AD v Disclosure and Barring Service

The Appellant (‘AD’) appeals the decisions of the Respondent (the Disclosure and Barring Service or ‘DBS’) dated 28 May 2020 and 22 April 2021 to include and retain (not to remove) his name on the Children’s Barred List (‘CBL’) and Adults’ Barred List (“ABL”) pursuant to paragraphs 3, 9 and 18A of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (“the Act”).

The Respondent originally included the Appellant on the Children’s Barred List (‘CBL’) and Adults’ Barred List (‘ABL’) on 28 May 2020 (‘Final Decision Letter’ or ‘original decision’) – see paragraphs 3 and 9 of Schedule 3 to the Act. The Respondent subsequently reviewed this decision on 22 April 2021 and determined that it was not appropriate to remove the Appellant from the CBL or ABL (Review Decision Letter) - see paragraph 18A of Schedule 3 to the Act.

Permission to appeal to the Upper Tribunal was granted by the Judge on 21 September 2022 in respect of the grounds raised by the Appellant in the perfected grounds of appeal.

We held an oral hearing of the appeal at the Rolls Building, London on 27 September 2023. The Appellant was represented by Mr Hill of counsel. The Respondent (the DBS) was represented by Ms Bronia Hartley of counsel. We are grateful to them both for the quality of their written and oral submissions.

The Appellant, AD, is now aged 28 and was 27 at the time of the hearing. At the time of the relevant decisions in May 2020 and April 2021, he was 24 and 25 years old respectively.

In March 2020, in the Crown Court at [N], he was acquitted (unanimously) of alleged offences of a sexual nature in relation to the complainant contrary to provisions of the Sexual Offences Act 2003.

The material events leading to the allegations had occurred three years earlier between April and June 2017. The Appellant had, upon completing his A-levels, obtained employment as a teaching assistant (an ‘Educational Technical Instructor’ or ‘TI’) in the education department of St. A’s Hospital. He began in that role on 21 September 2015 following a satisfactory DBS clearance and at the time was 19 years old (he was 21 years old by the time of the material events).

The Appellant had previously worked for three years (from February 2012 to August 2015) – without incident – as a ‘Ward Host/Domestic’ on a hospital maternity award at [N] General Hospital. His line manager (Senior Housekeeper, Department of Obstetrics and Gynaecology) described him in a reference letter as ‘an exemplary member of staff’ who was spoken of highly by all the midwives and nurses; who worked with ‘great sensitivity to the [new] mothers regarding privacy and courtesy’; who throughout his employment had adhered to all relevant policies and procedures; who would offer to assist on other wards when the department was short-staffed; and who was a ‘loyal, valuable asset’.

The ‘complainant’ in the criminal proceedings was RYH a male inpatient in the mental health facility of St. A’s, who was 13 to 14 years old at the time of the allegations. Although he had made no complaint at the time, he would come to make various allegations.

The DBS no longer places any reliance upon many (and the most serious) of the complainant’s allegations following the evidence and information arising from the criminal trial, and in light of the Appellant’s representations.

On 19 June 2017, the Appellant was suspended from his role; on 8 July 2017, he was arrested. The Appellant was 21 years old at the time of his arrest. He was interviewed under caution and co-operated fully with the police investigation, answering all questions asked of him. He did not seek to suggest that there had been no failings in the performance of his duties at the hospital; indeed, he accepted candidly that he had allowed himself to become overly attached to the complainant, and that he had failed to maintain appropriate professional boundaries with him. He demonstrated some insight. He maintained, however, that he had not committed any criminal offence.

On 11 July 2017, a meeting was convened at St A’s (a Local Authority Designated Officer Joint Evaluation Meeting - ‘DO JEM meeting’) at which the complainant’s allegations were discussed. The notes were disclosed to the Appellant for the first time in connection with the DBS decision in these proceedings. It is clear from them that: (a) the meeting was conducted in the absence of the Appellant (b) the notes do not purport to be verbatim; and (c) the notes, such as they are, contain unattributed and some inaccurate comments and information. These include one note which erroneously recorded that the Appellant had admitted in police interview that he was ‘obsessed’ with the complainant.

On 31 July 2017, the Appellant’s case was referred to the DBS by the local authority which had employed him.

On 6 November 2019, the DBS informed the Appellant that it was ‘minded to’ place him on both the adults’ barred list and the children’s barred list. The Appellant had received an offer to study Medicine in September 2019. The findings made by the DBS in the ‘minded to bar letter’ are not addressed but, following the representations and evidence since made available to the DBS, the early findings have been superseded and are of background interest only.

The DBS invited the Appellant to make any representations he wished; however, in view of the fact that the criminal trial was to be heard in March 2020 – at which the evidence relating to the allegations would be tested (which in turn would inevitably result in the emergence of additional and relevant information and evidence) – the Appellant invited the DBS to allow an extension of time such that the trial would proceed with representations to follow.

The DBS having rejected that invitation on 20 December 2019, the Appellant submitted initial representations on 17 January 2020 renewing the invitation to postpone a decision until the outcome of the trial process, but also making clear (in summary): that a number of the allegations referred to in the ‘minded to bar’ letter were not accepted (and could not be sustained on the balance of probabilities); that although the Appellant accepted certain failings in relation to the performance of his professional duties, his conduct did not amount to ‘relevant conduct’ as defined in paragraph 4 of Schedule 3 of the 2006 Act; and that the transcripts of interview and other documents the DBS had relied upon in making its findings in the ‘minded to bar’ letter were inaccurate.

The letter summarised the ‘circumstances of [the] allegations’ and the Appellant’s response and in particular emphasised his co-operation, insight and the positive steps he had voluntarily taken to understand and address the factors which may have contributed to the material events. The letter further invited attention to relevant mitigating features, including: the Appellant’s young age, lack of maturity, and experience/naivety at the time of the material events, and the poor quality of supervision of the appellant at St A’s.

