Secretary of State for Children, Schools and Families v JN

On an appeal against a direction barring a person from work with children, fairness ordinarily requires disclosure of the evidence relied upon, but not confidential advice or evaluative views provided to the decision-maker. Such advice is part of the consultative decision-making process rather than evidence. Disclosure may nevertheless be required in exceptional circumstances, particularly if fairness requires disclosure of a new point on which the affected person had no opportunity to make representations.

Where the statutory appeal permits the tribunal to decide whether the direction was appropriate or proportionate, the tribunal must form its own view on the evidence that was before the decision-maker. It need not see confidential advice in order to conduct that review fairly.

The Secretary of State directed that Mr N should be barred from employment involving work with children under section 142 of the Education Act 2002. Mr N appealed to the relevant tribunal. The tribunal ordered disclosure of confidential advice given by Sir Roger Singleton, who advised the Secretary of State as part of an expert panel overseeing the barring process.

The Secretary of State appealed against that disclosure order. The central issues were whether fairness required disclosure of the advice and whether the tribunal needed it to determine the statutory appeal.

1. Appeal allowed. The tribunal’s order requiring disclosure of Sir Roger Singleton’s advice was set aside.
2. The court distinguished between evidence gathered during the barring process and advice or views expressed in response to that evidence. Sir Roger’s advice was an appraisal of the evidence, not evidence itself. His role was comparable to that of departmental officials and formed part of the Secretary of State’s consultative decision-making process.
3. Fairness ordinarily does not require disclosure of confidential departmental or advisory opinions. The public interest supports an environment in which ministers and advisers can exchange frank and candid views. Disclosure may exceptionally be required where the decision-maker relies on a new point on which the affected person had no opportunity to make representations. The reasoning in R v Secretary of State for Education ex parte S [1995] ELR 71 was applied.
4. Under regulation 13(2) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003, the tribunal could not consider information unavailable to the Secretary of State when the direction was made, or evidence of a subsequent material change of circumstances. Its task was therefore to form its own view, on the same evidence, as to whether sufficient grounds existed for the direction and whether the decision was reasonable and proportionate.
5. The tribunal did not need the confidential advice to perform that task. The decision letter identified the factors relied upon, and Mr N had the evidence necessary to present his appeal effectively. The court accepted the tribunal’s description of its reviewing function in FH v Secretary of State for Education and Skills [2005] 0552.PT.

• Protection of Children and Vulnerable Adults and Care Standards Tribunal: ordered disclosure of Sir Roger Singleton’s advice under regulation 12(1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002.
• High Court (Administrative Court): allowed the Secretary of State’s appeal and held that disclosure was not required.