This was an appeal against the decision by the Court of Appeal’s determination that s.82(4)(b) Care Standards Act 2000 [‘CSA’] was not in contravention of the Human Rights Act 1998 as it should be construed as requiring the defendant secretary of state to allow care workers an opportunity to make representations concerning allegations made against them before including them on a provisional list preventing them from working with vulnerable people, unless the Secretary of State reasonably believed any delay would place vulnerable people at harm. The appellants, registered nurses who had all been provisionally registered on the PoVA list effectively barring them from employment within the field of care work as this involved working with vulnerable adults. In each of the cases it had taken between four and six months from the referral to provisional listing and then a further eight or nine months before a determination. W had argued that both article 6 and 8 of the ECHR were engaged and broken by the low threshold that was applied when provisionally listing and by the lack of any right to an oral hearing before their names were included on the provisional list.
The House of Lords held that the provisionally listing under this scheme was a determination of a civil right and made an exception to the general rule that article 6 would not apply to provisional measures as, despite the fact that listed persons would be eventually able to put their case to the Care Standards Tribunal, they were in the meantime deprived of their employment. The procedure under the CSA did not comply with article 6(1) because the individual was not given an opportunity to answer the allegations prior to the imposition of possible irreparable damage to their employment and prospects of employment. The House of Lords did not agree that the solution suggested by the Court of Appeal would suffice to overcome the inequality.
Further the House of Lords found that article 8 of the ECHR was engaged and breached by the process under CSA because for some people the impact would be wide enough to affect personal relationships to such an extent that this would constitute an interference with the right to respect for the private life, particularly in light of the low threshold and risk of arbitrary registration. In addition the House of Lords raised concern that the effect was likely to go beyond that set out in law, a provisional listing prevented the individual from working with vulnerable adults and children, the Lords believed that despite the fact that the lists were not released to the public, the scope of the ban meant that it was likely that a person’s listing could become known and the stigma attached would be considerable. They therefore recommended that any new scheme would have to be devised to ensure any unjustified interference with article 8 ECHR rights was avoided.
The Lords made a declaration that s82(4)(b) of the Care Standards Act 2000 was incompatible with Convention rights.