IE v Disclosure and Barring Service

The Appellant (IE) appeals the decision of 18 August 2020 of the Respondent (the Disclosure and Barring Service or ‘DBS’) to include his name in the Adults’ Barred List (“ABL”) pursuant to paragraph 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (“the Act”).

Permission to appeal was granted by the Upper Tribunal Judge following an oral hearing on 12 July 2022 in respect of four grounds raised by the Appellant in the notice of appeal.

We held an oral hearing of the appeal in Field House, London on 15 May 2023. The Appellant attended and was cross examined. He was represented by Ms Price of counsel. The Respondent DBS was represented by Mr Lewis of counsel. We are grateful to them both for the quality of their written and oral submissions.

References in square brackets ([]) are references to page numbers of the hearing bundle which we considered in full.

The Appellant worked, from early March 2018 as a “senior support worker”, at a home which provided residential supported living services to people with learning disabilities and other complex issues. It is accepted that this was regulated activity.

The Appellant’s duties included the provision of care to a number of service users residing at the Home, including one particular service user (“SS”). SS had a learning disability and bipolar affective disorder; and a history of abuse, including sexual abuse, as a child.

On 03 February 2020, the Appellant was suspended ([63]) pending completion of an investigation by his employer into alleged misconduct at work, relating to the way the Appellant dealt with SS and, in some more limited respects, other residents at the Home.

As part of the employer’s investigation, a number of IE’s colleagues (“the Colleagues”) produced statements and/or had discussions recorded (“the Statements”), setting out their accounts regarding the alleged misconduct.

On 12 February 2020, a formal referral was made to DBS, by the Home, about the alleged misconduct [32]. At or around the same time, the police were also notified by the Home, of the alleged misconduct. The Home also notified the Care Quality Commission and the local authority [35]-[37]. No other authority has taken any action in relation to the Appellant’s suitability to work with vulnerable adults in light of the allegations (or at all).

On 31 March 2020, DBS sent the Appellant a “Minded to Bar Letter” ([19]), setting out the allegations being considered by DBS, various information relating to the same and to the procedure being undertaken; and providing IE with the usual opportunity to make written representations and/or provide information or evidence to challenge DBS’s putative findings and/or to explain why he ought not to be included in the List. It was made clear to IE that, should he wish to rely on additional documentation from a third party, it was his responsibility to provide it.

It would appear that IE was interviewed by the police, in relation to the same or similar matters, in May 2020 ([84]), after which CPS appear to have spent some considering whether or not to bring criminal proceedings against IE.

On 17 July 2020, written representations were duly provided to DBS, on behalf of IE, by his solicitor (“the Representations”) ([67-81]). Attached to the same, were a number of other documents, including three “character references” (“the Character References”) ([88-91]).

The DBS then made the barring decision on 18 August 2020 (‘the Decision’). The Decision is to be read in conjunction with the “Barring Decision Process” document (“the Rationale Document”) [(132]).

It would appear that the police/CPS, ultimately, elected not to take any further action against IE regarding any criminal liability ([128]).

The Appellant’s Application and Notice of Appeal, setting out IE’s reasons for appealing the Decision, was dated 18.11.20, having been prepared by a solicitor on IE’s behalf ([1]). It appears to have been stamped as received by the Upper Tribunal (‘UT’) on 15.03.21; but is understood to have been emailed to the UT on 18.11.20 by IE’s representatives.

The UT issued a first set of directions in respect of the appeal on 30.03.21 ([130]).

DBS filed and served some written submissions dated 29.05.21 ([168]).

IE provided some further written submissions on 26.08.21 ([211]).

The UT issues a second set of directions on 25.10.21 ([215]) and granted permission on four grounds of appeal to appeal following an oral hearing on 12 July 2022.

The UT has already made Orders under Rule 14 on 25 October 2021 relating to the non-identification and anonymisation of the Appellant, complainant and witnesses in this appeal together with the non-disclosure of information. Those orders continue to apply and have the effect set out in bold at the beginning of this decision. The Appellant is referred to by the cipher IE and the witnesses are also referred to by two letter ciphers.

The allegations considered by DBS are set out in full in the Decision [9B] and in the Rationale Document [135-146]. There were nine allegations (“the Allegations”). DBS came to the conclusion, on the balance of probabilities, on the documentary material before it, that each of the Allegations was proven and constituted findings of fact.

Having found the nine Allegations proven, DBS came to the further conclusion that IE had engaged in “relevant conduct” in relation to vulnerable adults, within the meaning of the Act, specifically conduct which harmed or endangered a vulnerable adult or was likely to harm or endanger a vulnerable adult.

DBS then came to the further conclusion that it would be appropriate and proportionate, in all the circumstances, to include IE on the List for the reasons it set out.

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

The Appellant relied on four grounds of appeal at the hearing of the permission application on 12 July 2022.

Permission was granted on all four grounds by Upper Tribunal Judge and the permitted grounds were then served as perfected grounds. They are:

In relation to ground i), the alleged mistake of fact falls into three categories:

The DBS relied on written evidence from nine witnesses contained in their bundle of evidence. These were all former colleagues who were employed by the home at the relevant time. There were no statements provided by the residents themselves. This was the evidence relied upon in making the barring decision and in defending the appeal. The relevant evidence is referred to in the discussion section below and we make findings of fact based upon it and the Appellant’s evidence.

The Appellant provided a detailed 10-page witness statement dated 22 December 2022 (p. 239-248) signed with a statement of truth. He also relied on other evidence he had supplied to the DBS which were contained in the hearing bundle. The Appellant was cross examined during the hearing and denied all the allegations. It goes without saying that this written and oral evidence was not available to the DBS when making its barring decision.

Again, we make findings of fact in relation to this evidence in the discussion section below – we have come to the conclusion that his written statement as set out below and his oral evidence were not substantially reliable nor credible for the reasons we will give.

Despite our findings, that the evidence given denying the nine allegations is not wholly reliable nor credible, we reproduce the Appellant’s witness statement in full as follows:

I started at [X] Homes in 2018. Initially I completed three days voluntary shift work at Service 39 so that they could monitor my performance before confirming my position employment. After these initial three days I moved to Service 42 where I worked 3 days a week. I was then moved to service 72 for around two to three months. Around 3 to 4 months later, a senior carer position became available at service 39. My manager recommended me to the position. I moved back to service 39 where I was monitored and trained by the senior to fulfil the new role. I then split my time equally between service 39 and service 72. I worked at service 39 on Monday and half day Tuesday. The other half of Tuesday and Thursday at service 72. Whilst I was senior at service 32 I was not senior at 72 as there was already a senior on shift on those days. I would just help support the 4 residents.

About 3 to 4 months before the allegation my shifts at service 72 were irregular because the company recruited more staff.

[X] Homes is a residential service provider supporting service users with learning difficulties and to support their everyday needs. ….

My working pattern did not change throughout my employment at the company. I worked Monday to Thursday 7am to 10pm. I was a senior carer at Service 39 from around June/July 2018 until the time I was suspended in 2020. At the time I worked at Service 39, there were 9 service users residing at the home.

I deny all the inappropriate behaviours alleged. I very rarely, if at all, was required to wake the service users. If ever there was a need for me to do it, I would do so respectfully and with dignity to the service users.

I have only ever been employed at the company as a member of the day staff. My shift would begin at 7am and end at 10pm. At service 39 I was the only senior on shift and was supported by 2 care staff but one of which worked one to one with SS. The night staff had a routine whereby they would wake the service users before the arrival of the day staff. They routine had been in place since before I began at the company and continued throughout my time there.

I would usually arrive at work around 6:30am ready for my shift to begin at 7am. The night staff’s morning routine would be to wake all service users before day staff arrived to take over. Whenever I arrived, most of the service users, were dressed and waiting in the lounge for their breakfast to be given by them by day staff. When my shift began I would go straight to the staff table located in the lounge. I would greet the service users already in the lounge and wait for the night staff to finish dealing with them before conducting the handover.

The only service users that would remain in their bedroom were GB, MS and JP. Although they would stay in the bedroom longer, they were all still awake.

GB had mobility issues and required two members of staff to support him getting out of bed. The night staff would wake him in the morning, but he often liked to stay in bed. When he was ready to get up, he would call for staff to help him.

MS also liked to stay in bed until he was ready to get bathed. He had capacity and would communicate to the staff when he was ready to get up for the day. If this fell on our shift, the supporting care workers would assist.

JP had difficulty of hearing, but he was fully mobile. The night staff would wake him, and he

The support staff would tend to the service users still in bed whilst I prepared breakfast for the those in the lounge. I would only attend the service users in the bedrooms in the morning if for instance my assistance was specifically required. If I were ever required to assist with getting these S[ervice] U[sers] out of bed I would never have done some in the manner alleged.

