Wood, R (on the application of) v Secretary of State for Education

A clear and unqualified promise by a public authority may create a substantive legitimate expectation that further action will not be taken. The authority bears the burden of justifying departure from that expectation. The court must decide whether departure pursues a legitimate public aim and is proportionate.

In assessing proportionality, the court may give substantial weight to an available merits appeal before an independent tribunal, particularly where child protection is engaged. Criticism of the evidence or expert reasoning will ordinarily be for that tribunal, rather than judicial review, unless the case is exceptionally devoid of evidential foundation or involves bad faith. The interference with private life caused by a barring decision may likewise be justified under article 8(2).

The claimant, a teacher, challenged a decision made under section 142 of the Education Act 2002 barring him from working with children. In 2005 the Secretary of State had decided to take no further action, while reserving the ability to consider further misconduct. Following the Historical Cases Review, the claimant’s case was reconsidered and a barring direction was made in October 2009.

The claimant alleged breach of substantive legitimate expectation and of articles 6 and 8 of the Convention rights given effect by the Human Rights Act 1998. He also had a statutory appeal pending before the Care Standards Chamber of the First-tier Tribunal. The central issues were whether the earlier representation created a legitimate expectation, whether departure from it was proportionate, and whether judicial review should be entertained notwithstanding the alternative appeal.

1. Claim dismissed. The letter stating that no further action would be taken created a legitimate expectation that further action would not be taken unless further misconduct came to the department’s attention. It was clear, unambiguous and devoid of relevant qualification.
2. The burden therefore lay on the Secretary of State to justify departure from that expectation. The applicable test was whether departure pursued a legitimate aim in the public interest and was proportionate. Protecting children from sexual abuse, particularly by persons in positions of trust, was plainly a legitimate and pressing aim.
3. The court distinguished between reconsidering a previously closed case and making the resulting barring order. The availability of a merits appeal against the barring order before an independent tribunal was an important factor in the proportionality assessment. It also supported the discretionary refusal of judicial review because the tribunal could assess the evidence and merits in the round.
4. The reconsideration process included representations, review by an independent expert panel, specialist risk assessment and an opportunity for a face-to-face assessment. Criticism of the expert evidence and reasoning concerned the weight to be given to the evidence and was suitable for the tribunal. The present case was not one in which there was no evidential basis at all, nor was there any allegation of bad faith.
5. The claimant’s article 6 argument failed because his complaint concerned the substantive outcome rather than procedural fairness, and the procedure adopted was fair. The Secretary of State had exercised jurisdiction over the claimant for Convention purposes despite his residence overseas. The barring order interfered with article 8(1), but was justified as a proportionate means of pursuing the legitimate aim under article 8(2).

The judicial review claim was dismissed. The court expressed no view on the merits of the pending tribunal appeal.

First-instance judicial review proceedings. The claimant had a statutory appeal against the barring direction pending before the Care Standards Chamber of the First-tier Tribunal.