H and L v A City Council & B City Council (Interested Party) (2010) EWHC 466 (Admin)

In this case H and L sought to challenge the lawfulness of a decision by the defendant city council (A) to disclose and retain the right to make future disclosure of H’s past convictions. H, who as a severely disabled man received community care services from A, provided by way of direct payment. His partner, L, was also in receipt of services; both employed carers directly to assist them. Both H and L were actively involved in the disability movement and together ran a business advising universities and other public bodies on disability issues. H was convicted in 1993 of a serious sexual offence. He maintains he is a victim of a miscarriage of justice and this position is supported by L. During the course of  2009 B City Council wrote to A City Council notifying them that H was facing trial for a similar offence as the one he was convicted for in 1993, A also later discovered that H had another conviction for failing to disclose his conviction on a job application.

As a result of this information A took the view that H may pose a risk to children in its area for which it had a duty to safeguard. A convened a strategy meeting so as to develop a better understanding of H’s activities and to develop an action plan for further investigation. Prior to a subsequent strategy meeting A contacted nine organisations H was involved with and notified them of his past conviction and potential for future convictions. It also met with H and L to agree a way in which any risk could be managed. No agreement could be reached so on 21.10.09 A’s Director of Legal Service wrote to H setting out the requirements they felt would be necessary in order to manage their perceived on-going risk to children. The authority proposed that any carers employed via the direct payments should be paid via a managed account so that there was an audit trail for the authority; that each of their employees sign a letter written by A City Council setting out that they would not take their children to work and would not allow unsupervised contact with their own or other children within a work or social context outside H’s home. A City Council proposed to review these measures after one year. The authority also repeated a request for details of the organisations H and L work with and whether this brought them into contact with children. Upon receipt of the list it was intended that the City Council would consider on a case-by-case basis the level of disclosure necessary to future organisations that H and L became involved.

The judge, on forming a view as to whether disclosure would engaged ECHR rights, in particular those protected under article 8, confirmed “it is no longer right to assume that priority must be given to the need to protect the vulnerable over the right to respect for the private life of the individual.  Where competing Convention rights are in issue, neither has precedence over the other.” He took the view that the common law protected individuals from unlawful disclosure in the same way as rights under article 8 would, save that a breach of article 8 give rise to a remedy in damages which did not arise under the common law.

On the matter of whether it was lawful for A to have disclosed to the nine organisations H’s past conviction the Judge reminded the applicants that this was an application for judicial review, as such he could not consider the matter as if it were an appeal on the merits.  “The test of legality is the familiar one: whether relevant considerations were ignored, or irrelevant considerations were taken into account, or the decisions reached were ones at which no reasonable authority could have arrived (or, in Convention terms, were disproportionate).” He accepted that A had known about H’s conviction for a number of years without taking any action, but concluded that at the time of the disclosures A City Council had recently become aware of the concerns of B City Council, of H’s conviction for dishonesty and recent charges for a similar offence, and the wide scope of his (“wholly legitimate and, in themselves, admirable”) involvement in the disability movement. He did not accept that the disclosure was disproportionate, but rather “the disclosures were made in a guarded fashion.  If one were to judge what happened by the ‘pressing need’ test, I would say that neither the decision to make disclosure nor the way in which that decision was implemented have been shown to have failed that test. …The policy adumbrated in the decision letter represented the minimum permissible response to the situation with which ACC was faced.  Anything less would have been open to legitimate criticism as constituting a failure of the duty of ACC towards children within the area.”

However in respect of the decision to disclose to the personal assistants of H and L the Judge determined that this was unlawful. He reached this conclusion on the basis that the actions proposed related only to activities within the home of H and L and would, because of its nature, threaten to disrupt relationships which are of significance to H and L.  In reaching its decision on what it proposed to do A City Council had ignored evidence from H and L that two of the three long−term carers did not have children and that they had recently inserted a “no children at work” provision in the relevant employment contracts.  The Judge accepted that A may have reservations about the trustworthiness of H and L, but did not agree that this alone justified discounting all assurances from them about their future conduct. Of relevance was the fact that the terms of the disclosure proposed by A would likely raise suspicions in the minds of the employees which, in relation to H, may appear more serious than was warranted, and in terms of L were wholly unjustified.  Finally he found that the requirement that employees be paid through managed accounts was unlawful both because of the breach of the common law duty and ECHR rights, but also because it is inconsistent with the regime of direct payments. He accepted that direct payments must be monitored and that conditions can be attached to their use, but of the kind that was proposed by A in this instance, he found there was no specific statutory provision for it so A City Council must limit any condition to the kind envisaged in regulation 11(5)(b) Community Care, Services and Carers and Children’s Services (Direct Payments) (England) Regulations 2009.

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