I have never made SS stand or sit in silence for any length of time.

SS was quite a volatile service user with complex needs. He was a difficult individual that could not be made to do anything that he did not want to do. Trying to make SS stand or sit in silence against his will for any length of time would be impossible and would certainly have triggered a violent outburst. I was SS’s key worker and was responsible for assessing his needs, reviewing his progress and performance, and identifying any risks or other issues. I conducted these reviews annually.

As SS’ key worker I was fully aware of the extent of his volatility and his triggers. My focus on shift was ensuring the safety and wellbeing of the service users and I would never have put myself, the staff, or others service users at risk of harm by knowingly triggering SS. My aim was for each shift to go smoothly. I would never create that situation for myself or for others.

SS required 1 to 1 support. He had a dedicated member of staff that was tasked to stay with him all day and see to his everyday needs. I would only be required to get involved with SS during meal times or if his care worker required support, but I don’t recall this ever occurring.

During my time at the company SS’s one-to-one care workers were HI, CT and RP.

I have never taken a service users’ belongings without their knowledge or consent and is not something I would ever encourage as behavioural management if it was not stipulated in their care plan. I only ever worked in accordance with the service user’s care plans to give them the best care they required.

The only time that some of SS’s belongings may have been taken away was at Christmas time. The care staff would go through the service user’s belongings periodically to discard old items to make room for the new things. However, staff worked with the service users to do this. This was a task that the home had undertaken and was not something that I introduced.

During my time at the service, I did not encounter issues with SS that required me to manage his behaviour. This was the responsibility of his 1 to 1 care worker. I would not be expected to get involved unless he was a danger to either himself or another person. Regardless of this, taking SS’s belongings to manage his behaviour was not an agreed method in his care plan and was not something that I would have recommended anyone to do as this would likely have led to risk of harm to staff, other services users and himself.

Part of SS needs was a structure to his daily routines. A timetable was put together for him in accordance with his care plan. His 1 to 1 worker would follow the same daily routines that included: taking SS out into the community every day from around 11am to around 5pm. For a large chunk of the day SS would not be at the service.

SS had quarterly assessments that were carried out by Dr M. She would assess his progress and provide guidance and advice on how to manage certain things. On each occasion she attended she passed comment on the positive progress SS was making in every aspect of his life. There were no concerns raised to her about his treatment and nothing that she would have picked up on in his behaviours and his progress.

Although I was not involved in the daily care of SS I still ensured he was cared for properly and in accordance with his needs. For instance, limiting the use of PRN. PRN is a medication that weakens the muscles and was given to service users when they were agitated. PRN was advised for use in SS care plan only when uncontrollable. I noticed that staff were administering PRN to SS whenever he displayed any signs of distress. I didn’t agree with this and educated the staff in understanding the various levels of agitation and the circumstances that PRN would be most appropriate and not just whenever he was shouting. This is an example of me working in the best interests of SS and not just doing what was easy behavioural management.

As I was SS’s key worker I was fully aware that SS had issues with things that were hot, namely,

My approach to dealing with this was ensuring that the staff were aware not to allow SS to sit next to radiators when they were on, to be present with SS and his care worker in the kitchen and by also ensuring that those who smoked, did so away from SS and out of sight. The only staff that I was aware that smoked was CB and CT. The agreement was that on the occasions either of them were his dedicated care worker for the day, they were only allowed to smoke if some other qualified staff member was able to oversee SS in their brief absence. If they were taking SS out for the day, they were instructed not to smoke at all.

From my knowledge RP did not smoke and therefore there was no requirement for me to discuss this with him. However, RP was fully aware of SS issues with lighters by virtue of SS care plan. At no point did RP ever witness me using a lighter or discuss lighters in front of or around SS.

I did not have any issues with SS during the time I worked at the home that would have required me to get involved with him to this extent. Regardless, I was strict with my approach with SS because of the risks involved. I only ever ensured his 1 to 1 care worker was enforcing his care plan for the safety of other service users and the staff.

SS is an individual of large build and was a lot taller than I. I would not have physically been able to restrain him. Restraint was not a technique that was used on the service users nor was I trained in restraint techniques. If SS ever displayed any requirement to be restrained this is when the PRN medication would be administered.

If this ever did occur, SS would have screamed and alerted other staff members, and I would not be able to do this alone.

I have nothing to add to this allegation that has not already been addressed in my representations as it did happen.

As with the other allegations, I deny this completely. SS’ movements were never restricted as far as I am aware and never had been. None of the service user’s movements were restricted. The only occasion that SS might have been confined to his bedroom is if he was having an episode however, this did not occur on any of my shifts. Confining SS to his bedroom against his will would have caused him significant distress and would trigger him cause him to become aggressive.

I only ever encouraged the staff to greet the service users when they arrived at work with particular focus on SS. I did not ever encourage or force the service users or SS to greet the staff by return. That was a choice of the service users.

Managing SS behaviour was not my day-to-day responsibility. Every so often I ensure his care plan was correct and up to date but other than this, it was the responsibility of his 1 to 1 care worker to ensure SS needs were being met and his daily routine was being followed. Keeping SS to a routine would often ensure his contentment.

There were no delays with SS meals that were within the staff’s control. SS liked to have an exact time that food would be served and if for any reason the food was delayed, SS would be given a snack to keep him occupied. All the service users would be informed when food was ready and invited to sit at the table to eat. Often SS was served first because he could become impatient, and his impatience could lead to distress followed by aggression. Outside of a meal not being ready on time, SS’ meals were never delayed or withheld.

Meal times were an awkward time. There could be up to Six residents sat around a dining table only really suitable for four people. The residents were sat very closely together. SS would sit in front of GB and next to MS. MS had a condition that affected his ability to swallow. This often-caused MS to cough violently and even be sick. If MS started violently coughing, the staff, myself include would ask the service users to move their plates out of the way to prevent particles landing on their food.

SS may not do it straight away but eventually he did and sometimes he would just respond by telling MS to stop coughing. The other staff members or I would only step in and physically move SS’ plate if it was likely that MS was going to vomit. When this happened, SS would be informed what we were doing and why we were doing it and it was only ever for as long as was necessary whilst MS was being moved away. SS loved his food and so if his plate was taken away for too long he would get angry. Similarly, if we moved his plate without first explaining it to him. SS plate would then be put back down immediately. Even in these circumstances SS plate was not taken away from his sight it was only moved to the side. There has never been any other occasion that SS’s plate has moved.

Every member of staff regardless of who they were and their job role, had a duty to record every incident witnessed and report all safeguarding concerns. At no point, that I am aware off, did any colleague record or report any of the concerns their concerns.

There was definitely a divide between staff members for a number of reasons. One being the family relationships between staff and the management/directors but also a clash in work ethic.

The biggest issues I had with some of the staff was them not following instructions or being pulled up if they weren’t performing properly. The main staff that always gave me problems with this were CB, MN, HI and SB. They constantly got defensive and would claim that I was discriminating against them because of their colour or religion which was not the case at all. I only tried to manage them as I was employed to do and ensure the standards expected of management, the service users and their families were maintained. There were often issues with the staff not cleaning properly.

In particular I had reported HI and SB for incidents involving service users. HI was moved to a different service as a result and SB was moved to work with me for half a day on Mondays. I was aware that other staff did not like working with me and some avoided working with me where they could because of my work ethic. CB was among these colleagues.

My approach to my job role was that I was going into the service user’s home, so I treated it and them with respect but also I didn’t want to give management any reason to criticise my work or the work of the staff under my supervision and jeopardise my position. I was not afraid to pick people up where they were slacking. Cleaning was a big issue in the home and often staff either did not do it or did not do it properly. This was an issue I noticed more with the night staff. I regularly picked them and others up on this and other issues and included it on their supervision reports.

There were a number of staff that were interviewed and provided statements for the internal investigation that I did not work with regularly, had not worked with for a number of months or had not worked with at all.

There was also a number of staff that I also worked with but who were not interviewed. This being Z, N, G, S, U and Z between services 39 and 72. However, neither of these were contacted during the investigation for their knowledge or insight into my conduct with service users. G and N did leave the company in late 2019 however, I worked with them regularly prior to this.

The staff I had not worked with for a number of months leading up to the allegations being made were CB, HI and CT. They had either moved to a different service or changed their shift pattern the previous year.

HI moved to a different service in June or July 2019 after I reported him to management following an incident with a service user. However, even when he was based at service 39 he was a one-to-one carer for SS and so I did not have very many dealings with him. CT was moved to service 42 in 2019 following an incident with a service user that I had reported him for. Prior to this I worked with him once per week for only a couple of months. In relation to CB, I worked with her once per week in 2018 and only some of 2019. We worked well together in the beginning, but her performance started to slip, and I was beginning to pick her up on things. She then changed to working nights in 2019. I only had any dealings with her then during handover when my shift began or ended. If there were issues within the home when I started my shift I made sure she and/or the other night staff resolved them before they left. She did not like this or being told about her performance. I had no end of issues with her because of this.

