Peryagh v Secretary of State

Factual and Procedural Background

The Appellant was employed as a Bank Worker at Grey Ferrers Rest Home and was alleged to have assaulted three elderly dementia patients in his care on 17th May 2007. Following internal disciplinary proceedings, he was dismissed on 31st August 2007, and his internal appeal against dismissal was unsuccessful. He was convicted at Leicester Magistrates Court on 7th January 2008 of three counts of common assault related to these incidents, receiving a sentence of 150 hours unpaid community work, compensation payments, and court costs. The Appellant appealed this conviction to the Crown Court, which conducted a complete rehearing and dismissed the appeal, confirming the convictions and sentence. The Appellant subsequently referred his case to the Criminal Cases Review Commission (CCRC) alleging a miscarriage of justice, but no substantive decision had been made by the CCRC at the time of the tribunal hearing.

Following the conviction, the Appellant was provisionally listed by the Secretary of State under the Protection of Vulnerable Adults (PoVA) scheme. The Appellant submitted limited observations during the provisional listing process but did not provide substantive evidence to counter the listing. The Secretary of State confirmed the Appellant’s inclusion on the list based on the conviction and evidence available.

The Appellant appealed to the Tribunal seeking to challenge the listing, primarily denying the assaults and requesting further investigation into the evidence and nursing records. The Secretary of State applied to strike out the appeal on the basis that it had no reasonable prospect of success, citing statutory prohibitions on challenging convictions and the finality of the criminal court decisions.

Legal Issues Presented

1. Whether the Tribunal has jurisdiction to consider the facts underlying the Appellant’s criminal convictions in the context of the appeal against the PoVA listing.
2. Whether the appeal has any reasonable prospect of success given statutory provisions barring review of convictions.
3. Whether the appeal should be struck out pursuant to Rule 8(4)(c) of the Tribunal Procedure Rules on the basis of no reasonable prospect of success.

Arguments of the Parties

Appellant's Arguments

• The Appellant denies that he assaulted or caused harm to any residents at the care home.
• He contends that the photographs and evidence of bruising should be further investigated due to possible medical conditions of the victims that could explain bruising.
• The Appellant requests further investigation into nursing notes and positional change charts to highlight alleged inconsistencies in witness evidence.
• He maintains that the allegations were fabricated by a staff member in retaliation for criticism.
• The Appellant argues that the Crown Court hearing was unsafe and points to alleged inconsistencies in witness statements and evidence.
• He suggests that his provisional listing should be maintained pending the outcome of the CCRC review.

Secretary of State's Arguments

• The appeal should be struck out because it has no reasonable prospect of success under Rule 8(4)(c) of the Tribunal Procedure Rules.
• Statutory provisions (Care Standards Act 2000 and Protection of Children Act 1999) prohibit the Tribunal from reviewing the facts underlying criminal convictions.
• The Appellant’s convictions were upheld on two occasions by the Magistrates and Crown Courts, and these facts must be accepted as proven for the purposes of the appeal.
• The assaults involved separate incidents of abuse of vulnerable adults, serious enough to warrant convictions and a custodial sentence consideration.
• The Appellant has shown no remorse or recognition of harm caused, which supports a finding of unsuitability to work with vulnerable adults and children.
• The PoVA team conducted a full investigation based on all available evidence, including internal employment investigation documents and confirmation of conviction.
• The Appellant’s grounds of appeal do not raise arguable issues but attempt to challenge the criminal convictions or seek further investigation without basis.
• Delaying consideration of the strike out application pending the CCRC’s undetermined review is inappropriate due to uncertainty and potential for indefinite delay.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mairs v The Secretary of State [2004] 269 PC	Guidance on the Tribunal’s approach to unsuitability in the context of Protection of Children Act (PoCA)	Used as guidance for assessing unsuitability despite being in the context of PoCA rather than PoVA

Court's Reasoning and Analysis

The court acknowledged that statutory provisions under the Care Standards Act 2000 and the Protection of Children Act 1999 expressly prohibit the Tribunal from reconsidering the facts leading to a criminal conviction. The Appellant’s convictions were upheld on two occasions: first before the Magistrates Court and then on a complete rehearing in the Crown Court. The Tribunal found that the Appellant’s grounds of appeal amounted to an attempt to challenge the criminal convictions themselves or to require further investigation, neither of which the Tribunal was permitted to entertain.

The Tribunal considered the procedural history, including the pending review by the Criminal Cases Review Commission (CCRC), but concluded that it was inappropriate to delay the strike out application pending the uncertain and potentially protracted CCRC process. The Tribunal reasoned that even if the CCRC were to refer the case back for a fresh appeal, the criminal courts would again determine the facts and the Tribunal’s position would remain unchanged until any convictions were quashed.

Given that the appeal was solely based on challenging the criminal convictions, which the Tribunal was barred from reviewing, the appeal had no reasonable prospect of success. The Tribunal did not consider the issue of unsuitability as it was unnecessary to do so in light of the procedural bar.

Holding and Implications

The appeal is struck out pursuant to Rule 8(4)(c) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 on the basis that it has no reasonable prospect of success.

This decision results in the dismissal of the Appellant’s appeal against the PoVA listing. The Tribunal’s ruling does not set new precedent but affirms the statutory limitation on reviewing criminal convictions within this Tribunal’s jurisdiction. The Appellant retains the option to pursue any successful criminal appeal or CCRC referral to seek reconsideration of his listing.