H and L v A City Council

A local authority considering disclosure of a person’s convictions to organisations connected with his work must identify a pressing need and conduct a fact-sensitive proportionality assessment. Neither child protection nor private life has automatic precedence. Direct contact with children is highly relevant, but no bright-line rule determines every case. In judicial review, the court applies an intensive proportionality review, not Wednesbury irrationality. Procedural fairness requires consultation and an opportunity to make representations before disclosure. A blanket disclosure policy was unlawful where it ignored that the work did not involve children. A more nuanced future policy was substantively permissible but procedurally deficient. Under the direct-payments regulations, a council cannot use a condition to divert payments through an intermediary managed account where the statutory scheme requires payment to the recipient or nominee.

H, a convicted sex offender, and L, his unconvicted partner, received direct payments to employ personal assistants and operated a company providing services to public and other bodies. After learning of H’s convictions and a pending prosecution, the local authority disclosed information about him to nine organisations and adopted a policy for future disclosures. It also proposed requirements affecting their personal assistants and payment through a managed account.

H and L sought judicial review. The High Court dismissed their challenges to the past disclosures and future disclosure policy, but quashed the personal-assistant and managed-account decisions: [2010] EWHC 466 (Admin). The appeal and cross-appeal concerned proportionality, procedural fairness, Article 8, and the authority’s statutory power to impose the proposed payment arrangements.

Outcome. Munby LJ gave the leading judgment. The appeal was allowed on issue (i) and to the extent indicated on issue (ii). The local authority’s cross-appeal on issues (iii) and (iv) was dismissed. Applications to adduce further evidence were also dismissed.

1. Applicable legal framework. The local authority had to apply the common-law principles in R v Chief Constable of the North Wales Police ex p Thorpe, as recalibrated in R (L) v Commissioner of Police of the Metropolis [2009] UHSC 3. Disclosure of conviction information is justified only where there is a pressing need. The issue is one of proportionality, and the common-law and Article 8 approaches produce the same outcome. Article 8 was engaged despite the factual differences from L.
2. Review by the court. Proportionality required the four-stage approach stated in Huang v Secretary of State for the Home Department, Kashmiri v Same [2007] UKHL 11. The court’s task was review, not merits decision, but the appropriate standard was the intensive review described in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, rather than Wednesbury irrationality. Judge Langan had therefore erred in equating proportionality with rationality and in applying the wrong standard. The Court of Appeal was entitled to exercise its own judgment.
3. Procedural fairness. The common law and Article 8 required consultation with those affected, disclosure of the gist of the relevant information, and an opportunity to make representations before disclosure. The process also had to allow affected persons to exercise available remedies in time. The April 2009 process, conducted behind H and L’s backs, was fundamentally unfair.
4. Past disclosures. The authority’s blanket approach, requiring H to stand down from all bodies and disclosing information to all known contacts, failed to engage with the critical fact that H and L did not work with children. It was neither fair, balanced nor proportionate. The decisions were quashed, independently also for procedural irregularity.
5. Future disclosures. There was no bright-line rule. Each proposed disclosure had to be assessed on its own facts. Direct contact with children was highly relevant but not necessarily decisive. A criterion based merely on building credibility as a safe person could not justify disclosure broadly; there had to be a real possibility that the work would lead to contact with children. The later policy was substantively appropriate, but unlawful because it contained no procedure for consultation before disclosure.
6. Personal assistants. Article 8 applied because the proposed letter would inevitably prompt questions leading to disclosure of H’s conviction. Considering the existing contractual safeguards, the disruption to important relationships, and L’s distinct position, the proposed requirements were unlawful. The cross-appeal on issue (iii) was dismissed.
7. Managed account. Under section 57 of the Health and Social Care Act 2001 and the The Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009, the authority had to make direct payments to the recipient or a nominated person. A condition under regulation 11 could not destroy the essence of that right by requiring payment through an intermediary. Monitoring could instead be achieved by requiring information under regulation 11(5)(b). The cross-appeal on issue (iv) was dismissed.

1. Court of Appeal (Civil Division): Appeal allowed on issue (i) and to the extent indicated on issue (ii); cross-appeal dismissed on issues (iii) and (iv): [2011] EWCA Civ 403.
2. High Court of Justice, Administrative Court: Challenges to past disclosures and the future disclosure policy dismissed; decisions concerning personal assistants and the managed account quashed: [2010] EWHC 466 (Admin).