I had never worked with MN and have only worked with AA three times over the course of my employment. One of those occasions I was tasked to supervise AA for one shift so that I could assess her capabilities of performing the job properly. Unfortunately, AA was unable to carry out basic duties and so I recommended to management that she was unable to fulfil the job role. I do not know what happened to her position within the company following this. The only time I encountered MN was during handover either at the start or end of my shifts as he worked nights with CB. MN was amongst the staff that I picked up on performance issues regularly. Particularly with his standards of cleaning. Similar to CB, I made sure they had completed all tasks prior to leaving the premises. Also, on a few occasions I had a word with MN as I had suspected he had been eating the service user’s food whilst on shift.

Of the staff that were interviewed it was only RP, CO and SB that I worked alongside weekly. However, RP was a one-to-one carer for SS and so SS’s daily routine meant that we didn’t have many dealings with one another. CO and I worked well together although the usual standards of cleaning could be an issue however, she was much more receiving of this than the others. She wouldn’t complain if I delegated her tasks to do or asked that re-do something. SB on the other hand I don’t believe liked

The Monday before CB and MN made these allegations I had left a note for the night staff on Monday evening to clean a certain room during their shift. The night staff that evening happened to be MN and CB. When I started my shift the following day I saw the area dirty and that my note had been ignored. The Manager had also raised an issue with the state of this room. I informed them that I had left instructions for the night staff to clean that area.

I next saw CB and MN during the handover on Thursday evening. I confronted them both about not following my instructions. I asked them to give me one reason why I should not put them both on supervision. Supervision is a warning that is handed to management to consider taking further action or not.

In response to this CB started accusing me of always picking on her and MN and singling them both out. I assured them this was not the case and I pull anyone up who is not doing their job properly. I explained that they weren’t doing what was expected to be done and leaving it for the day staff to manage which was not fair. I told them both that I would be back on Monday and would be putting them on supervision. They were shocked. CB wasn’t happy at all. She was swearing at me telling me to “fuck off”. MN was comparing me to other seniors and how I wasn’t like them, this went on and on. Eventually I just left because my shift had already run over by 30 minutes.

Being placed on supervision would have damaged CB’s chance of promotion to a more senior role within the company. CB had applied for G’s senior carer position and was going through the recruitment process for this. She was being considered for the position and had already been interviewed for it at the time of this incident.

When I returned for my shift on Monday at 7am I noticed that management were in unusually

Three months later I was contacted by the police and invited to attend a voluntary interview which I did. This was the first I learned about the nature of the allegations and was my first and only opportunity to answer to the allegations. The criminal investigation resulted in no further action. The only other time I have been contacted about these allegations is when I received notification from the DBS that I had been referred. I focused my efforts then on resolving both the criminal and DBS issue.

At no point have I abused or mistreated the service users. It is not within my nature. I treated every service user like the individuals they were, with respect and dignity and only ever in accordance with their care plans. The way I treated my role was that we were going into their homes and so it was important to me to ensure that their home was clean and tidy and that they were treated with respect and cared for properly.

The relevant statutory provisions and authorities are set out in the Appendix to this decision.

The most relevant provisions to address within the body of the decision are paragraphs 9 and 10 of Schedule 3 to the Act on the definition of relevant conduct:

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

Ms Price presented the case expertly on behalf of the Appellant. She submitted as follows on each of the four grounds for which permission was granted.

She argued that the DBS fell into error in making findings of fact in two respects:

She contended that both constituted material mistakes of fact.

She submitted that there were, even, on the papers very strong reasons to question the credibility of the witnesses. Throughout its decision-making document, the DBS concluded that there were no reasons to question the validity of the allegations or the credibility of those making the allegations.

Ms Price argued that these conclusions are simply wrong and plainly mistaken. There was ample troubling evidence that cast doubt on the reliability of the witnesses who made the allegations and multiple reasons why they may not be accurate in their accounts, such that they amount to a clear material mistake of fact. Each reason is set out below in turn.

Absence of staff:

HI: ‘I haven’t worked there for a while. ‘I left 39 last year’ [61].

AA had only done a ‘few shifts’ ‘2 or 3 recently so I haven’t seen them much’ [60].

CT left the service the year previously according to the Appellant.

That the staff were protecting themselves: e. HI openly stated whilst seeking to blame the Appellant for his own conduct ‘am I in trouble?’ [61].

Allegations of staff conflict on race grounds: f. AA said ‘There was a black v Asian race thing going on a year ago with [the Appellant] being leader. Its better now’ [60]. g. CT also suggests there was a race divide with the Appellant on one side and SB (who was one of the witnesses who spoke against the Appellant on the other [62].

Staff disliked their supervisor (the Appellant) telling them what to do or staff wanted to avoid being performance managed:

RP said, ‘some staff don’t like being told what to do’ [52].

CT suggested, ‘he (the Appellant) has clashes with loads of staff’ [62].

The two initial and primary complainants, CB and MN, were due to be performance managed by the Appellant on the day after they raised allegations.

Both the appeal in his representations to the DBS and one of his character witnesses who worked at the service stated there was an issue with the work of CB and MN’s work.

This is verified by the complainants themselves. CB reports that the Appellant told her cleaning was not good enough [51]. She suggests there was a longer-term grievance between himself, CB and the Appellant. CB mentions in her grievance that despite her shift ending at 7am, the Appellant made the handover go on to 7.30am and so MN and CB did not finish work on time. She also reports that they criticised for their cleaning standards on 30 January and suggests that the problem between CB and the Appellant had been ‘going on for months’ [54].

CO states ‘having been the victims of false accusation in the same company last year because ‘some groups of staff don’t like you telling them to do the right thing’ [95]; and that CB and MN were told by the Appellant that their standard of cleaning needed to improve and crucially that on 3.2. the Appellant was going to conduct supervision of the two [84].

The evidence shows that in his own supervision the Appellant had raised issues with staff conduct. This verifies the Appellant’s account of events [250].

Ms Price submitted that there were potent and significant reasons for the staff witnesses not to be credible or tell the truth when giving their accounts. Yet this stands in stark contrast to the findings made by the DBS that there was no reason to question their veracity. The DBS have given no reasons for not considering the above list of concerns. This was a plain mistake of fact.

Ms Price argued that CO’s testimonial on behalf of the Appellant supports the Appellant’s account that CB and MN were disgruntled that they were being told their work was not of the required standard and they were going to be put under performance managed or supervision because of it. Yet, the DBS appear to have entirely disregarded this evidence. The DBS found that ‘there is no specific information within the body of the testimonials which indicates references are aware of the specific allegations faced by the Appellant [167].

She contended that this stands in again stark contrast to the testimonial provided by CO ‘I am fully aware of the case’ and ‘I have never seen (the Appellant) kicking service users beds or waking them up unnecessarily or taking their personal belongings or using a lighter’. This comment neatly summarises the substance of the allegations the Appellant faces.

In light of this, the fact the DBS in their own words afforded ‘little weight’ to the testimonials is even more concerning [167] making it a clear material error of law.

Ms Price submitted that contrary to the submission made on behalf of the DBS, the totality of the inculpatory evidence was entirely deficient and was woefully insufficient in terms of permitting a rational conclusion by DBS, that on the balance of probabilities, the Appellant committed the acts of misconduct alleged.

For the same reasons, Ms Price argued that the conclusion of the DBS that there was no reason to question the veracity of the staff members who spoke against the Appellant or to question their accounts was perverse. She relied on the above submissions in relation to mistake of fact.

Ms Price submitted that the DBS did not properly or adequately consider the inadequacy of the investigation the employer had conducted. There were significant gaps in the employer’s investigation. No explanation was given for this. This was not taken into account by the DBS. The concerns with the employer’s investigations included:

Ms Price submitted that the Respondent failed to properly investigate matters themselves. Had the DBS investigated further and sought the underlying documentation from the Home who reported this matter, it would have seen that there was no further explanation that justified the limited approach to the investigation. There were no witnesses were called to the disciplinary hearing. No record was made of an alleged conversation with the resident, who undertook this conversation or what he was asked (for example leading or non-leading questions), and nor how his capacity for this interview was assessed.

She argued that the DBS would also have heard from the Appellant that there were other reasons not to accept the staff accounts at face value. Such as animosity towards the Appellant due to the fact he wanted higher standards of cleaning in the service and this had caused resentment amongst staff. And had the DBS investigated matters, they would also have found that that some of the staff and management were related and this hampered management and caused animosity amongst staff members.