On 1 May 2020, i.e. following his acquittal in the criminal proceedings, and DBS having made no decision, the Appellant made further representations against inclusion on the Barred Lists. The detailed 15-page letter is not summarised here in detail but in outline it addressed the available evidence and information allegation by allegation, and ultimately invited DBS to reflect that ‘earlier factual findings’ could no longer be sustained on the balance of probabilities in the light of evidence and information that had emerged in the criminal investigation and proceedings. The letter also summarised examples of the complainant’s propensity to make false allegations, particularly of a sexual nature, against staff and other patients. As the letter also made clear, the Appellant was anxious to assist the DBS in any way possible to access any information or material DBS required, or to clarify matters generally. The Appellant offered to obtain a transcript of the evidence of the complainant and/or himself if necessary.

On 28 May 2020, the DBS communicated its ‘final decision’ to include the Appellant on both Barred Lists. The decision expressed DBS to be satisfied on the balance of probabilities that the Appellant had engaged in the following behaviour amounting to ‘relevant conduct’ for the purposes of the Acti.e. ‘conduct which endanger[ed] a child [the complainant] or [wa]s likely to endanger [the complainant]’.

It made the following five findings of ‘relevant conduct’ on the balance of probabilities:

The Appellant had (i) facilitated a meeting between the complainant and discharged

Following the meeting, the Appellant had (i) allowed the complainant to go onto his

The Appellant had (i) prior to 16 June 2017 allowed the complainant to watch

The Appellant had touched the complainant on the thigh, on unspecified dates.

The DBS concluded the Appellant posed a risk of harm both to children and to vulnerable adults. The findings are addressed below under ‘Grounds’. So far as the adult’s barred list was concerned, DBS acknowledged that the Appellant’s behaviour did not involve a vulnerable adult the Appellant had previously worked with vulnerable adults at [N] General Hospital ‘without any apparent issues’. Nonetheless, DBS were ‘satisfied that it is appropriate’ to include him in the list for the following reasons:

The Appellant would have the ‘opportunity to establish close working relationships

‘[C]oncerns remain that [the appellant] might develop similar attachment issues, fail

Finally, the DBS addressed proportionality and concluded that inclusion in the Barred Lists was not a disproportionate interference with the appellant’s rights under Article 8 of the European Convention on Human Rights (‘ECHR’) – the right to private and family life.

Although a barring decision under paragraphs 3 and 9 is ‘final’ of schedule 3 to Act, paragraph 18 also provides that a review may be requested by a person after the minimum barring period (in this case 5 years) has elapsed. Further, paragraph 18A provides that the DBS may review a person’s inclusion in a barred list at any time if that person provides information the DBS did not have at the time of their inclusion in the barred list.

Accordingly, on 2 November 2020, the Appellant made further representations inviting the DBS to conduct a review of his inclusion in the barred lists in light of a report prepared on behalf of the appellant by an independent Forensic Psychosexual Therapist, Ms Appleyard dated 31 August 2020.

As the letter dated 2 November 2020 explains, Ms Appleyard is an independent Forensic Psychosexual Therapist in private practice with responsibility for managing the assessment and treatment of sex offenders. She holds a Post-Graduate Diploma in the Assessment and Treatment of Sex Offenders (Leicester University) and has sixteen years’ experience in the treatment of sex offenders and survivors of sexual abuse.

The Appellant having been acquitted following trial, was notthe subject of any court-imposed requirement to seek any ongoing assistance (e.g. to engage with the Probation Service or to satisfy any requirement attached to a sentence – such that he could not provide the DBS a probation report).

The Appellant nonetheless voluntarily sought to engage with appropriate professionals (his GP; NHS CBT sessions; private therapy sessions): (a) to understand and address any underlying issues that might have contributed to his conduct; and (b) had striven – in Ms Appleyard’s opinion, successfully – to ensure that he developed the necessary skills/coping mechanisms to enable him to deal in future with any similar situation that he might encounter with appropriate professionalism.

In the light of the report’s findings and conclusions, the DBS was invited to reconsider whether it was necessary and proportionate to retain the Appellant on either of the Barred Lists. The report is considered in more detail below.

On 22 April 2021, the DBS informed the Appellant that, having conducted its review, under paragraph 18A, Schedule 3 of the Act, it had decided against the removal of his name from either of the Barred Lists, ‘because of concerns as to the future risk of harm you represent to vulnerable groups’. The review decision in summary observed:

The Appellant ‘demonstrated a need to maintain contact with [the complainant] for

Ultimately, the review decision concluded that the ‘whilst the content of the psychosexual report has been taken into account, the DBS are of the view that there needs to be a sustained period of time to demonstrate an overall modification of behaviour. Presently, an insufficient period of time has passed in order to reassure of a modification of behaviour such as to circumvent the minimum barring period of five years’.

On 17 May 2021, the DBS wrote a further letter confirming the decision; noting that ‘one of the factors considered by DBS was the passage of time since the behaviour in question took place. DBS did not consider that there has been sufficient time without further incident/behaviour so as to remove the need for protective safeguarding mechanism’; and providing details of statutory right of appeal to the Upper Tribunal.

The Appellant is now 28 years old and the material events occurred more than 6 years ago. By the time the minimum 5 year period barring would elapse on 27 May 2025, eight years will have passed since the incidents in 2017 and the Appellant would be 29 years old.

In his Grounds of Appeal (his “Reasons for Appealing” document) enclosed with his notice of appeal, the Appellant provided grounds of appeal drafted his solicitors.

The Appellant submits that the barring decision was based on material mistakes of fact or mistakes of law (the decision was irrational and/or disproportionate which amounts to an error of law).

The Appellant has been granted permission to appeal in respect of his perfected grounds of appeal dated 16 June 2022 (Perfected Grounds of Appeal) which are as follows:

whether the DBS erred in law in finding that the Appellant should continue to

whether the respondent made material errors of fact in its review decision in finding:

The Appellant relied on these three grounds of appeal at the hearing of the appeal before us on 27 September 2023.

The DBS relied on written evidence from witnesses and transcripts of interview contained in the bundle of evidence it filed and served. The witnesses included former colleagues of the Appellant who were employed by the hospital at the relevant time. The Appellant likewise relied upon a bundle of evidence including Ms Appleyard’s reports, witness statement and transcripts of his interviews with the police. He also relied on other evidence he had supplied to the DBS such as character references and the submissions and representations made on his behalf to the DBS by his solicitors prior to his barring. This was the evidence relied upon in making the barring decision and in defending the appeal.

