R (on the application of Wright and others) v Secretary of State for Health and another [2009] UKHL 3

The House of Lords ruled in favour of four Royal College of Nursing (RCN) members who were unfairly excluded from the workplace under the Protection of Vulnerable Adults (POVA) and Protection of Children Act (POCA) lists.

Part VII of the Care Standard Act 2000 (the "Act") created a scheme for the creation and maintenance of a statutory list, known as the POVA list, of persons who are unsuitable to work with vulnerable adults. Inclusion on the POVA list effectively precluded a person from working as a care worker with vulnerable adults.

Each of the four claimants was placed on the POVA list provisionally after they had been referred to the Secretary of State under section 82 of the Act.

Section 82 of the Act requires a person who carries out a care home or domiciliary service to refer a care worker to the Secretary of State if the worker has been dismissed on the ground of misconduct which harmed, or placed at risk of harm, a vulnerable adult. Employers must also refer a worker who no longer works for them but they would have considered dismissing if the worker was still employed by them. At that stage normally the only information available to the Secretary of State is that provided by the employer. If that information leads the Secretary of State to consider that it may be appropriate to include the care worker on the POVA list, she must do so. At that stage, the Secretary of State forms no concluded view as to whether the care worker in question should be included on the list. This inclusion is in a sense provisional, pending confirmation of inclusion on the list by the Secretary of State. Although the inclusion of a worker on the list is provisional, the effect is immediate. The listing prevents any new employer from employing the worker in a care position, or to deprive them of such a position if they have one.

A care worker who is aggrieved by this provisional listing has three available remedies. The first is to seek to convince the Secretary of State that this listing was unjustified, by providing observations invited under s.82(5). The second is by way of application to the Care Standards Tribunal under s.86(2). Such an application requires the leave of the tribunal, and can only be made after a worker has provisionally been on the list for nine months. The third is to seek judicial review of the Secretary of State's decision that it was appropriate for the worker to be included in the list.

The claimants applied for judicial review. One of the issues before the Court was whether the provisions of Part VII were compatible with the rights of care workers under Article 6 of the European Convention on Human Rights (as set out in Part 1 of Schedule 1 to the Human Rights Act 1998). Article 6(1) guarantees the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal.

The High Court allowed the application and granted a declaration of incompatibility.

The Court of Appeal however, reversed that decision. The majority held that provisional listing did engage article 6, but that a breach could be avoided by giving the care worker a right to make representations before being placed on the list. The Claimants took their case to the House of Lords.

House of Lords’ ruling

The House of Lords held that the list is inconsistent with Article 6 of the European Convention on Human Rights and issued a Declaration of Incompatibility. Lady Hale stated that process does not begin fairly by not offering the care worker an opportunity to answer the allegations made to them, before imposing upon them possibly irreparable damage to their employment or prospects of employment. She stated that the effect of provisional listing, followed by a delay before the merits of the case were examined, was draconian. The House of Lords concluded that the solution favoured by the Court of Appeal did not cure the problem and therefore declared that section 82(4)(b) of the Act is incompatible with the Convention rights.

The House of Lords did not make any attempts to suggest ways in which the scheme could be made compatible. One of the reasons for this was that the Act and the Protection of Children Act 1999 will in due course be replaced by a completely different scheme laid down by, and under, the Safeguarding Vulnerable Groups Act 2006 (the "2006 Act"). Following the House of Lords’ ruling, the RCN have called for the Government to urgently review the 2006 Act to ensure that the inherent unfairness of the POVA system can be changed before the replacement scheme comes in to operation.

Potentially, for those care workers who have been wrongly placed on the POVA list, the judgement will enable them to argue that the listing was in breach of their rights under the Convention. Those care workers who were not confirmed on the list, or those who were removed from the list after an appeal, may have a right to bring compensation claims against the Government. The decision will also have similar implications for those placed on the POCA list.

Eve Piffaretti can be contacted by telephone on 029 2038 5917 or by email.