A care worker, ‘M’, judicially reviewed Bromley’s finding that he had sexually assaulted young adults at a residential respite centre for children with learning difficulties. He wanted the council prohibited from taking steps to register his name with the Secretary of State for inclusion on the register of persons unsuitable to work with children.
A child protection officer had carried out the investigation, interviewing over 10 young adults and a member of staff, and concluding that 4 young adults had been assaulted. A year later, the authority employed an outside consultant to review this investigation, and the consultant had grave reservations about the manner in which it had been conducted, and the inadequacy of the material for use in legal or disciplinary proceedings. The LA considered this view but decided that it was obliged to forward the care worker’s name to the SoS. The name was added to the list, and the worker appealed, but the appeal was adjourned pending the outcome of the judicial review.
The court held that judicial review was not appropriate for a challenge to the conclusions, given the alternative, and better remedies available. Following a referral, a person had two opportunities for the avoidance of injustice – firstly the SoS might reject the reference, and secondly there was the right of appeal to the tribunal, with full investigative powers into the procedure and allegations leading to the reference. Setting aside the referral on a JR would remove the name from the list, and prevent the hearing, and might cause disadvantage to third parties and children in particular. JR should be saved for when the allegation was that the reference was made in bad faith or was plainly unlawful.