R (Wright) v SSH (2009) UKHL 3

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Section 82(4)(b) of the Care Standards Act 2000, which provides for the provisional inclusion in the POVA list of a care worker (thus depriving him of employment) immediately after concerns are raised but before any judicial hearing, is incompatible with Articles 6 and 8.

Contents

Related judgments

R (Royal College of Nursing) v SSHD (2010) EWHC 2761 (Admin)

R (Wright) v SSH (2009) UKHL 3

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.

Headnote

HUMAN RIGHTS — Right to fair hearing — Determination of civil rights and obligations — Statutory provisions for referring care workers and including them in list of persons precluded from working with vulnerable adults — Whether provisional inclusion in list without hearing breaching worker's Convention rights right to fair trial and to private life — Whether statute to be read as providing for opportunity for worker to make representations prior to provisional inclusion — Whether incompatible with Convention rights — Human Rights Act 1998, Sch 1, Pt I, arts 6(1), 8(1)— Care Standards Act 2000, s 82(4)(b)

Summary

The procedure under s 82(4)(b) of the Care Standards Act 2000 allowing the provisional listing of care workers as being unsuited to work with vulnerable adults after a complaint had been made about them, without giving them an opportunity to answer the allegations, which had the effect of barring them from care work, was incompatible with the right to a fair hearing under art 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and also with the right to private life under art 8(1).

The House of Lords so held in allowing an appeal by the claimants, June Wright and three others, against the decision of the Court of Appeal (Dyson and Jacob LJJ, May LJ dissenting in part) [2008] QB 422 to allow an appeal by the Secretary of State for Health and the Secretary of State for Education and Skills against the order of Stanley Burnton J [2007] 1 All ER 825 who had made a declaration under s 4(2) of the Human Rights Act 1998 that s 82(4)(b) of the 2000 Act was incompatible with arts 6 and 8. The Court of Appeal majority held that a breach of art 6 could be avoided by a declaration under section 3(1) of the 1998 Act that s 82(4)(b) was to be read compatibly with art 6 as requiring the Secretary of State to give a care worker an opportunity to make representations before being included in the list, unless doing so would expose vulnerable adults to the risk of harm. It did not consider art 8.

LORD PHILLIPS OF WORTH MATRAVERS, LORD HOFFMANN and LORD HOPE OF CRAIGHEAD agreed with Baroness Hale of Richmond.

BARONESS HALE OF RICHMOND said that each claimant was a nurse working in a care home who had been provisionally listed under s 82(4)(b) by the Secretary of State for Health. In each case the Secretary of State for Education and Skills had then, pursuant to s 92 of the Act, provisionally listed the claimant as unsuitable to work with children. S 82(4)(b) did not comply with art 6(1) because it failed to offer the care worker an opportunity to answer the allegations made against her before imposing upon her possibly irreparable damage to her employment or prospects of employment. The solution devised by the Court of Appeal did not solve the problem. It offered some workers an opportunity to make representations in advance while denying that opportunity to others who might have been just as unfairly treated by their former employers. A care worker might have a good answer to allegations no matter how serious they were. Art 8, which extended to the right to establish relationships with work colleagues, was also engaged. Listing was likely to have an effect in practice going beyond its effect in law. Even though the lists were not made public, the fact was likely to get about and the stigma would be considerable.

LORD BROWN OF EATON-UNDER-HEYWOOD agreed.

Other

R (Wright and others) v Secretary of State for Health and another [2009] UKHL 3; [2009] WLR (D) 20

HL(E): Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood: 21 January 2009

Appearances: Martin Spencer QC, Jeremy Hyam and Jamie Carpenter (Solicitor, Royal College of Nursing) for the claimants; Nathalie Lieven QC and Zoe Leventhal (Solicitor, Department of Health) for the defendants.

Reported by: C T Beresford, barrister.

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ICLR case report