The DBS would have seen from the Appellant’s appraisal and supervision records there were no other issues recorded with his conduct and he was considered as an employee who did well [251], [253], [254], [256] the latter of which records he is ‘performing to excellent standards’ and [258], [260], [261].

Ms Price contended that in terms of the police investigation, the DBS would have seen that the police took no further action. Also it would have seen that the Appellant was consistent in interview in his denials and in respect of his response to the DBS. The DBS would also have noted that the police did not interview anyone else involved.

Ms Price submitted that the listing of an individual is plainly a matter that engages article 8 of the European Convention on Human Rights. The Appellant (a) lost his right to work in his chosen profession, that he has gained skills and experience within. It restricts his life choices, his professional relationships and has a negative financial impact on him. Therefore, a very careful balance must be struck between the very serious intrusion on the Appellant’s rights under article 8 and any public interest.

She accepted that although it is recognised that there is a substantial public interest in safeguarding adults and/or the importance of maintaining public confidence, the DBS did not, or did not adequately, consider article 8 when assessing the possible risk the Appellant posed.

She argued that in light of the paucity of the evidence suggesting the Appellant had acted as alleged and the Appellant’s credible denials of the same, it was both irrational and disproportionate for the DBS to decide in was both reasonably necessary and appropriate to bar, in the circumstances, in pursuance of their legitimate aims. Nor in terms of the factual findings the DBS did make, did it adequately consider the training the Appellant had undertaken, the work experience he had built up, his good character and the fact that this was an isolated allegation in an otherwise unblemished career.

For all of the above reasons Ms Price contended there were both material errors of fact and law in the DBS decision and this appeal should be allowed. Given the paucity of evidence concerning the issue of whether the Appellant undertook any relevant conduct, the DBS should be directed to remove the Appellant’s name from the adult’s barring list.

We have examined all the evidence in the case, both that which was before the DBS and that submitted by the Appellant as part of his appeal (which was not available to the DBS at the time it made its Decision) and make findings of fact as set out below.

The evidence that was before the DBS when it made its Decision did include 20 pages of factual and legal submissions dated 17 July 2020 on behalf of the Appellant – the factual representations made, denying the allegations, were in very similar terms to his witness statement dated December 2022. These were considered but rejected by the DBS in its Rationale Document dated 18 August 2020 with its reasoning explained therein.

In light of these, we will consider whether the DBS made mistakes of fact in accordance with the approach set out in PF v DBS. The burden of proof remained on the DBS when establishing the facts and making its findings of relevant conduct in its barring decision. Thereafter on the appeal to the UT, the burden was on the Appellant to establish a mistake of fact:

Furthermore, ‘In determining whether the DBS has made a mistake of fact, the tribunal will consider all the evidence before it and is not confined to the evidence before the decision-maker. The tribunal may hear oral evidence for this purpose…. In reaching its own factual findings, the tribunal is able to make findings based directly on the evidence and to draw inferences from the evidence before it...The tribunal will not defer to the DBS in factual matters but will give appropriate weight to the DBS’s factual findings in matters that engage its expertise.’

We note that the Appellant attended the hearing of the appeal, gave evidence and was cross examined. This is in contrast to the DBS’s witnesses who did not. Their evidence was written and untested, some of it consisted of handwritten statements and some of notes of answers given to question in interview.

While potentially less weight is to be given to the written evidence of those DBS witnesses, and their reliability and credibility has been impugned by the Appellant, we have had to balance this against our assessment of the Appellant’s reliability and credibility, having heard him give oral evidence.

We are not satisfied that the Appellant was a reliable and credible witnesses. First, he made an admission in oral evidence that we find was damaging to his case – he conceded that he ‘couldn’t stand SS when triggered’. This oral evidence stands in contrast to his factual representations of 17 July 2020 which state: ‘Accusation 3, [IE] denies this allegation. [IE[ has no issues with [SS] with regards to his behaviour, so had no reason to take his belongings to procure good behaviour’. This is a noteworthy inconsistency. It also explains a motive for the Appellant’s unprofessional, controlling and harmful behaviours – the Appellant wished to minimise the opportunity for SS to behave in a way that aggravated the Appellant, so he adopted inappropriate methods of control over SS.

This is one of the reasons we have found there were no material mistakes of facts in the findings for most of the allegations against the Appellant in relation to SS.

Second, the Appellant’s evidence was inconsistent with a number of witnesses who gave evidence against him. In total there were seven witnesses - all former colleagues, five whom he claimed did not like him for various reasons but a further two whom he worked most closely with and whom the Appellant states would have no motive to impugn him, namely RP and CO. While the written evidence of these two witnesses was largely supportive of the Appellant, they also gave written evidence that was damaging to and inconsistent with the Appellant’s case in some important respects. Therefore, even those witnesses whom he relied on as giving supportive evidence on his own behalf – RP and CO – did not give fully supportive evidence but evidence that tended to support some of the allegations.

Finally, we found that the Appellant’s answers in cross examination tended towards a bare denial and demonstrated a lack of insight or an inability to make any reasonable concessions – he maintained his behaviour was exemplary at all time as set out in his witness statement. He made no room for conceding that the DBS witnesses could be mistaken in their perception or memory. In particular, we do not accept his suggestion that all of these witnesses were maliciously motivated to give false evidence against him by virtue of either a racial divide in staff or resentment towards his management actions - we found it in inherently unlikely that such a large number of witnesses would fabricate evidence with such consistent and corroboratory content. There was a common theme in all the witnesses’ evidence of the Appellant being someone who was prepared to resort to harmful actions to control or coerce residents to obey him, in particular, SS.

On balance we have decided that there were material mistakes of fact in relation to three of the nine allegations but the remaining six, the most serious allegations relied on by the DBS, did not contain mistakes of fact and were established on the balance of probabilities.

In relation to these six allegations where there was no mistake of law nor fact, we are satisfied:

The location of the key documentary evidence (i.e. from within the statements), relied on by DBS (as clarified by any analysis of the Rationale Document), and which supports its key findings of fact regarding each sub-allegation, is set out below.

We now turn to address the nine allegations but do not address them all in numerical order.

DBS relied on the following six witnesses in relation to this allegation, with the relevant extracts from their evidence quoted below.

AA [56]:

DBS relies on the following six witnesses in relation to this allegation:

RP [60]:

HI [57]:

SB [59]:

In respect of each of these two allegations, six witnesses give strikingly similar and consistent evidence against the Appellant. The witnesses include RP and CO, the two witnesses that the Appellant accepts did not have any motive to make up malicious allegations against him and who were ‘on his side’ and worked closely with him. The allegations do not simply concern the treatment of SS but of multiple residents.

We do not accept the Appellant’s evidence that all this evidence was unreliable or that there was a conspiracy or motive to give false evidence on the part of the DBS witnesses (his former colleagues).

The starting point is the DBS’s findings of fact which were made without the benefit of the Appellant’s witness statement and oral evidence but after considering and rejecting the factual representations made on his behalf which were similar to his evidence. We are satisfied that the DBS’s findings and reasons therefor have not been disturbed by the Appellant’s further evidence.

We are satisfied on the balance of probabilities that there was no mistake of fact in the DBS’s findings and that these allegations are proved on the balance of probabilities. We are also satisfied that this conduct constitutes relevant conduct because it caused or was likely to cause emotional or psychological harm to vulnerable adult residents.

DBS relied on the following four witnesses in respect of this allegation:

AA [56]:

HI [57]:

CT [61]:

CB [45]:

DBS relied on the following five witnesses with regard to this particularly serious allegation:

CB [45]:

CT [61]:

SB [59]:

DBS relied on the following four witnesses in respect of this allegation:

The DBS relies on the following three witnesses in respect of this allegation:

AA [56]:

RP [51]:

We are satisfied on the balance of probabilities that allegations two, four, seven, and nine contain no material mistake of fact for the same as we have set out above in relation to the Appellant’s evidence generally and or similar reasons in relation to allegations one and three (although there is only supporting evidence from CO or RP in relation to allegation nine). There are a number of witnesses who give similar and corroborating evidence and fits a pattern of controlling, coercive and harmful behaviour towards SS.

Allegation 4 is a particular serious finding because it involves the Appellant exploiting SS’s traumatic past to use a harmful psychological technique to cause him fear.

In its Rationale document the DBS considered the Appellant’s representations made denying the allegations but gave rational reasons for rejecting the denials. We agree with the reasoning therein.

DBS relied on the following two witnesses in respect of this allegation:

DBS relied on the following three witnesses in respect of this allegation:

DBS relies on only one witness in respect of this allegation:

In relation to the three allegations: five, six, and eight, we are satisfied that there were mistakes of fact in the DBS finding each of them proved on the balance of probabilities.

There were fewer witnesses in support of each allegation (three, two or one witness) and while corroboration is not necessary and it is not an arithmetical exercise of counting witnesses, it allows for a greater room for potential unreliability in their evidence.

