosure of H’s conviction for indecent assault of a child to organisations in which he was involved was lawful.

The local authority cross-appealed against the decision that its imposition of a certain regime in respect of the management and payment of H and L’s care assistants was unlawful.

H and L, who were married, were both severely disabled and received weekly direct payments which they used to fund care assistants in their home.

The local authority became aware that H faced trial for another child sex offence, that he had a further previous conviction for failing to disclose his indecent assault conviction when applying for a job, that he was active in organisations and committees concerned with disabled people, and that he and L ran their own company which sought and obtained contracts from public bodies.

Having determined, following a meeting which H had been neither notified of nor invited to, that he posed a risk to children, the local authority informed nine organisations connected to H about his indecent assault conviction and potential for future convictions.

It notified H and L that it would decide on a case-by-case basis what disclosures it would make to any organisations that H and L became involved with in the future, and that it intended to enforce a regime whereby H and L’s care assistants should sign letters that set out its view that they should not take their children to work or allow H and L unsupervised contact with children outside of work, and that payment of care assistants would be through a managed account operated by a third party.

H was acquitted of the alleged sexual assault. He and L issued judicial review proceedings complaining that:

(i) the local authority’s disclosure of H’s previous conviction and its approach to future disclosures were unlawful, being in breach of their rights both at common law and under article 8 of the European Convention on Human Rights 1950;

(ii) the regime which the local authority proposed to enforce in relation to H and L’s care assistants was similarly unlawful, as was the imposition of a managed account, not merely for the same reason but in any event as being ultra vires the local authority’s powers under the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009.

The judge found for the local authority on the first issue, and for H and L on the second.

Held: (1) Neither the local authority nor the judge had engaged with the critically important fact that H and L did not work with children.

The local authority had adopted a blanket approach, its stance being that H should stand down from all the bodies and committees he was involved with and that it would make disclosure to all H’s known contacts and, indeed, to any further contacts of which it became aware.

That approach was neither fair nor balanced nor proportionate.

That part of the judge’s decision had to be set aside and H and L were therefore entitled, in principle, to a quashing order and appropriate declaratory relief.

The local authority’s disclosure decision should, however, be quashed in any event for procedural irregularity since it had been made behind H’s back.

H and L had been given no opportunity to make representations: they were simply presented with a fait accompli.

The process by which they were condemned, unheard, was unfair and fell far short of what was required both by the common law and by article 8.

Those serious shortcomings vitiated the entire process.

Neither was the local authority’s proposed procedure as to future disclosure adequate: if the process met the requirements of procedural fairness demanded both by the common law and by article 8, the local authority had to consult with H (and L) and give them a proper opportunity to make their objections to what was proposed, after the local authority had decided what disclosure to make, and to whom, and before it did so (see paragraphs 60-62, 69 of judgment).

(2) Both H and L had incorporated into the written particulars of their care assistants’ terms and conditions of employment a provision that it was not appropriate for them to bring anyone else to work with them since the insurance in place covered only staff employed by them.

Each of H and L’s care assistants had signed a declaration that they had read and accepted those terms and conditions.

In those circumstances, the judge had been entitled to find that the local authority’s regime requiring further declarations by H and L’s employees was unlawful.

Since the proposal to pay care assistants through a managed account was parasitic upon the proposal to make disclosure to such persons, it too fell away on common law and convention grounds and the judge’s conclusion on the second issue would stand.

In any event, the local authority simply had no power to do what it was proposing in respect of payments through a managed account under the regulations (paragraphs 71, 76, 84).

Appeal allowed, cross-appeal dismissed.

Stephen Cragg (instructed by Howells) for the appellants; Timothy Pitt-Payne QC (instructed by in-house solicitor) for the respondent.