The Appellant did not give evidence during the hearing but we do not draw any inferences against him, the matters of primary fact were largely not in dispute and the questions were primarily ones of evaluative judgments, inferences to be drawn, risk assessment and issues of law. These were dealt with in oral submissions.

The relevant evidence [with paragraph numbers and page numbers in square brackets] is referred to in the discussion section below and we make findings and draw conclusions based upon it.

The full relevant statutory provisions and authorities are set out in the Appendix to this decision. Therefore, we only draw attention to the most relevant law at this stage.

Section 4 of the Act provides relevantly:

The next most relevant statutory provisions to address are paragraphs 9 and 10 of Schedule 3 to the Act on the definition of relevant conduct in respect of vulnerable adults:

Paragraphs 3 and 4 of Schedule 3 to the Act mirror paragraphs 9 and 10 but in relation to children.

A relevant authority to address within the body of the decision is the extent of the jurisdiction of the Upper Tribunal to determine whether the DBS had made mistakes of fact in its decision and its power to make its own findings of fact. This was outlined in PF v Disclosure and Barring Service [2020] UKUT 256 (AAC) at [51]:

The decision on whether it is “appropriate” to bar is neither a question of law nor a question of fact (see section 4(3)), and so is not appealable under section 4(2). Accordingly, a simple difference of opinion as to the issue of appropriateness on the basis of undisputed facts is non-appealable. However, the DBS’s decision as to the appropriateness of barring may include an assessment as to the future risk that an Appellant poses of causing harm to vulnerable and adults.

As regards the assessment of risk, the Court of Appeal in DBS v AB [2021] EWCA Civ 1575 at [43]considered that this was almost exclusively a matter for the DBS and should not be within the Tribunal’s jurisdiction under section 4 of the Act given the Respondent’s expertise in making risk assessments and responsibility as the expert decision-maker in relation to barring:

Only if a risk assessment is made by the DBS in error of fact, eg. based on an incorrect fact, or made in error of law, for example, that a risk assessment relied upon by the DBS is irrational (one that no properly directed decision maker could reasonably have arrived at on the evidence before it), can the barring decision on which it is based be disturbed on appeal.

Mr Hill made detailed submissions on behalf of the Appellant which we consider below.

Ms Hartley made submissions in reply, many of which we have accepted and adopted.

The DBS final decision included conduct which does not amount to ‘relevant conduct’ as it was not conduct which ‘endangered a child’ or was ‘likely to endanger a child, e.g., facilitating a meeting between the complainant and a discharged patient, contravened policy by taking his mobile phone on a visit

First, Mr Hill for the Appellant submitted that, properly analysed, the conduct relied upon by DBS in the final decision does not amount to ‘relevant conduct’, as it is not conduct which ‘endanger[ed] a child [the complainant] or [wa]s likely to endanger [the complainant]’.

By way of illustration (only), he argued that the first two particulars relied upon in the final decision are first, that the appellant had facilitated a meeting between the complainant and a discharged patient on 16 June 2017; and second that the Appellant had contravened policy by taking his mobile phone on the visit.

He argued that such conduct is not ‘relevant conduct’. Without enumerating every example, he submitted that the DBS’s Final (original) decision is generally flawed in its identification of relevant conduct. This amounts to a mistake of law.

We reject these submissions.

We are satisfied that the five findings that the DBS relied upon in its Final Decision (set out at paragraph xx above) did constitute relevant conduct as defined under the Act (conduct that endangered a child’ or was ‘likely to endanger a child) and there was no material error of law. The two particulars of conduct (or sub-findings) challenged by the Appellant (facilitating a meeting with a discharged patient and taking a mobile phone on a visit) were capable of amounting to relevant conduct which was likely to endanger the children under the Appellant’s care. These instances risked emotional or psychological harm being caused to the complainant or other children (even if they did not in fact do so). In any event, to the extent that some particulars (or sub-findings) of the facts found may not have constituted relevant conduct, these were not material to the five overarching findings (which are not essentially challenged), so any error would not be material.

The allegations found proved by the Respondent must be read as a whole; taking elements of the same out of context does not enable the Appellant to establish that his behaviour overall did not amount to relevant conduct.

We are satisfied that there was no mistake of law in the DBS conclusion that the Appellant committed relevant conduct in the five overarching ways found relying upon the following facts, matters and evidence.

The findings of relevant conduct concern RYH who was a vulnerable child (aged 13-14 at the time) under the care of the Appellant. It is important to note the evidence before the DBS that the complainant [RYH] has had a troubled upbringing, he was placed in the care of the Local Authority when he was 7 and his mother committed suicide when [RYH] was 8. [RYH] is diagnosed with attention deficit disorder, attachment disorders and autistic spectrum disorder. He has previously been in residential establishments and displays difficult and disturbing behaviours including violence, self-harm and sexual assault. He can make close attachments to staff and staff attach to him easily due to his endearing nature. Therefore, clear boundaries are needed with anyone who works with him’ (Record of DO JEM Meeting – [p.66 of the bundle]).

The DBS properly considered the reliability and credibility of RYH as a witness (given the most serious and sexual allegations he made were not found prove to the criminal standard in a jury trial) but also the admissions that the Appellant himself made in interview with the police.

There is no error of law in the following findings, relied upon by the DBS against the Appellant, that he endangered RYH or was likely to endanger him by causing him or risk causing him emotional, psychological or physical harm.

The DBS were entitled to rely on its findings that the Appellant:

did not maintain clear boundaries with RYH;

permitted the development of an inappropriate attachment as between him and RYH;

told RYH about his own self-harming behaviour;

These findings unmistakeably constituted relevant conduct. The DBS weas entitled to rely on the following sources of evidence as to relevant conduct – conduct which endangered or likely to endanger RYH by causing him emotional, psychological or physical harm or risk of harm caused to RYH:

The Appellant has not established any or any material error of law in this regard.

Second, Mr Hill argues that even if the conduct identified by the respondent does amount to ‘relevant conduct’, the DBS’s final decision contains factual findings which were not reasonably open to DBS (to the civil standard, alternatively at all) in the light of the available information/evidence. This is argued to be either a mistake of law or fact.

By way of example:

We reject these submissions.

