Court of Appeal
Published November 16, 2007
Regina (Wright and Others) v Secretary of State for Health and Another
Before Lord Justice May, Lord Justice Dyson and Lord Justice Jacob
Judgment October 24, 2007

Those who worked with vulnerable adults should be given the opportunity to make representations before being placed on a list preventing them doing such work.

That would prevent section 82(4)(b) of the Care Standards Act 2000 from being incompatible with the fair hearing provisions of article 6 of the European Convention on Human Rights.

The Court of Appeal so held, inter alia, in allowing an appeal by the Secretary of State for Health and the Secretary of State for Education and Skills against the decision of Mr Justice Stanley Burnton ( The Times November 28, 2006) when he granted applications by June Wright, Khemraj Jummun, Mary Quinn and Barbara Gambier, under section 4(2) of the Human Rights Act 1998, for a declaration, inter alia, that section 82(4) of the 2000 Act was incompatible with article 6.

Mr Philip Sales, QC and Ms Nathalie Lieven, QC, for the appellants; Mr Martin Spencer, QC and Mr Jamie Carpenter for the claimants.

LORD JUSTICE MAY said that the claimants’ case was that provisional inclusion in the protection of vulnerable adults list under section 82(4)(b) was procedurally unfair because the care worker had no right under the statute, or opportunity in practice, to be heard before the provisional listing occurred; and because provisional listing resulted, under section 89, in the loss of existing employment and in an embargo on obtaining any other employment in a care position.

The statutory test in section 82(4) did not require a final determination of facts. It was open to the provisionally listed care worker to challenge the provisional listing by judicial review, or to apply to the secretary of state, under section 81(3), to remove the name from the list and to apply for judicial review of an adverse decision under that section.

A provisionally listed worker who could quickly establish mistaken identity or who could show that the dismissal was judged to be unfair by an employment tribunal did have an independent judicial remedy.

Those who might not have that remedy were those for whom there was a real prospect that the secretary of state would, after due process, confirm their inclusion on the list.

For those and other reasons, the claimants had not established that the structure of section 82(4) was incompatible with article 6.

LORD JUSTICE DYSON, concurring, said that the judge was wrong to grant a declaration of incompatibility. The 2000 Act could and should be read and given effect in a way which was compatible with article 6 so as to require the secretary of state to give a care worker an opportunity to make representations before he or she was included in the list, unless to give such an opportunity would expose vulnerable adults to the risk of harm.

If construed so as to deny to workers the right to be heard in all cases, section 82(4)(b) of the 2000 Act was incompatible with article 6.1.

But section 3(1) of the Human Rights Act 1998 required the court, so far as it was possible to do so, to read and give effect to legislation in a way which was compatible with Convention rights.

The statute did not expressly accord or deny to a worker an opportunity to make representations at the provisional stage: it was silent on the subject.

To accord an opportunity to make representations in a qualified way respected the intention of Parliament that vulnerable adults should be protected from harm at the hands of dangerous care workers.

The use of section 3 of the 1998 Act for that purpose did not produce a result which departed substantially from a fundamental feature of the 2000 Act such that it could be characterised as amendment rather than interpretation. It did not go against the grain of the statute.

His Lordship would therefore interpret section 82(4)(b) as requiring the secretary of state to give workers the right to make representations before he made a decision to list unless he reasonably considered that the resultant delay would place a vulnerable adult at risk of harm.

The appeal would be allowed to the extent of quashing the declaration of incompatibility.

Lord Justice Jacob agreed with Lord Justice Dyson. Solicitors: Solicitor, Department of Health; Mr Richard Bernhard, Oxford Street.

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