The Appellant has denied each of these allegations in the specific terms set out in his witness statement above (which mirror his original representations). While we have not found his evidence to be reliable in general and in respect of the six allegations above, we accept that not all of his evidence was unreliable.

In respect of these three allegations, we are satisfied that the witnesses are mistaken and have misinterpreted actions of the Appellant as constituting harmful behaviour (without any finding they were lying).

In relation to allegation five, we accept that physically this is unlikely to have been possible for the Appellant given the difference in physical size he describes in his statement.

In relation to allegation six, we take into account the fact that the evidence given by the DBS witnesses is in brief and undetailed answers and is largely given in relation to leading questions from the interviewer.

In relation to allegation eight, we accept that the witness may have misinterpreted these statements and the Appellant’s behaviour as being harmful when it was not part of deliberate or coercive conduct on the Appellant such that it did not amount to relevant conduct.

We have found there to be no mistake of fact in six of the nine allegations and findings relied on by the DBS as relevant conduct. There was no argument that the allegations and findings, particularly when viewed collectively and as part of a proven pattern of conduct, did not amount to “relevant conduct” under the Act. They obviously did. The Appellant’s actions caused harm or a risk of harm (emotional, psychological or physical) to SS and other residents. The witnesses testified to as much and their evidence has been found to be reliable in this respect.

As the core allegations have been found proven, it was and is, unarguably, “conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult” and/or “conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him”.

Although, we have found that there were mistakes of fact in relation to three of the nine allegations, given the number and seriousness of the six allegations that were proved not to contain any mistake, it is inevitable that the DBS would have made the same decision to bar the Appellant from working with vulnerable adults. The mistaken facts were not material to the ultimate decision – it is inevitable that the DBS would have decided it appropriate and proportionate to bar the Appellant based on the six established allegations of relevant conduct.

The issue of whether it was “appropriate”, in such circumstances, to place IE on the List is beyond the jurisdiction of the UT, unless the same was either irrational or disproportionate. We are satisfied that the Appellant has not established that barring was either irrational nor disproportionate for the reasons we set out below.

More widely, DBS relies on the following further misconduct against the Appellant which did not form part of its allegations of relevant conduct: (a) SS being “scared of [the Appellant]”: AA [56]; HI [57]; SB [59]. (b) SS being made to repeat instructions: HI [57]. (c) Intimidating/manipulating/coaching/limiting staff: SB [59]; HI [57]; CT [61-62].

There is no need for us to make any findings on these matters.

We consider below the other arguments raised by Ms Price in relation to mistake of fact.

We are not satisfied that the DBS failed to consider the weight of the evidence that undermined or put in question the credibility of the witnesses that made the allegations. We are satisfied that the DBS considered these matters, in so far as they were before them, but rejected them when making its findings.

The DBS is required to exercise its own independent judgement and to make necessary findings of fact, on the civil standard of proof. It considered the Appellant’s representations dated 17 July 2020 but rejected them for reasons it gave in its Rationale document and its Decision. The representations included matters said to undermine the credibility of the DBS witnesses.

It is those documents, the Decision and the Rationale document, which together set out the overall substantive decision and the detailed reasons for it (see, for example, AB v DBS [2016] UKUT 386 (AAC), para 35, in support of that proposition which is not considered to be controversial).

In the Rationale Document, it is apparent that the evaluation relating to each specific sub-allegation was carefully evaluated by the DBS decision-maker. Specific references are made to the statements relied on by the DBS.

In the case of each of the six allegations we have found to contain no mistake of fact, the DBS was able to identify and rely on inculpatory evidence from multiple sources. On the face of it, that evidence was (and remains) reliable, credible and persuasive. Set against that, the DBS had to consider the Representations. As can be seen from the Rationale Document, DBS carried out that task with reasonable care.

In the final analysis: in relation to each of the Allegations proved, there was a strong body of credible evidence pointing clearly towards IE having committed the relevant conduct. Ultimately, the Appellant’s Representations, like the evidence he gave, were not persuasive. The reasonable action in the circumstances was for DBS to prefer the evidence from the Appellant’s former colleagues.

Moreover, this was not, in reality, a situation where the Appellant’s former colleagues were likely to have been mistaken about the central matters which have been proved: either they were telling the truth and were correct about the core allegations or they were (all) lying and acting in an active conspiracy against IE. There was no credible reason why so many individuals would lie and conspire, in such a serious way, against IE. It was – and it is – more likely than not that the core allegations are simply correct, as found by DBS and by us.

In any event, given our factual findings, any mistakes by the DBS have been cured by us having considered all the evidence afresh – both that before the DBS and that which has been served subsequently.

We, like the DBS, have considered the evidence and arguments put forward by the Appellant when making findings of fact. When the DBS stated for example that there was ‘no reason to doubt the veracity of the records of the discussions or contents of the statements’ (made by the former colleagues), it might properly have said that there was ‘insufficient’ reason to doubt their credibility. However, this point is not material.

We, like the DBS, have considered the alternative case put forward by the Appellant – that his former colleagues were motivated by a racial dislike, personal dislike or falling out with his managerial style and decision-making regarding their performance review.

We have rejected it, like the DBS on the basis that, whatever their personal feelings for the Appellant, it highly unlikely that each of the many witnesses would share similar motives to impugn the Appellant’s credibility by making factual allegations which were so consistent and corroboratory without a high degree of collusion or conspiracy. Furthermore, the allegations were partially supported by the two witnesses, RP and CO, that the Appellant wished to rely upon as supportive. These were two witnesses who the Appellant says spent the most time working with him.

The fact that there was no evidence sought or before DBS in the form of contemporaneous records from the Home, is not surprising in all the circumstances as they are properly understood from the material presented before DBS. This was a situation where one “whistleblower” first notified the employer of the acts of IE, and then other members of staff – operating in more junior positions to IE – followed. The absence of any such records may, in that way, be reasonably expected, and would not and does not undermine the Decision.

The fact that there was no evidence sought or before DBS from residents, other staff medical doctors, or other specialists, does not undermine the Decision, in any material way, either. Nor does the claim from IE that nothing had been mentioned, earlier on, in something like a staff survey.

The fact that there may have been further evidence which was not obtained does not detract from the evidence that was obtained and relied upon. Neither the DBS nor the Home were under a duty to conduct further investigations and obtain further evidence in this case for the reasons we explain below in relation to the error of law ground. Although it may have been impractical or difficult for the Appellant himself to obtain missing evidence from these absent sources, he could have attempted to collate evidence from supportive witnesses of fact on the substantive issues as he did from CO.

Furthermore, we are not satisfied that the DBS failed to properly take into account the evidence that supported the Appellant’s denials. The Character References and testimonials the Appellant provided in support of his good character were considered but reasonably deemed not sufficient to point to a different decision. Ultimately, they do not outweigh the directly relevant evidence set out in the DBS statements. To the extent that CO provided separate supportive testimonial on behalf of the Appellant, she had already provided evidence to the DBS that was also partly inculpatory.

It is clear that DBS took into account and gave consideration to the Character References provided, along with the Representations, by IE. In the Rationale Document, the decision-maker allowed them “little” but therefore some weight. It was rational and reasonable to only give the Character References some limited weight in all the circumstances. It is correct to say that, in broad terms, these were classic “character references” or “testimonials”:

The first [82] stated that the referee had known IE for a couple of years and had worked under his supervision for about six months. It contained a relatively bare and generic assertion/opinion that IE “has a very strong work ethic”, takes his duty of care “seriously”, addresses “everyone” he “comes in contact” with “in a polite and civil manner”, and, in his or her experience, made decisions in the best interests of clients. It made no reference to any DBS proceedings against IE or to the allegations, whether specifically or generally.

The second [83], provided by a “friend”, stated that he or she had known IE for around eight years, including as a work colleague, university peer and member of a religious group. The referee claimed to be able to “attest” that IE “possesses caring and compassion [sic] personalities, enthusiastic [sic] and dedicated towards every assigned task”. There is a reference to the referee being aware of IE’s “potential inclusion on the barred list”. There is an assertion that that “appears to me a defamation of character and should be heavily investigated”. There is a statement: “Without reasonable doubt, I believe that the allegations that have been levelled against [IE] of false”. However, there is: (a) no suggestion that the referee knew the precise particulars of the Allegations; and (b) no particular evidence or information relating to them specifically.

The third [84-85] reference is longer. The referee, it will be noted, was already one of the individuals who provided the Statements [47-48]. In his subsequent reference, she/he states that they had resigned claiming to have felt that there was a conspiracy against him/her. The referee states that he/she had known IE for about 8 months, that he/she worked under his supervision at the Home and refers to IE’s hard work ethic and general competence. This referee states that he/she is aware of the case and that “the allegation” did not reflect the true character of IE. Unlike the other two, this referee does refer to some of the specific allegations: saying that he/she has not personally witnessed IE “kicking service users’ bed [sic]” or “waking them up unnecessarily” or “taking their personal belongings” or “using a lighter”.