We are satisfied that the following factual findings were reasonably open to the DBS on the evidence and the Appellant has not established any or any material mistake of law or fact having regard to the following facts, matters and evidence.

The evidence available to the DBS included the following:

The evidence available to the DBS included:

The evidence available to the DBS included:

‘Q: “He’d mentioned the touching on the thigh…”

The review decision contains findings of fact beyond those contained in the final decision and findings that were not reasonably open to the DBS (eg. jeopardised the complainant’s treatment and exposed him to ‘further significant emotional and psychological harm’; the Appellant’s behaviour was driven by admitted ‘unhealthy level of caring’/‘obsession’; colleagues raised concerns regarding over-attachment to another child, as a result of which he received 1:1 supervision)

Mr Hill argues that insofar as the review decision of April 2021 contains findings of fact beyond those contained in the final decision. Mr Hill also contends that the original decision also contains findings that were not reasonably open to DBS:

He submits that the original decision concludes that the appellant’s conduct ‘jeopardised [the complainant’s] treatment and exposed the child to further significant emotional and psychological harm.’ No basis in evidence/fact is identified to explain that finding, which is ex facie inconsistent with the finding in the final decision that ‘the case information indicates that it did cause [the complainant] some degree of emotional harm’. The caseinformation is not further particularised, and it is not possible further to address thefinding of harm (whether some, or significant) in these grounds. He argued that thereasons are inadequate.

Mr Hill contends that the original decision observes that whilst the Appellant’s behaviour may not have been sexually motivated, the DBS ‘still have concerns that [the appellant’s] behaviour was driven by what [he] admitted was an “unhealthy level of caring” and obsession’ with the complainant. This appears to have been taken from the DO JEM meeting notes and does not accurately state the effect of the Appellant’s answers in police interview: first, neither the prosecution produced transcript nor the transcript produced by the Appellant’s solicitors discloses any admission of obsession, as suggested; and second, the reference to an ‘unhealthy level of caring’ was in fact introduced by the interviewing officer and acknowledged by the appellant as unhealthy for the appellant (in the sense that it caused the appellant ‘a lot of upset at times’). In similar vein, the decision refers to a ‘proclivity’ which was unjustified.

He relies on the fact that the original decision observes: ‘Your colleagues had previously raised concerns about your over-attachment to another boy in your case and as a result of these concerns you had received 1:1 supervision with a St As psychologist. Despite the advice that you received from colleagues about maintaining appropriate boundaries however you chose to bend the rules because you felt that you knew what was in [the complainant’s] best interests.’ In fact, the supervision the Appellant received followed from his discovery of the complainant with a ligature on 20 March 2017. The Appellant requested supervision following the incident, which did not relate to any concerns about another child.

We reject these submissions.

We are satisfied that the Appellant has not established any or any material mistake of fact or law and the DBS was reasonably entitled to make the following findings having regard to the following facts, matters and evidence:

The evidence available to the DBS included:

When read holistically, it is clear that the review decision letter is talking about exposing a vulnerable child to further significant emotional and psychological harm up and over the significant emotional and psychological harm already experienced by them as a result of past life experiences. In any event, semantic differences between the final decision letter and review decision letter (whether the harm was categorised as significant or not) do not enable the Appellant to establish any material error of fact.

The evidence available to the DBS included:

‘ “…I do genuinely care for him, I still do”.

‘Q: “What regrets have you got?”

The Appellant did admit to an unhealthy level of caring for RYH and by reference to the foregoing, it is clear that the Appellant was preoccupied by [RYH], impacting his behaviour towards him. Again, semantics do not enable the Appellant to establish a material mistake of fact or law in this regard.

The evidence available to the DBS included:

Fourth, Mr Hill submits that in the light of Ms Appleyard’s primary finding in her report, which is not disputed, the fact that the Appellant has continued voluntarily to engage with therapy is not a matter that could or reasonably should have been relied upon as consideration supporting his continuing inclusion in the Barred Lists: there is no sound basis to consider that the Appellant’s self-awareness is underdeveloped, and the fact that the Appellant has striven conscientiously to continue to take all possible steps to address a variety of matters including the impact of the police investigation upon him cannot fairly be inverted in the way the decision has done.

Mr Hill also submits that the review decision, as communicated, concludes that although (a) Ms Appleyard’s report ‘identifies that you have no further treatment needs’, ‘you continue to engage with therapy to develop your self-awareness; a lack of which was a contributory factor to the conduct demonstrated towards [the complainant’].

Mr Hill argues that the DBS has acted irrationally by holding against the Appellant the positive step that he took voluntarily to undergo therapy and develop and reduce any risk he posed. It was Ms Appleyard’s report and the therapy he undertook that confirm that the Appellant has no further treatment needs in relation to inappropriate or unprofessional behaviour and fully addressed the issues which had given rise to this behaviour.

In order to address this submission, we need to consider the Appleyard report in detail together with the manner in which it was considered by the DBS in its review decision in April 2021.

Ms Appleyard’s report, dated 31 August 2020, was produced following several hours of interviews/expert assessment of the Appellant, concluded inter alia that:

Ms Appleyard’s expert opinion therefore was that the DBS’s conclusion was ‘unwarranted’- that there was ‘no indication’ that the Appellant had ‘fully addressed the issues which drove his behaviour or developed the necessary skills which would enable him to deal with similar situations in a more responsible and professional manner’ Appleyard, [104]. She also concluded that the Appellant did not have ‘treatment needs in relation to his unprofessional behaviour’ disclosed by the material events. Appleyard, [105] and there were not ‘situations or events that would raise the risk of [the appellant] acting inappropriately or offending either sexually or generally in the future.’ Appleyard, [107].

The relevant paragraphs from the report’s conclusion, [102]-[108], state in full:

How Risk Might Change

Situations or events that might reduce risk.

Situations or events that might raise risk.

At the point of this assessment I do not consider that there are situations or events that would raise the risk of AD acting inappropriately or offending either sexually or generally in the future.

It is my opinion that AD is likely to suffer psychologically from the impact of being included on the DBS Barring List and this may lead to experiencing employment difficulties and financial hardship but I do not consider this would increase his risk of inappropriate behaviour or offending.

