H & Anor v A City Council & Anor

Disclosure of information about a convicted sex offender requires a fact-sensitive balancing exercise. The public interest in protecting children does not automatically take priority over the individual’s right to respect for private life. A public authority must consider the risks to vulnerable people, the individual’s interests, and the consequences of disclosure. Judicial review is concerned with legality and proportionality, not with choosing the best decision on the merits. A policy reserving the possibility of future disclosure may be lawful where it leaves decisions to be made according to the facts then existing. Measures concerning personal assistants may nevertheless be unlawful where they impose disproportionate interference with private life. A direct payment cannot be made subject to a managed-account condition unless that condition is authorised by the statutory scheme.

H, a convicted sex offender, and L, his partner, challenged decisions by A City Council concerning disclosure of H’s conviction to organisations connected with him, future disclosure to organisations and personal assistants, and payment of personal assistants through a managed payroll account. The claim relied on common-law principles governing disclosure, article 8 of the European Convention on Human Rights, and the statutory scheme for direct payments.

The council maintained that the measures were necessary to safeguard children. The court considered whether the past disclosures, the future-disclosure policy, the personal-assistant disclosures and the managed-account requirement were lawful and proportionate.

1. The disclosures made to nine selected organisations in 2009 were lawful. The council had considered relevant risks, including H’s convictions, the safeguarding concerns raised by another authority, the pending criminal charge and the nature of H’s activities. The disclosures were limited and guarded. The court’s task was judicial review, not an appeal on the merits.

2. The policy concerning future disclosure to organisations and individuals was lawful. It did not require automatic disclosure. It reserved case-by-case decisions, with disclosure more likely where H’s work involved direct contact with children or enhanced his credibility as someone safe to be around children. Such a policy represented the minimum permissible response to the council’s safeguarding duty.

3. The proposed disclosures to personal assistants were unlawful. Although the council had legitimate safeguarding concerns, the relevant factors included the largely home-based nature of the assistants’ work, the importance of their relationships with H and L, the absence of children from the homes of two long-term assistants, and contractual provisions preventing children being brought to work. The council was entitled to have reservations about H and L’s assurances, but was not entitled to discount their evidence wholly. The decision was disproportionate and was quashed.

4. The managed-account requirement was parasitic upon the unlawful disclosure requirement and therefore also fell. Independently, regulation 11(4) of the Community Care, Services and Carers and Children’s Services (Direct Payments) (England) Regulations 2009 did not authorise a condition requiring payment through an intermediate managed account. Such a condition was inconsistent with the nature of a direct payment. Monitoring could instead be achieved through the information requirement in regulation 11(5)(b).

5. The policies concerning personal assistants, both disclosure and payment, were quashed. The remaining challenges failed.