Overall, there is nothing sufficient within the Character References, whether taken individually or together, to undermine the Decision and render it mistaken in fact or law. It is reasonably clear that DBS was aware that the third referee (only) was in fact aware of at least some of the allegations. It is reasonably clear that the DBS rationally and reasonably inferred that the other two were not aware of them and/or did not address them in any direct or meaningful way. But, even if DBS was wrong as a fact about that the referees’ knowledge of the allegations, it would not have made a material different to the outcome, as the weight of evidence was and remains in favour of the conclusion that IE did the core acts as found proved.

For all the same reasons as set out above, we do not accept the submission that there were any perverse findings by DBS such as to amount to an error of law. Ms Price argued that the conclusion of the DBS that there was no reason to question the veracity of the staff members who spoke against the Appellant or to question their accounts was perverse. As above, we accept it may have been incorrect because it should have said there was insufficient reason to question the veracity, but in light of the material already put before the DBS in the representations but it was not perverse to reject this material. The DBS was entitled to prefer the account provided by these witnesses and reject the suggestion the reasons relied upon by the Appellant that they were lying.

In any event, any errors of law in the DBS’s findings of fact are not material given that we have considered all the evidence afresh and found no mistakes of fact in six of the allegations. We have considered the same matters and come to the same conclusion.

The factual findings of the DBS, even the three which contained mistakes of fact, were all findings it was reasonably entitled to come to on the evidence before it. There was no perversity nor error of law.

Ms Price submits that the DBS did not properly or adequately consider the inadequacy of the investigation the employer had conducted. There were significant gaps in the employer’s investigation. No explanation was given for this and this was not taken into account by the DBS.

We reject this submission.

First, it is clear that DBS was aware that the employer’s investigation (and the wider disciplinary procedure of which the investigation would be a key part) was incomplete. It the summary to the Rationale Document [133], for example, the following is stated:

As such, DBS did not rely on any purported findings of fact or any conclusion by the employer and it recognised that IE had not had an opportunity to give his account and challenge the allegations within that internal process.

Second, while it might have been preferable, it is ultimately not material, whether any internal workplace proceedings had been completed or not (or even whether they were fair or not). Ultimately, DBS was still required to make a decision on the available evidence and that is what it did in this particular case.

It would be a rare case where it would be procedurally unfair or improper for the DBS to make a barring decision based on sufficient available evidence but where an internal, employer’s or police investigation was incomplete or outstanding.

The absence of further evidence is a matter that may be taken into account by the DBS but ultimately the Appellant can attempt to serve and rely upon evidence that was previously unavailable – both in representations to the DBS before the barring decision and in any appeal to the Upper Tribunal.

As a matter of completeness: the evidence indicates that the key decision by the police and/or the CPS about whether to pursue formal criminal proceedings against IE was not made at the time of the Decision. That is what the letter from IE’s solicitors to IE, dated 21.09.20 (i.e. after the Decision was made and sent out), indicates [128]. And, in the Representations, it was stated that, as of 17.07.20, IE’s representatives “understand that the matter is still with the CPS for a charging decision”. There is no suggestion that IE contacted DBS with any material update on this point before the Decision was made.

Further, in any event, it would not have made any difference to the outcome. Any decision by CPS would, of course, have been made in relation to the completely different – and more demanding – standard of having to prove alleged matters beyond reasonable doubt. Bearing that in mind, DBS would, on the evidence before it, have made the same decision even if both: (a) CPS had made its decision before DBS made its decision; and (b) DBS been aware of that fact.

Moreover, the DBS cannot properly be criticised for pressing ahead with its decision rather than, as an alternative, awaiting some potential decision at some undefined point in time by the CPS. DBS has a statutory duty to take action, when it considers it appropriate and in line with the applicable legislation to do so, in order to protect vulnerable members of the public.

Further, the absence of interview of the Appellant by the home, the absence of evidence from other staff members and care records of service users are all cured by our findings in relation to the available evidence from the DBS and the Appellant. Ultimately, the Appellant may attempt to request further material from the DBS or his former employer and obtain witness summonses from the Tribunal (or other forms of legal remedies through the courts) to obtain further evidence if it is relevant and it is not supplied voluntarily. He has the opportunity to remedy the gaps in any investigation by the employer or the DBS. Neither the employer nor the DBS is under the duty nor obligation to conduct an investigation and obtain evidence equivalent to that in a criminal investigation and prosecution.

Therefore, we accept that there was no error of law in the DBS’s failure to obtain other evidence or obtain disciplinary records or interview other residents or co-workers in this case (and where the Home had not done so).

There is no statutory or other duty upon the DBS (or employer) to pursue all reasonable lines of enquiry – only the public law duty for the DBS to act rationally and in good faith when obtaining evidence and relying upon it. However, in future cases it would assist if the DBS makes clear that it has used its best endeavours to pursue all reasonable lines of enquiry pointing towards and away from the case it alleges and takes reasonable steps to obtain all relevant evidence. What is relevant and reasonable will depend on all the facts of the case including the seriousness of the allegations.

In this case, we were given no evidence of the size of the care home or number of residents or co-workers. However, we can take into account the absence of evidence when deciding whether there is a mistake of fact by the DBS. We have done so but it has not altered our findings.

We are satisfied that there is no substance to the final ground on proportionality – or any challenge to the Decision on rationality/perversity grounds. Once the decision had been made that most of the alleged relevant conduct has occurred, and that it amounts to “relevant conduct” and that it was appropriate to place IE on the List, it cannot be properly argued that the barring decision was “irrational”. The Decision and Rationale provide reasonable and sufficient reasons in relation to each statutory condition which is required to be satisfied.

Neither are we not satisfied that the Decision was “disproportionate”. There was no evidence of insight or remorse from IE because he denied all the allegations. That was – and is – significant in a case such as this. There was sufficient evidence of intention and blameworthiness to commit the relevant conduct.

The conduct, once found proved, constituted an abuse of trust placed in IE as a care-giver to vulnerable adults and, moreover, as a supervisor of more junior staff. The (proven) allegation relating to the cigarette lighter alone was sufficient, without more, to justify a barring decision. We are satisfied that there was, here, agreeing the findings of fact arrived at by DBS, a clear pattern of relatively serious, culpable and highly inappropriate misconduct/ abuse of a type that would be very difficult (even had there been all necessary insight) to remediate effectively.

We are satisfied that DBS had an entirely legitimate and rational concern that, should IE be permitted to continue to work with vulnerable adults, he might repeat such conduct in the future. In any event, so long as rational, the assessment of risk is a matter for the expert assessment of the DBS and we take into account the issue of maintaining wider public confidence in the regulatory scheme, too. That is a matter that ought to be kept in mind, in every barring decision.

We rely on the line of authority which has set out that DBS is particularly well-equipped to make safeguarding decisions of this kind, and, in particular, the recent Court of Appeal judgment in DBS v AB [2021] EWCA Civ 157 (e.g. paragraphs 43-44, 55, 66-75). At paragraph 55 of DBS v AB, Lord Justice Lewis stated:

We also note the more recent UT case of AB v DBS [2022] UKUT 134 (ACC). In AB v DBS, the UT decided that DBS v AB precluded the UT from deciding upon an assessment of risk but not, as a matter of fact, whether there was a risk. That was a case on a different barring provision (i.e. “risk of harm” rather than “relevant conduct”); but even if AB v DBS was to be followed in the instant case, as representing a potentially more favourable position to IE, it would still not assist IE as he has not demonstrated that any conclusion by DBS that there was a risk, contained any error of law or fact; and, beyond that, the evaluation/assessment of risk is not a matter for the UT unless it is irrational.

As found above: the crux of this case relates to the findings of facts. If (as we have found) there was no material mistake on the most serious facts, it cannot properly be found that, on those facts, there was no “relevant conduct” or that the decision that it was appropriate to bar was either irrational or disproportionate.

Finally, it is clear from the documentation in the Bundle that proportionality of the impact of the barring decision upon the Appellant was specifically and properly considered by DBS [12] [154-155; 162-164]. It was expressly acknowledged that any conclusion to place IE on the List would have a significant adverse impact on his article 8 right to work (or volunteer) in his chosen field and/or earn money etc. The DBS decision-maker stated (among other things):

The DBS went on to consider that. DBS concluded, rationally and correctly, that there were not; and that, as a consequence, it was reasonably necessary and appropriate to put IE on the List in order to properly safeguard vulnerable adults. No less restrictive option was/is available in order to achieve DBS’s legitimate aim of adequately protecting vulnerable groups.