The DBS, before communicating its review decision dated 22 April 2021, addressed Ms Appleyard’s report in its internal review document dated 16 March 2021 [pp.314-319] in the following terms:

The question that has most concerned us is whether the DBS properly and rationally considered Ms Appleyard’s report and gave sufficient and rational reasons for distinguishing it as part of its review decision.

We have ultimately, and by a fine margin, come to the conclusion that there was no material mistake of fact or law by the DBS in its consideration of Miss Appleyard’s report within its review decision.

We accept Mr Hill’s point that the DBS, in its review decision, could not reasonably rely on the fact that the Appellant had engaged in therapy against him when forming a view as to the future risk of harm he presented to children or vulnerable adults. It would be irrational to use against the Appellant his voluntary engagement in therapy when this should be to his credit – his treatment reduced the future risk he posed. However, that part of the DBS’s reasoning needs to be read in context of the later part of the sentence that says that ‘you continue to engage with therapy to develop your self-awareness; a lack of which was a contributory factor to the conduct demonstrated towards [the complainant]’. That was not an irrational conclusion.

The wording used by the DBS also needs to be read in the context of all the reasons that the DBS relies upon in its review for distinguishing the Appleyard report as set out above. Ultimately, the DBS was entitled to form a view that the Appellant presented a greater risk of (emotional or psychological) harm (through inappropriate or unboundaried attachment or behaviour) to vulnerable adults or children than Ms Appleyard had concluded in her report and this was such as to make it appropriate and proportionate not to remove him from the Barred lists.

We have had regard to the following facts, matters and evidence in arriving at the conclusion that the DBS did not err in law or fact in considering and addressing Ms Appleyard’s report:

Ms Appleyard’s report does not state that the Appellant has ‘no further treatment needs’ generally. It states that in Ms Appleyard’s assessment, the Appellant had ‘low treatment needs’ and no treatment needs ‘in relation to his unprofessional behaviour’ (Forensic Psychosexual Report (Victoria Appleyard – [103] & [105]). For completeness, Ms Appleyard identifies that the Appellant’s relationship capacity and low mood were areas that still needed to be addressed ([103]).

Further, a lack of treatment needs in relation to unprofessional behaviour is not the same thing as presenting a lack of risk of the same (some types of behaviour may be untreatable for example or one cannot engage in useful treatment). There is no determination that the Appellant presented no or a low risk of inappropriate, problematic or unprofessional behaviour. The closest the report comes to this is at [104] which implies the Appellant has fully addressed the issues that gave rise to the previous inappropriate behaviour or at [107] where there are no situations or events that would raise the risk. Again, that is not a clear statement regarding a lack of future risk of the same.

At no point does Ms Appleyard state that there is no possibility of future harm or problematic behaviour on the part of the Appellant. Whilst might one expect no reputable expert to say that a person presents no future risk of inappropriate behaviour, she does not go as far as to say that the risk posed by the Appellant is very low so as to be negligible or has reduced to that of the ‘general population’, or reduced to the same as someone without any history of offending or inappropriate behaviour.

The review decision letter is correct when it says that Ms Appleyard’s report highlighted that the Appellant was ‘continu[ing] to engage in therapy to develop his self-awareness’ ([102]). Moreover, Ms Appleyard opines that this therapy ‘will reduce the possibility of further harm’ ([102]) and ‘should reduce his risk of problematic behaviour’ ([83]).

Most of the assessment tools that Appleyard applied to the Appellant concerned sexual behaviour or offences rather than emotional attachment or inappropriate behaviour – albeit that she did also express an expert opinion on his risk of the latter. The Appellant is identified at low risk in the report at [86]-[93] – but this primarily concerns sexual offending rather than low risk of inappropriate or unprofessional behaviour. It also refers to category 1 on the risk scale (the lowest risk) but then the narrative description equates to category 2 – which is still a low risk but not the lowest.

It is clear from the review decision letter that consideration has been given by the DBS to Ms Appleyard’s report – see the underlined passages highlighted above. After all it was this report that prompted the paragraph 18A review in the first place.

The DBS considered the Appleyard report as against a full range of evidence it had available to it and gave sufficient reasons for not accepting that the report’s conclusions meant that the Appellant presented an acceptably low risk of committing further inappropriate behaviour (relevant conduct). The DBS ultimately formed the view that:

The DBS was reasonably entitled to form the view that it did in the sense that it was within a range of reasonable evaluations that a decision maker could make. Even if we may have come to a different conclusion, that would not give rise to any error of law in the DBS’s approach.

Therefore, even if the DBS maybe should not have relied on the Appellant’s ongoing therapy against him any error would not be material.

We have also taken into account the fact that the DBS is not required to accept the findings of any expert report or opinion relied on by a barred person – it is entitled to disagree with it so long as it gives sufficient and reasonable reasons for its conclusion. The DBS does not have to instruct its own expert in response to such a report. It does not have to assess risk by means of clinical evaluation tools (assessments with percentages or categories of risk) or by reliance on experts such as psychologists or probation officers. It is deemed to have institutional expertise on the future risk posed by an individual and appropriateness when making its barring decision.

Therefore, in coming to our conclusion, we have given appropriate weight to the decision of an expert body charged by statute with the task of evaluating risk (see DBS v AB and other authorities). The Appellant has not established any or any material mistake of fact or law in disagreeing with Ms Appleyard’s assessment of the risk of harmful behaviour that AD posed. While it might have been preferable if the DBS had addressed the expert report in more detail in its review decision, engaged more extensively and given fuller reasons for distinguishing it, the reasons it relied upon were rational and sufficient.

We are therefore satisfied on balance, that the DBS gave sufficient and rational reasons for distinguishing the Appleyard report and finding that the Appellant posed an unacceptable risk of committing further relevant conduct at that time (in 2021). The DBS was entitled to disagree with the expert opinion of Ms Appleyard to the extent it presented any conclusive view on the low risk of the Appellant behaving inappropriately or unprofessionally. Furthermore, the fact that Ms Appleyard concluded that ‘AD does not have treatment needs in relation to his unprofessional behaviour’ (at [105]) or that he had addressed the issues that gave rise to such behaviour (at [104] does not mean, even on her view, that he presents no or very little or acceptably low risk of committing such behaviour in the future.

There was no material mistake of fact or law at the time of the review decision in the DBS consideration of the Appleyard report.

