Many professions, for example doctors, lawyers etc require individuals to register and maintain a practising certificate in order to practice. Others do not. This can be a key difference when it comes to considering the jurisdiction of their regulator.
Shortly after the turn of the millennium Mr Zebaida had been a music teacher for one term at a London School. Thirteen years later he was convicted of sexually assaulting a 15 year old child in 2012. The Disclosure and Barring Service decided not to include his name on the list of those unsuitable to work with children but referred him to the National College for Teaching and Leadership who convened a professional conduct panel. The panel recommended that the Secretary of State for Education impose a prohibition order, reviewable after two years, for bringing the profession into disrepute.
But, was Mr Zebaida a teacher? If he was not a teacher, did the panel have jurisdiction?
Sections 141B-E of the Education Act 2002 provide the statutory underpinning for the Secretary of State’s regulatory powers over teachers. Section 141A provides that those provisions apply “to a person who is employed or engaged to carry out teaching work at…[schools, sixth form colleges, youth accommodation and childrens’ homes].”
Mr Zebaida did not initially contest the panel’s jurisdiction, accepting at that stage that he had taught in the past. The panel found that it had jurisdiction under the Education Act 2002 and upheld the prohibition order. Mr Zebaida challenged this decision by statutory appeal.
The Administrative Court allowed his appeal. HHJ Moleneaux accepted at  that section 141A could apply in three circumstances to a person:
Both parties had cited the case of Re M (a Minor) (Care Orders)  2 AC 424 i. In this case the House of Lords interpreted section 31 of the Children Act 1989, which granted jurisdiction to the court to make a care order if the child “is suffering or is likely to suffer significant harm.” The House of Lords held that this wording was capable of applying to a child who had already been taken into temporary safe care, so was not suffering or likely to suffer significant harm at that moment, but who had suffered, or been likely to suffer significant harm before they had been in temporary care. Lord Templeman had observed in that case:
“This appeal is an illustration of the tyranny of language and the importance of ascertaining and giving effect to the intentions of parliament by construing a statue in accordance with the spirit rather than by the letter of the Act.”
The Secretary of State had argued that the Education Act 2002 applied to Mr Zebaida, as a contrary interpretation:
“Would allow those with serious allegations against them to seek to escape the potential consequences of their actions, by resigning or by drifting in and out of the profession.”
HHJ Moleneaux applied, what she termed a “common sense and plain reading of section 141A” in outlining the three categories above. In allowing Mr Zebaida’s appeal the judge held that the Secretary of State’s concerns were not made out in his case.
The wording of section 141A, on first reading, does appear to be narrow. HHJ’ Moleneaux’s first and second categories, seems clearly to be within the scope of a broad purposive Re M reading. The basis for including the third category is rather less straightforward. Why would it matter that the person was working as a teacher when the conduct was discovered, but had not been when the incident occurred? The rationale for this third category must be at least, in part, due to an acceptance that certain conduct when it occurs even outside of the work context, is capable of bringing a profession into disrepute. But if that conduct is capable of bringing the profession into disrepute, and that profession has no prior registration requirement for entry, what is the rationale for conferring jurisdiction on the Secretary of State if the person happens to be a teacher when they are found out? Conferring jurisdiction on the Secretary of State to impose sanctions individuals, if when they are found out they are also found to be teaching, could potentially be a disincentive to such a person from teaching in a regular post, if they were constantly watching their back in case they happened to be found out, but it seems to be rather less of a disincentive to a person who drifts in and out of the profession. Such drifting may be uncommon for classic classroom teaching, but may be more likely to occur for specialist one on one teaching, for example those, who, like Mr Zebaida are sessional one on one piano teachers.
In Mr Zebaida’s case, as the DBS had declined to bar him, there is no professional regulatory obstacle to him now holding himself out as a teacher. The practical reality is likely to be that, as his criminal conviction is one of those which would not be filtered from an enhanced DBS check, his prospects of obtaining employment in a school as a regularly employed teacher are likely to be low. However, there is currently no regulatory bar on his engaging in teaching on a self-employed one on one basis, which is precisely the “drifting” which the Secretary of State was concerned to regulate.
This “drifting” scenario is most unlikely to occur in a profession which requires mandatory registration before it can be carried out. Offences, such as that received by Mr Zebaida, tend to be reportable if a person continues in practice, and on registration. However, where a profession does not require registration before a person can hold themselves out, and the regulator’s jurisdiction is confined to those who are currently working within the profession, a regulator can be left without any power over those who drift in and out of working within that profession, irrespective of whether their conduct might bring the profession into disrepute.
Katherine Apps is a barrister practising in regulatory and disciplinary, public, employment and EU law at Littleton. She is a member of Littleton’s disciplinary and regulatory (DRG) group.