The decision to bar was not disproportionate and there was no error of law.

Despite the valiant efforts of Ms Price and the quality of her representation, we have dismissed each ground of appeal.

We conclude for the purposes of section 4(5) of the Act that there were no mistakes of law in the DBS Decision to include the Appellant on the ABL. There were no material mistakes of fact upon which the Decision was based – there were some mistakes of fact but it is inevitable that the DBS would have reached the same conclusion even if it had not made these mistakes.

The Decision of the DBS to include the Appellant on the ABL is confirmed.

The appeal is dismissed.

The Safeguarding Vulnerable Groups Act 2006 (‘the Act’) established an Independent Barring Board which was renamed the Independent Safeguarding Authority (‘ISA’) before it merged with the Criminal Records Bureau (‘CRB’) to form the Disclosure and Barring Service (“DBS”).

So far as is relevant, section 2 of the Act, as amended, provides as follows:

DBS must establish and maintain—

the children's barred list;

the adults' barred list.

Part 1 of Schedule 3 applies for the purpose of determining whether an individual is included in the children's barred list.

Part 2 of that Schedule applies for the purpose of determining whether an individual is included in the adults' barred list.

Part 3 of that Schedule contains supplementary provision.

In respect of an individual who is included in a barred list, DBS must keep other information of such description as is prescribed.’

The relevant provisions (paragraphs 8 to 11) of Part 2 of Schedule 3 to the Act, on the vulnerable adults’ barred list, provide as follows:

Sub-paragraph (4) applies if it appears to DBS that—

this paragraph applies to a person, and

the person is or has been, or might in future be, engaged in regulated activity relating

[DBS] must give the person the opportunity to make representations as to why the person should not be included in the adults’ barred list.

Sub-paragraph (6) applies if—

the person does not make representations before the end of any time prescribed for the

the duty in sub-paragraph (4) does not apply by virtue of paragraph 16(2).

If [DBS] —

is satisfied that this paragraph applies to the person, and

has reason to believe that the person is or has been, or might in future be, engaged in

Sub-paragraph (8) applies if the person makes representations before the end of any time

If [DBS] —

is satisfied that this paragraph applies to the person,

has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults, and

is satisfied that it is appropriate to include the person in the adults’ barred list, it must include the person in the list.

it appears to [DBS] that the person [—]

is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults, and]

[DBS] proposes to include him in the adults' barred list.

[DBS] must give the person the opportunity to make representations as to why he should not be included in the adults' barred list.

[DBS] must include the person in the adults' barred list if–

it is satisfied that the person has engaged in relevant conduct, […]

it [ is satisfied] that it is appropriate to include the person in the list.

conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult;

conduct which, if repeated against or in relation to a vulnerable adult, would endanger

conduct involving sexual material relating to children (including possession of such

conduct involving sexually explicit images depicting violence against human beings

conduct of a sexual nature involving a vulnerable adult, if it appears to [DBS] that the conduct is inappropriate.

A person's conduct endangers a vulnerable adult if he–

harms a vulnerable adult,

causes a vulnerable adult to be harmed,

puts a vulnerable adult at risk of harm,

attempts to harm a vulnerable adult, or

incites another to harm a vulnerable adult.

“Sexual material relating to children” means–

indecent images of children, or

material (in whatever form) which portrays children involved in sexual activity and which is produced for the purposes of giving sexual gratification.

“Image” means an image produced by any means, whether of a real or imaginary subject.

A person does not engage in relevant conduct merely by committing an offence prescribed for the purposes of this sub-paragraph.

For the purposes of sub-paragraph (1)(d) and (e), [DBS] must have regard to guidance issued by the Secretary of State as to conduct which is inappropriate.

it appears to [DBS] that the person [—]

is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults, and]

[DBS] proposes to include him in the adults' barred list.

[DBS] must give the person the opportunity to make representations as to why he should not be included in the adults' barred list.

[DBS] must include the person in the adults' barred list if–

it is satisfied that the person falls within sub-paragraph (4), […]

it [is satisfied] that it is appropriate to include the person in the list.

A person falls within this sub-paragraph if he may–

harm a vulnerable adult,

cause a vulnerable adult to be harmed,

put a vulnerable adult at risk of harm,

attempt to harm a vulnerable adult, or

incite another to harm a vulnerable adult.

There are three separate ways in which a person may be included in the barred lists under Schedule 3 to the Act.

The first category is under paragraphs 1 and 7 of Schedule 3 to the Act, where a person will be automatically included in the lists without any right to make representations (‘autobar’). This is where they have been convicted of certain specified criminal offences or made subject to specified orders set out within Regulations 3 and 5 and paragraphs 1 and 3 of the Schedule to The Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (‘The Regulations’).

The second category is under paragraphs 2 and 8 of Schedule 3 to the Act, where a person will be included in the lists if they meet the prescribed criteria. The person who is proposed to be barred has a right to make representations to the DBS (‘autobar with representations’). There are prescribed criteria where a person has been convicted of certain specified criminal offences or made subject to specified orders but nonetheless is entitled to make representations as to inclusion on the list. The prescribed criteria are set out within Regulations 4 and 6 and paragraphs 2 and 4 of the Schedule to The Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009.

If a person falls within the prescribed criteria under the Regulations, they satisfy subparagraph (1) of the following paragraphs and therefore under paragraphs 2(6), (2)(8), 8(6) or 8(8) of Schedule 3 to the Act, the DBS will include the person in the children’s or adults’ barred list if it:

is satisfied that this paragraph applies to the person,

has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to [children or adults], and [so long as the person has made representations regarding their inclusion]

is satisfied that it is appropriate to include the person in the children's barred list, it must include the person in the list.

In contrast, this appeal concerns the third category (‘discretionary barring’) where a person does not meet the prescribed criteria (has not been convicted of specified criminal offences nor made subject to specified orders as set out within the Regulations and the Schedule thereto), and therefore paragraphs 3 and 9 of Schedule 3 to the Act apply.

It is the third category under which the DBS made the decision to bar the Appellant.

Under paragraphs 3(3) and 9(3) of Schedule 3 the DBS must include the person in the children’s barred list if:

it is satisfied that the person has engaged in relevant conduct, and

it is satisfied that it is appropriate to include the person in the list.

‘Relevant conduct’ is defined under paragraphs 4 and 10 of Schedule 3 to the Act as set out above.

The difference between the sets of criteria in the second and third categories is where a person meets the prescribed criteria for automatic inclusion with representations (has been convicted of a specified offence or made subject of a specified order), the DBS is not required to decide if the person has been engaged in relevant conduct. This is because the statutory scheme appears designed so that a specified criminal conviction which satisfies the prescribed criteria, renders the need to make any findings about a person’s conduct otiose.

Appeal rights against decisions made by the Respondent (DBS) are governed by section 4 of the Act. Section 4(1) provides for a right of appeal to the Upper Tribunal against a decision to include a person in a barred list or not to remove them from the list. Section 4 states:

. . .

a decision under paragraph [2,] 3, 5, [8,] 9 or 11 of [Schedule 3] to include him in the list;

a decision under paragraph 17[, 18 or 18A] of that Schedule not to remove him from the list.

An appeal under subsection (1) may be made only on the grounds that DBS has made a mistake —

on any point of law;

in any finding of fact which it has made and on which the decision mentioned in that subsection was based.

For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.

An appeal under subsection (1) may be made only with the permission of the Upper Tribunal.

Unless the Upper Tribunal finds that [the DBS] has made a mistake of law or fact, it must confirm the decision of DBS.

If the Upper Tribunal finds that DBS has made such a mistake it must—

direct DBS to remove the person from the list, or

remit the matter to DBS for a new decision.

If the Upper Tribunal remits a matter to [the DBS] under subsection (6)(b)—

the Tribunal may set out any findings of fact which it has made (on which DBS must base its new decision); and

the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise.’

Thus section 4(2) of the Act provides that a person included in (or not removed from) either barred list may appeal to the Upper Tribunal on the grounds that the DBS has made a mistake of law (including the making of an irrational or disproportionate decision) or a mistake of fact on which the decision was based. Although not provided for by statute, the common law requires that any mistake of fact or law, normally referred to as ‘errors’, must be material to the ultimate decision ie. that they may have changed the outcome of the decision – see [102]-[103] of the judgment in R v (Royal College of Nursing and Others) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin) (‘RCN’):

It flows from this that an appeal to the Upper Tribunal can only succeed if the DBS made a mistake in fact in making a finding upon which the decision is based or made a mistake in law in any way in making its decision – see section 4(5) of the Act.

Some mistakes of fact will amount to errors of law, for example, if it is demonstrated that the DBS took into account evidence that was irrelevant, or failed to take into account evidence that was relevant or made a finding that was unreasonable – no reasonable tribunal could have arrived at upon the evidence before it. These are all errors of law that might be committed in relation to a factual finding.