Two and a half years have now passed since the review decision. Our task in this appeal was not to consider whether the Appellant should have been removed from the list at the time of the hearing in September 2023. Our jurisdiction was only to consider the appeal in relation to the decision and review decision in May 2020 and April 2021 and decide whether there were mistakes of fact or law therein.

Nonetheless, for the purposes of this appeal, the Appellant presented an Addendum report from Ms Appleyard dated November 2022 further to her original report. It was based on 18 hours of further contact between her and AD between 2020 and 2022 and prepared at a time when AD was 27 years old.

Relevant paragraphs include:

AD has persevered to re-engage in life and trusts that he can form friendships and work with people without being at risk of false allegations being made against him.

AD has hugely benefitted from “coming out” and finding a group of people who are

Review decision that an insufficient period of time has passed for DBS to be assured

Fifth, Mr Hill submits that there has been an error of law because the review decision concludes that: ‘DBS are of the view that there needs to be a sustained period of time to demonstrate an overall modification of behaviour. Presently, an insufficient period of time has passed in order to reassure of a modification of behaviour such as to circumvent the minimum barring period of five years.’ It is submitted that whilst thereview decision purports to have taken into consideration Ms Appleyard’s report in relation to ‘modification of behaviour’, the conclusion that an ‘insufficient period of time has passed in order to reassure of a modification of behaviour’ was not a conclusion reasonably open toDBS in the face of Ms Appleyard’s report, which provides the necessary reassurance as to theappellant’s behaviour.

We have addressed and rejected this submission in relation to Ms Appleyard’s report as of 2021 for the reasons given above and in relation to the passage of time generally. In essence, we have decided that there was no mistake of law or fact in this assessment.

Likewise, we have decided that there was no mistake of law or fact in the conclusion that there had been an insufficient passage time since the relevant conduct. The DBS was entitled to come to this view on risk based on the original relevant conduct as found and the passage of time since the original decision. By the time of the review in 2021 it was only 4 years after the 2017 relevant conduct and one year after the original barring decision and the Appellant was only aged 25 (24 years old at time of decision).

Concluding that insufficient time had passed was a rational decision open to the DBS at the time of the original decision in May 2020 (when only three years had passed since the relevant conduct and the Appellant remained 24 years old) and at the time of the Review decision in April 2021 (when he was 25 years old). While the DBS must take into account the specific facts and individual circumstances relating to the Appellant, which it did, it was also entitled to take into account the minimum barring period of 5 years when making this assessment – it was not an irrelevant matter.

There was no error of law or fact on the part of the DBS in its original decision or review decision.

However, that is not to say that the same decision - that insufficient time had passed - would necessarily be rational if considering a review conducted following our decision in November 2023 or in May 2025 when the minimum barring period expires. We have addressed these matters above.

Neither the final decision nor the review decision take into consideration the Appellant’s positive conduct in relation to other children

Sixth, Mr Hill argued that neither the original decision nor the review decision takes into consideration the available positive evidence of the Appellant’s conduct in relation to other children. The witness statements of Rachel Wills, Dale Johnson, Stuart Maddison, Simon Haywood, Alan Dawson, Dawn Parfitt contain highly relevant material but have not been addressed at all.

We are not satisfied that this gives rise to any mistake of fact or law in the original decision or the review decision. The Respondent’s original and review decisions concern the Appellant’s behaviour in relation to RYH. The Appellant’s positive conduct in relation to other children does not nullify his conduct in relation to RYH. Any omission to reference the witness statements detailing the Appellant’s interactions with other children does not amount to an error of law in the case of a decision based on his inappropriate preoccupation with one particular child.

There was no mistake of law in relation to this.

Mr Hill contends that DBS’ decision was disproportionate; it failed, objectively, to strike a fair balance between the between the rights of the Appellant and the interests of the community. The Appellant was at the time of the material events a young and inexperienced teaching assistant who had assumed responsibilities which were beyond his training, his maturity, and for which he received very limited supervision. He cared and felt empathy and compassion for the complainant and became too attached. However, in assessing that conduct, Ms Appleyard has observed that given the Appellant’s age, it would be ‘ill-conceived’ to look at the Appellant’s risk assessment only in an adult context. There is no evidence that his behaviour is entrenched, and indeed there is evidence that he has previously worked with other children (see the character references) and with vulnerable adults (for a period of three years), without incident (and indeed his conduct and contribution has been described as exemplary).

Mr Hill relies on the fact that following the Appellant’s suspension and arrest in 2017 and in the four years that passed (at the time of the review), he has engaged fully and openly with professionals, and the police, and has demonstrated considerable insight. Even following his acquittal, his determination to ensure that there is no prospect of a repeat of his behaviour has been reflected in his continuation of therapy. The expert opinion of Ms Appleyard is that he presents a low risk of sexual (or any) offending (Appleyard, [91]); that he does not have ‘treatment needs in relation to his unprofessional behaviour’ (Appleyard, [105]).disclosed by the material events; and that there were not ‘situations or events that would raise the risk of [the appellant] acting inappropriately or offending either sexually or generally in the future’ (Appleyard, [107]).

He noted that the minimum barring period for a person of the Appellant’s age is 5 years. In this case, the material events occurred in 2017. The final decision was made only in 2020, three years later and only following the appellant’s acquittal. The minimum period would therefore elapse in 2025 (27 May 2025), eight years after the allegations and at a time that the Appellant would be 29 years old. In all the circumstances, he submitted that the necessary reassurance as to his behaviour is available to DBS and that his continued inclusion is not proportionate.

Against that backdrop, Mr Hill also submits that it was not reasonably open to DBS to retain the appellant on the Children’s Barred List, that its review decision was flawed by its failure to take into account (or attach adequate weight to) relevant considerations, and in any event that continuing inclusion in the list was disproportionate in all the circumstances of the case. Therefore, the Tribunal should find that there was a mistake of law in the decision to retain the Appellant on the CBL.

We reject the submissions.

We are not satisfied that the decision and review decision to include and retain the Appellant on the lists were disproportionate nor irrational, therefore there was no mistake of law in them. This is for the reasons we have already set out above – the DBS’s decision that there was a continuing and unacceptable risk as of 2020 and 2021 were rational and there was no mistake of fact nor law in them.

