Secretary of State for Children, Schools & Families v Philliskirk

On an appeal from a Care Standards Tribunal decision concerning a prohibition direction, the Tribunal must exercise its own judgment on whether the direction was appropriate or proportionate. It must use only the material available to the Secretary of State when the decision was made. The review has two stages: whether there was sufficient evidence for the statutory ground, and whether the particular direction was an appropriate response. The direction is protective, not punitive. The Tribunal may consider risk of repetition and public confidence in the education system. A clarification given in oral evidence is not necessarily new information if it merely confirms material already before the Secretary of State. An appellate court will not interfere absent an error of law.

The Secretary of State appealed against the Care Standards Tribunal’s decision of 20 May 2008 allowing Kevin Philliskirk’s appeal against a direction placing him on List 99 under section 142 of the Education Act 2002. The direction followed sexual activity between Mr Philliskirk, a teacher, and a 16-year-old pupil. The Secretary of State relied principally on regulation 13(2)(a) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003, arguing that the Tribunal had considered information not available when the direction was made. He also argued that the Tribunal had failed to give proper weight to the distinction between misconduct and unsuitability. The central issues were the Tribunal’s proper statutory task and whether it had acted on impermissible new information.

1. Appeal dismissed. The Tribunal was entitled to allow the appeal and to conclude that no continuing direction was required.
2. The Tribunal’s task is a review, not a rehearing or a determination of primary facts. It must consider only the material before the Secretary of State when the decision was made, as required by regulation 13(2) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003.
3. The review has two stages. First, the Tribunal asks whether there was sufficient evidence to establish the statutory ground relied upon. Secondly, it exercises its own judgment on whether the particular direction was an appropriate or proportionate response in all the circumstances. It is not confined to deciding merely whether the Secretary of State’s decision was one reasonably open to him.
4. The Tribunal correctly recognised the distinction between a direction based on unsuitability and one based on misconduct. There was no error of law in its treatment of that distinction.
5. The oral evidence relied upon by the Secretary of State did not amount to impermissible fresh information. The respondent’s evidence about responsibility, remorse, honesty, co-operation and the likelihood of repetition substantially confirmed material already contained in the expert report.
6. The direction was protective rather than a punishment for past misconduct. The Tribunal was entitled to assess the risk of repetition and the effect on public confidence, and to conclude that the low risk and the circumstances did not require a continuing sanction.

• Care Standards Tribunal: On 20 May 2008, allowed the respondent’s appeal against the List 99 direction.
• High Court (Administrative Court): Dismissed the Secretary of State’s appeal against that decision.