However, by virtue of section 4(2), mistakes of fact which are not also errors of law may also constitute a ground upon which the Upper Tribunal may interfere with a DBS finding upon which a decision is based. This type of mistake of fact might arise if the DBS recorded or interpreted evidence before it inaccurately or incorrectly or relied upon evidence which was inaccurate or incorrect as a matter of fact.

So long as the DBS takes account of the relevant evidence, provides rational reasons and makes no errors in the facts relied upon for rejecting a barred person’s account on the balance of probabilities, this is unlikely to give rise to an arguable mistake of fact. In other words, an appeal before the Upper Tribunal is not a full merits appeal on the facts – see [104] of the RCN judgment below.

The Upper Tribunal must begin by examining the DBS decision and deciding whether it made any mistakes when finding the facts (such findings will have been made based on the documentary material available to it). However, the Upper Tribunal may also make its own fresh findings of fact having heard all potentially relevant evidence and witnesses during the appeal process by which it may determine whether the DBS made a mistake of fact which was material to the making of its decision.

The extent of the jurisdiction for the Upper Tribunal to determine mistakes of fact by the DBS and make its own findings of fact was outlined in PF v Disclosure and Barring Service [2020] UKUT 256 (AAC) at [51]:

In those narrow but well-established circumstances in which an error of fact may give rise to an error of law, the tribunal has jurisdiction to interfere with a decision of the DBS under section 4(2)(a).

In relation to factual mistakes, the tribunal may only interfere with the DBS decision if the decision was based on the mistaken finding of fact. This means that the mistake of fact must be material to the decision: it must have made a material contribution to the overall decision.

In determining whether the DBS has made a mistake of fact, the tribunal will consider all the evidence before it and is not confined to the evidence before the decision-maker. The tribunal may hear oral evidence for this purpose.

The tribunal has the power to consider all factual matters other than those relating only to whether or not it is appropriate for an individual to be included in a barred list, which is a matter for the DBS (section 4(3)).

In reaching its own factual findings, the tribunal is able to make findings based directly on the evidence and to draw inferences from the evidence before it.

The tribunal will not defer to the DBS in factual matters but will give appropriate weight to the DBS’s factual findings in matters that engage its expertise. Matters of specialist judgment relating to the risk to the public which an appellant may pose are likely to engage the DBS’s expertise and will therefore in general be accorded weight.

The starting point for the tribunal’s consideration of factual matters is the DBS decision in the sense that an appellant must demonstrate a mistake of law or fact. However, given that the tribunal may consider factual matters for itself, the starting point may not determine the outcome of the appeal. The starting point is likely to make no practical difference in those cases in which the tribunal receives evidence that was not before the decision-maker.’

The recent judgment of the Court of Appeal in Disclosure and Barring Service v AB [2021] EWCA Civ 1575 (‘AB’), addressed the Tribunal’s fact-finding jurisdiction when remitting cases to the DBS having allowed an appeal:

On an appeal, the Upper Tribunal (‘UT’) must confirm the DBS’s decision unless it finds a material mistake of law or fact. If the UT finds such a mistake, it must remit the matter to the DBS for a new decision or direct the DBS to remove the person from the list.

Under section 4(3) of the Act, the decision whether or not it is “appropriate” for an individual to be included in a barred list is “not a question of law or fact”. Section 4(3) of the Act therefore provides that the appropriateness of a person’s inclusion on either barred list is not within the Upper Tribunal’s jurisdiction on an appeal. Unless the DBS has made a material error of law or fact the Upper Tribunal may not interfere with the decision - RCN at [104]:

The fact that the appropriateness of barring is not to be examined as an error of fact in the light of section 4(3) of the Act was recently reiterated in DBS v AB [2021] EWCA Civ 1575. The Court of Appeal explained the nature of the Upper Tribunal’s jurisdiction at [67]-[68]:

Therefore, the DBS is empowered and required to make a judgement as the expert body appointed by Parliament, whether the relevant conduct is such that, in all the circumstances, makes it “appropriate” to include the individual in the CBL. In so doing it will normally take into account a risk assessment, that it performs in relation to the individual it proposes to bar. However, the DBS concedes that the rationality and proportionality of any risk assessment it conducts can be challenged as having been made in error of law.

A mistake or error of law includes instances where the DBS have got the particular legal test or tests wrong (applied or interpreted the law incorrectly), or failed to consider all the relevant evidence or made a perverse, unreasonable or irrational finding of fact, or failed to explain the decision properly by giving sufficient or accurate reasons, or breached the rules of natural justice by failing to provide a fair procedure or hearing (in the rare circumstances where it considers oral representations).

A mistake of law will also include instances where the decision to bar was disproportionate.

The UT is not permitted to carry out a full merits reconsideration of, or to revisit, the appropriateness of R’s decision to bar; but it does have jurisdiction to determine proportionality and rationality in relation to the DBS’s judgment as to the risk that a barred person poses and whether they should be included on the list, according appropriate weight (in so doing) to the DBS’s decision as the body particularly equipped, and expressly enabled by statute, to make safeguarding decisions of this specific kind (e.g. B v Independent Safeguarding Authority (CA) [2012] EWCA Civ 977, [2013] 1 WLR 308 ; Independent Safeguarding Authority v SB (Royal College of Nurses intervening) [2012] EWCA Civ 977; [2013] 1WLR 308 (‘B’).

Maintenance of public confidence, in the regulatory scheme and the barred lists, will “always” be a material factor when seeking to balance the rights of the individual and the interests of the community (e.g. B). Where it is alleged that the decision to include a person in a barred list is disproportionate to the relevant conduct or risk of harm relied on by the DBS, the Tribunal must, in determining that issue, give proper weight to the view of the DBS as it is enabled by statute to decide appropriateness - see the Court of Appeal’s judgment in B at paragraphs [16]-[22] (ISA formerly assuming the role of the DBS):

All that is now well established. The next question – and the one upon which Ms Lieven focuses – is how the court, or in this case the UT, should approach the decision of the primary decision-maker, in this case the ISA. Whilst it is apparent from authorities such as Huang and Quila that it is wrong to approach the decision in question with "deference", the requisite approach requires

This brings me to two particular points. First, there is the fact that, unlike the ISA, the UT saw and heard SB giving evidence. However, it cannot be suggested that it was unlawful for the ISA not to do so. It had had at its disposal a wealth of material, not least the material upon which the criminal conviction had been founded and which had informed the sentencing process. The objective facts were not in dispute. Secondly, Mr Ian Wise QC, on behalf of the Royal College of Nursing, emphasises the fact that the UT is not a non-specialist court reviewing the decision of a specialist decision-maker, which would necessitate the according of considerable weight to the original decision. It is itself a specialist tribunal. Whilst there is truth in this submission, it has its limitations for the following reasons: (1) unlike its predecessor, the Care Standards Tribunal, it is statutorily disabled from revisiting the appropriateness of an individual being included in a Barred List, simpliciter; and (2) whereas the UT judge is flanked by non-legal members who themselves come from a variety of relevant professions, they are or may be less specialised than the ISA decision-makers who, by paragraph 1(2) of schedule 1 to the 2006 Act "must appear to the Secretary of State to have knowledge or experience of any aspect of child protection or the protection of vulnerable adults". I intend no disrespect to the judicial or non-legal members of the UT in the present or any other case when I say that, by necessary statutory qualification, the ISA is particularly equipped to make safeguarding decisions of this kind, whereas the UT is designed not to consider the appropriateness of listing but more to adjudicate upon "mistakes" on points of law or findings of fact (section 4(3)).’

In summary, questions of the proportionality of DBS’s decisions to include individuals on the barred lists should be examined applying the tests laid down by Lord Wilson in R (Aguilar Quila) v Secretary of Stage for the Home Department [2012] 1 AC 621 at para 45:

is the legislative objective sufficiently important to justify limiting a fundamental right?

are the measures which have been designed to meet it rationally connected to it?

are they no more than are necessary to accomplish it?

do they strike a fair balance between the rights of the individual and the interests of the community?

In assessing proportionality, the Upper Tribunal has ‘…to give appropriate weight to the decision of a body charged by statute with a task of expert evaluation’ (see Independent Safeguarding Authority v SB [2012] EWCA Civ 977 at [17] as set out above).

The burden of proof is upon the DBS to establish the facts when making its findings of relevant conduct in its barring decision. Thereafter on the appeal to the UT, the burden was on the Appellant to establish a mistake of fact. The standard of proof to which the DBS and the Upper Tribunal must make findings of fact is on the balance of probabilities, ie. what is more likely than not. This is a lower threshold than the standard of proof in criminal proceedings (being satisfied so that one is sure or beyond reasonable doubt).