In light of this risk assessment, and the DBS continuing statutory duty and objective to protect vulnerable groups from harm, it follows that the decision to include the Appellant on the barred lists was not disproportionate at the time of the review decision. Per Lord Hoffman at [16] in Belfast City Council v Miss Behavin’ Limited (Northern Ireland) [2007] UKHL 19 ‘[i]f [a] local authority exercises [a] power rationally and in accordance with the purposes of the statute, it would require very unusual facts for it to amount to a disproportionate restriction on Convention rights’. We accept that there was an interference with the Applicant’s Article 8 rights and a restriction on his ability to gain employment in regulated activity but this interference was properly considered by the DBS in its original and review decisions and the interference was not disproportionate.

In its barring decision process document at the time of the original decision the DBS properly concluded:

At the time of the decision and review decision in 2020 and 2021, the DBS was entitled not to be yet sufficiently assured that the Appellant no longer posed a risk to children or vulnerable adults. The DBS was required to strike a balance between the rights of the individual and the interests of the community. It did so lawfully. It cannot be said that the Respondent’s decision to retain the Appellant’s name in the CBL/ABL was disproportionate, nor irrational. There was no mistake of law in this regard.

As is noted above, that does not mean, that it would be proportionate to retain the Appellant on the list following any review conducted following this decision or at the expiration of the minimum barring period in March 2025.

Ground 1 is dismissed for all the reasons given above - there were no material mistakes of law in the DBS decisions to include and retain the Appellant on the CBL in 2020 and 2021.

Review decision failed to take into consideration the fact that the Appellant was employed in regulated activity at [N] General Hospital for over three years without issue

Mr Hill noted that the DBS review decision concluded that: ‘The unhealthy attachment demonstrated towards a 14 year old boy and failure to adhere to correct procedures in management of this child remains entirely transferrable to regulated activity with vulnerable adults. You could become emotionally dependent and/or attached to a vulnerable adult of any age and/or vulnerability for your own gratification which could be harmful to the person in your care should you be allowed to re-enter regulated activity.’

First, he submitted that the review decision failed to take into consideration the material fact that for a period of more than three years, the Appellant had been employed at [N] General Hospital in regulated activity with vulnerable adults and that there had been no issue of the kind DBS refers to. Insofar as the DBS may place reliance on the final decision letter, which noted that the Appellant’s behaviour did not involve a vulnerable adult and the appellant had previously worked with vulnerable adults ‘without any apparent issues’, he submitted that neither the final decision nor the review decision took into consideration (or if it did, which is not evident, attached due weight) to the positive significance of the available evidence/information of the appellant’s record; this was significant evidence not least because there was no other evidence of the appellant’s conduct vis-à-vis vulnerable adults.

Mr Hill argued that the true position was not merely that there were no ‘apparent issues’ (per DBS’ decision) but that the Appellant was regarded as ‘an exemplary member of staff’ who was spoken of highly by all the midwives and nurses; who worked with ‘great sensitivity to the [new] mothers regarding privacy and courtesy’; who throughout his employment over more than three years had adhered to all relevant policies and procedures; who would offer to assist on other wards when the department was short-staffed; and who was a ‘loyal, valuable asset’. He submitted that was highly relevant to the assessment of the Appellant, and of any risk he presented.

We reject the submissions.

The paragraph 18A, Schedule 3 review was conducted following provision of ‘new information’ in the form of the report of Ms Appleyard. The question for the review was whether the DBS was satisfied in light of this new information that it was no longer appropriate to include the Appellant in either list.

The Appellant’s employment at [N] General Hospital was taken into consideration at the time of the Respondent’s original decision (pp. [170] and [302]), however the Respondent was entitled to balance this against the transferability of its concerns regarding the Appellant’s ability to maintain appropriate relationships with individuals with whom he may feel an affinity to regulated activity with vulnerable adults (who could be as young as 18).

In the circumstances the Appellant has not established any mistake of law in this regard.

The review decision failed to articulate any or any proper or cogent reasoned basis for its conclusion that the Appellant presented an enduring risk to vulnerable adults

Second, Mr Hill argued that the review decision failed to articulate any proper or cogent reasoned basis for its conclusion that the Appellant presented an enduring risk to vulnerable adults.

We reject the submission.

The DBS did articulate cogent reasons for the Appellant’s inclusion in the ABL in its review decision letter: ‘…the emotional attachment and dependence you developed on very vulnerable children whilst employed at St A’s Healthcare, more so the “unhealthy” interest in 14 year old RYH and the proclivity to become obsessed with and emotionally dependent upon vulnerable children, could be repeated in regulated activity with either vulnerable group…The unhealthy attachment demonstrated towards a 14 year old boy and failure to adhere to correct procedures in management of this child remains entirely transferable to regulated activity with vulnerable adults’ (Review decision letter – pp. [180]; [181]).

Moreover, the Respondent had already articulated cogent reasons for the Appellant’s inclusion in the ABL in its original decision:

In the circumstances the Appellant has not established a mistake of law in this respect.

Significance attached in the review decision to the Appellant’s failure to adhere to correct procedures failed to consider/give due weight to his time at [N] General Hospital, the fact that he has proactively sought help, demonstration of appropriate insight and increased maturity

Third, Mr Hill contended that insofar as the review decision attached significance to a ‘failure to adhere to correct procedures’ the review decision failed to consider (or attach due weight) to the evidence – in addition to his positive record of three years of adherence to correct procedures and exemplary conduct in working with vulnerable adults: see above – that the Appellant had, since the material events in 2017, proactively sought appropriate help, demonstrated appropriate insight, and had matured. Whatever might have been said of him as a 19 or 20 year old emerging adult, there was every reason to consider that – following an internal disciplinary process, criminal trial, and barring process in which he acted responsibly and conscientiously as he faced up to the consequences of these events – the Appellant was now acutely aware of the need to maintain appropriate professional boundaries.

We reject this submission.

Given that the DBS had regard to each and every one of the matters cited in its original and review decisions, it properly undertook the balancing exercise undertaken by the Respondent when determining the appropriateness of the Appellant’s inclusion in the CBL/ABL as of 2021, which is of course a matter for the DBS alone and accordingly outside the scope of this appeal.

