Professional Standards Authority v Health and Care Professions Council and Leonard Ren‑Yi Yong

The High Court considered a referral by the Professional Standards Authority under section 29(4) of the National Health Service Reform and Health Care Professions Act 2002 of a Conduct and Competence Panel decision of the Health and Care Professions Council. The court reviewed whether certain findings of the Panel that the registrant's conduct was "inappropriate" but not "in a harassing manner", and that some items of conduct were not "sexually motivated", were sustainable.

The court applied the established CPR Part 52 appellate framework for statutory appeals and authorities summarising the court's approach to appeals from professional regulatory bodies (including Jagjivan and Basson as discussed in the judgment). It held that the HCPC Panel had erred by failing to have due regard to the public sector equality duty (section 149 of the Equality Act 2010) and the statutory definition of harassment in section 26 of the Equality Act when considering whether conduct amounted to harassment. On the facts as found by the Panel, the court concluded that certain acts were properly characterised as harassment and that two proven acts were sexually motivated. The court added findings of harassment in respect of Workers 1, 3, 6 and 7 (and some particulars against Worker 1 and Worker 7 were found to be sexually motivated), remitted sanction to the appropriate statutory body for redetermination, and made costs orders.

This was a section 29(4) referral by the Professional Standards Authority challenging parts of a HCPC Conduct and Competence Panel Decision concerning Mr Leonard Ren-Yi Yong, a social worker. The HCPC Panel had found multiple acts of inappropriate conduct (including unsolicited sexualised comments and unwelcome physical contact) proved against the registrant but had not concluded that those acts were "in a harassing manner" nor that some acts were "sexually motivated". The PSA sought substitution of findings of harassment and sexual motivation in relation to specified particulars and remission of sanction.

Nature of the application: a review/appeal under section 29(4) and section 29(7) of the National Health Service Reform and Health Care Professions Act 2002 seeking to quash aspects of the Panel's Decision and to substitute findings that certain conduct was harassing and sexually motivated, and to remit sanction.

Parties and posture: Appellant: Professional Standards Authority for Health and Social Care (PSA). First Respondent: Health and Care Professions Council (HCPC). Second Respondent: Mr Leonard Ren-Yi Yong (did not attend or participate). The PSA and the HCPC agreed a narrowed basis on which the appeal might be allowed, but the registrant did not join that agreement. The hearing was before Mr Justice Griffiths.

Issues framed by the court:

• Whether the HCPC Panel was legally required to apply the Equality Act definition of harassment (and hence whether the Panel erred in law by not having due regard to section 149 of the Equality Act 2010 and section 26 of the Equality Act).
• Whether the Panel provided adequate reasons for rejecting harassment and sexual motivation findings.
• Whether the Panel's directions and reasoning on the correct test for sexual motivation were sufficient.
• Whether the sanction (a three-year Caution Order) was compatible with the HCPC Sanctions Policy given the Panel's own findings and whether sanction should be remitted.

Reasoning and decision: The court applied the CPR Part 52 standard of review and relevant authorities on appellate treatment of regulatory findings. The judge held that the HCPC Panel erred by failing to have due regard to the Equality Act definition of harassment and by not engaging adequately with evidence relevant to sexual motivation. The court gave deference to the Panel's findings of primary fact but drew different inferences where the statutory definition required consideration of the victim's perception and effect of conduct. On that basis the court concluded that conduct found proved in respect of Workers 1, 3, 6 and 7 met the section 26 definition of harassment and that in respect of Workers 1 and 7 some proved conduct was sexually motivated. Because the Panel explicitly relied on its conclusions that the conduct was not harassing or sexually motivated when imposing the Caution Order, the judge remitted sanction for reconsideration by the successor statutory body (Social Work England) and ordered costs (HCPC to pay PSA costs of £20,000; Mr Yong to pay HCPC costs of £1,000 limited to service-related expenses).

The judgment also records the court's caution about interfering with primary fact findings but explains that the drawing of inferences about motive and effect may be less constrained, and stresses the HCPC Panel's failure to consider the Equality Act definition when it was bound by the public sector equality duty.

Appeal allowed in part. The court found that the HCPC Panel erred in law by failing to have due regard to the public sector equality duty and the statutory definition of harassment and by failing adequately to address evidence of sexual motivation. The court substituted findings that specified elements of the registrant's proven misconduct were "in a harassing manner" (paraphrased in the judgment to include particulars against Workers 1, 3, 6 and 7) and that two proven items of misconduct (against Workers 1 and 7) were sexually motivated. Because the Panel had relied on the contrary findings when imposing a three-year Caution Order, the court remitted sanction for redetermination by the successor statutory regulator. Costs were ordered as recorded in the judgment.

This is a High Court review following a referral under section 29(4) of the National Health Service Reform and Health Care Professions Act 2002 of a Conduct and Competence Panel decision of the HCPC (panel hearings September–October 2019). The High Court hearing took place on 8 December 2020 and the judgment was handed down as [2021] EWHC 52 (Admin).