In the circumstances the Appellant has not established a mistake of law in this respect.

The conclusion in the review decision regarding transferability to vulnerable adults fails to consider the ‘particular circumstances’ of the close attachment between the Appellant and complainant in 2017 or the fact that he has not development such attachments to vulnerable adults or other children

Fourth, Mr Hill contended that although the review decision concludes that the attachment the Appellant demonstrated towards the complainant remains ‘entirely transferrable’ to adults, the review decision fails to consider (or attach due weight to) the particular circumstances of the close attachment that had developed between the Appellant and the complainant in 2017; or the fact that such closeness had not developed in relation to the vulnerable adults or other children with whom the Appellant has worked. There was reason to consider that the situation was highly fact specific, and that the closeness of the attachment arose as a result of: the complainant seeking a parent/older brother figure; the proximity in age (‘closeness in age to the patients’, per Ms Appleyard) and common interests; and the particular circumstances which pertained to the appellant at the time as addressed in Ms Appleyard’s report. A senior member of staff at St A’s, GH, described the complainant as one of the most difficult cases she had ever seen.

We reject the submission.

There is nothing ‘particular’ about developing a close attachment to a person with whom you feel an affinity but with whom it is nevertheless necessary to maintain clear professional boundaries.

As regards transferability to vulnerable adults, we have addressed this above. As regards other children, we have also addressed this above.

In the circumstances the Appellant has not established a mistake of law in this respect.

Even if the Appellant’s continued inclusion on the CBL is ‘justified’, his inclusion on the ABL is not on the basis that there is no relevant/enduring risk to vulnerable adults

Fifth, Mr Hill submitted that even if the DBS decision in relation to the Appellant’s continued inclusion in the Children’s Barred List were justified (which, is not accepted), there was insufficient to justify the additional step of including the Appellant also in the Adults’ Barred List. Any order or decision must be tailored to meet the harm or risk that the individual represents, and in the present case it is submitted there is no relevant and no enduring risk vis-à-vis vulnerable adults.

We reject this submission. We have addressed ‘relevant’ risk and ‘enduring’ risk, above. There was no mistake of law in this regard.

Finally, Mr Hill argued that his submissions made as to proportionality in relation to the CBL, considered above, apply with additional force – given the absence of any equivalent conduct in relation to vulnerable adults to weigh in the scales – to the Appellant’s continued inclusion in the Adult Barred List. Against that backdrop, he submits that it was not reasonably open to DBS to retain the Appellant on the Adult’s Barred List, that its decision was flawed by its failure to take into account (or attach adequate weight to) relevant considerations, and in any event that continuing inclusion in the list was disproportionate in all the circumstances of the case, and the Appellant. Therefore, the Tribunal should find that there was a mistake of law in the decision to retain the Appellant on the ABL.

We reject this submission. We have addressed proportionality of inclusion on both lists above and found there to be no mistake of law as of the time of the original decision nor review decision in 2020 and 2021.

We dismiss Ground 2 for all the reasons given above – there were no material mistakes of law in the DBS decisions to include and retain the Appellant on the ABL in 2020 and 2021.

Mr Hill submitted that inter alia the following material errors of fact are contained in the relevant decisions:

that the Appellant had ‘admitted’ an ‘unhealthy’ interest and ‘obsession’ in the complainant; that the appellant had ‘developed’ a ‘dependence’ on ‘very vulnerable children’;

that the Appellant had a ‘proclivity to become obsessed with and emotionally dependent upon vulnerable children’;

that the Appellant ‘jeopardised [the complainant’s] treatment and exposed [him] to further significant emotional and psychological harm’; and

that the Appellant acted ‘out of fear that [his] contact with the [complainant] would be stopped’.

He submitted that there is no proper basis in evidence for those factual assertions/findings and there were mistakes of fact in the DBS’s findings / reasons.

‘Admitted’ an’ unhealthy interest’ in and ‘obsession’ with the complainant

We have addressed this finding above in relation to an error of law and find no mistake of fact in this regard.

Developed a ‘dependence’ on ‘very vulnerable children’

The Appellant cannot establish any or any material mistake in this finding having regard to the following facts, matters and evidence:

‘97. Patients can be very emotive and being that many, such as RYH have had difficult and abusive early years, they have attachment difficulties and continue to search for that one person who can act as a “good parent” to them (caring, supportive, providing, gifting and setting boundaries). I believe that RYH’s behaviour felt appealing to [AD] and he was complimented that he could be that “good parent” to RYH’ (Forensic Psychosexual Assessment (Victoria Appleyard) – [para 97]).

b) ‘101… [AD] gained emotional gratification from his interactions with RYH without considering the detrimental effects on him or others’ (Forensic Psychosexual Assessment (Victoria Appleyard) – [para 101]).

In so far as the Appellant takes issue with the term ‘dependence’, this is a matter of semantics which is immaterial to the Respondent’s overall decision.

‘Jeopardised [the complaint’s] treatment and exposed [him] to further significant

We have addressed this finding above in relation to an error of law and find no mistake of fact in this regard.

Acted ‘out of fear that [his] contact with [the complaint] would be stopped’

The Appellant’s precise motivation(s) for not reporting significant safeguarding incidents is not material to the Respondent’s overall decision and accordingly the Appellant has not established a material mistake of fact in this regard.

We dismiss Ground 3 – there were no material mistakes of fact in the DBS original decision and review decision to include and retain the Appellant on the CBL and ABL in 2020 and 2021.

We are satisfied that the DBS did not make mistakes in fact or law in its original decision and review decisions of 2020 and 2021 to include and retain the Appellant on the ABL and CBL.

However, we draw the DBS’s attention to the paragraphs 108-117 above concerning what matters should be considered on any future review as to whether the Appellant should be removed from the lists and our view as to the outcome.

For the reasons set out above, the Appellant’s appeal should be dismissed.

We conclude for the purposes of section 4(5) of the Act that there were no mistakes of law in the DBS Decisions to include and not to remove the Appellant on the CBL & ABL. There were no material mistakes of fact upon which the Decisions were based.

The Decisions of the DBS in 2020 and 2021 to include and retain the Appellant on the CBL and ABL are confirmed.