VM v Disclosure and Barring Service

The Appellant (also referred to as ‘VM’) appeals to the Upper Tribunal against the decision of the Respondent (the Disclosure and Barring Service or ‘DBS’) dated 20 April 2022 to include her name on the Children’s Barred List (‘CBL’) and vulnerable Adults’ Barred List (‘ABL’) pursuant to paragraphs 3 and 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (“the Act”).

Permission to appeal to the Upper Tribunal (‘UT’) was granted by the Judge on 25 September 2023 in respect of the grounds raised by the Appellant in the grounds of appeal and at the permission hearing. In summary, the grounds of appeal were that each of the findings that the Appellant committed relevant conduct were based on mistake of facts and there was a mistake of law– the DBS made a disproportionate decision to bar her from working with children in regulated activity.

We held a hearing of the appeal in person at Field House, London on 13 May 2024. The Appellant appeared and participated in person by giving oral evidence. She was assisted and represented by her brother who made submissions on her behalf.

The Respondent (the DBS) was represented at the hearing by Mr Simon Lewis of counsel. We are grateful to him and the Appellant’s brother for the quality of their written and oral submissions.

In broad summary, the background is as follows. At the material time, VM was the deputy manager of a residential care home (“the Home”), operated by her employer (“the Employer”), which provided care for 7 vulnerable adults with learning difficulties (“the Residents”).

Various concerns were raised by colleagues about VM’s conduct at work. The Employer investigated. VM resigned before the disciplinary procedure had completed. A disciplinary hearing took place in VM’s absence. The Employer referred VM to DBS.

Relevant people include (and are referred to as follows):

The DBS submit that Residents DL and LP experienced particular vulnerability at material times:

DL [32] [75] (male) was in his late 40s. He had limited mobility. He used a wheelchair, operated by staff. He was unable to stand independently. He was meant to have 2:1 staffing for all transfers, with the use of a hoist and sling. He was at risk of and from falls. He should have been transferred into his chair for all activities and mealtimes.

LP [33] [79] (female) was in her mid-to-late 50s. She faced particular risks and issues relating to choking. She required supervision when eating and drinking. She was considered safer sat on a chair at the dining table, rather than in a wheelchair, but sometimes needed encouragement to make that transfer. She should remain upright, for at least 30 mins, after oral intake.

References in square brackets [] are to page numbers of the 204 page bundle of evidence provided by the DBS.

In chronological order, the most notable events that took place were as follows:

VM started work at the Employer [30].

Concerns raised, about VM, by colleagues SJR and GH [46].

Further concerns raised [46].

Interviews conducted with: SJR [59], DH [65], GH [61], KC [67], LE [69], LC [70], KB [74].

VM suspended [32].

Disciplinary hearing held (in VM’s absence) [32].

VM’s email to the Employer [101].

Written outcome from disciplinary hearing [49]: several allegations “upheld; matter to be referred to DBS [52].

Referral to DBS [35].

DBS early warning letter [17].

DBS information request to local authority [127].

VM’s email to the Employer [108].

The Employer’s response [108].

Further particulars supporting local authority’s request [137].

Written representations on behalf of the Appellant in respect of the minded to bar letter (“the Representations”) [92], with supporting documents.

DBS letter (“the Final Letter”) [120] to VM setting out the Decision (to be read alongside the “Barring Decision Summary” [144], which collates the more detailed rationale of the DBS decision-maker).

VM’s response to the Final Letter [125].

VM’s application received by UT [2], including appeal grounds [5].

UT directions (received on 06.08.22 [174]).

DBS filed/served submissions in response to the application [178].

UT directions [186].

UT directions [190]: permission to appeal granted.

Written observations provided by VM’s new representative [196].

UT directions [201].

The Final Decision Letter from the Respondent dated 20 April 2022 notified the Appellant that it was including her on the Children’s Barred List and vulnerable Adults’ Barred List.

The findings of relevant conduct made by the DBS were that the Appellant (described as ‘you’):

left LP alone in her bedroom for most of the day

inferring that a staff member required 'Femfresh'

complaining about your personal life

The DBS went on to conclude that the Appellant’s conduct amounted to Relevant Conduct within the meaning of the Act, and that, in all the circumstances, it was appropriate and proportionate to include her on the Children’s and Adults’ Barred Lists.

The Final Decision Letter stated as follows:

In her Grounds of Appeal (his “Reasons for Appealing” document) enclosed with her notice of appeal, the Appellant provided grounds of appeal. These were set out in the ‘reasons for appealing’ section (Section D) of her notice of appeal dated 10 May 2022. The Grounds make clear that the Appellant challenged the DBS’s barring decision but did not make clear that she disputed each of the DBS’s findings of relevant conduct. The Grounds stated:

During the permission hearing in September 2023, the Appellant made clear that she did challenge each of these findings. She submits that each of the five findings was based on a mistake of fact.

She relied in part on the Representations she made in this regard to the DBS prior to the barring decision – in particular her email dated 11 February 2022 at page 92 of the bundle:

In addition, the Appellant stated and argued at the oral permission hearing (‘OPH’) on 25 September 2023 that:

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

On 25 September 2023 the Appellant was granted permission to appeal in respect of her grounds of appeal.

The DBS relied on written evidence from witnesses and transcripts of interviews contained in the bundle of evidence it filed and served which contained 204 pages. It contained the evidence relied upon by the DBS in making the barring decision and in defending the appeal.

The evidence on behalf of the DBS included transcripts of interviews with those witnesses from the Home and the Employer and correspondence from the local authority. The material also included the record of interview with VM at the Investigatory Meeting (‘IM’) with the Employer.

As we note, none of the DBS’s witnesses made formal witness statements, gave oral evidence or were cross examined – their evidence was untested hearsay. This is a matter to take into account when considering the weight it is to be given and its reliability.

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

The Appellant relied upon her notice of appeal and the submissions of fact she made at the OPH together with that she gave at the hearing.

The initial grounds of appeal (“the Grounds”) were supplemented by those presented at the permission hearing [190] (‘the Additional Grounds’). The Additional Grounds were then, in effect, reiterated, with some further content, in a document called “observations” from VM’s new representative [196]. The UT had indicated [201] that it was minded to take the content of the latter as VM’s evidence in chief.

However, at the hearing, with the UT’s permission, the Appellant supplemented her Grounds and Additional Grounds with evidence of fact given orally at the appeal hearing.

Despite our findings that the evidence given denying the allegations is not reliable nor credible in relation to most of the key issues in dispute, we summarise the Appellant’s oral evidence. In summary she stated as follows.

The Appellant disagreed with the barring decision and the findings of relevant conduct – she believed that the accusations were false. She had been in the care sector for a long time and not had any issues. She did not understand why she had been barred when no previous complaints had been made against her in the same place. Following the HR meeting she had had with her Employer (probably the documented discussion on 2 March 2021) she had nothing but good supervisions coming up to and before going on annual leave. Then she found out this was happening.

She thought some of the accusations were made up because she went in as a deputy manager and had done things to upset some of the staff and then they decided to make false accusations against her.

She had not left LP out in the bedroom to eat by herself – she had sent staff to assist LP while she (VM) would stay in the dining room. As a deputy manager she was needed to monitor the dining room and staff. She understood why LP could not eat in her room by herself as there was a choking hazard and potential that she would choke or die in hospital. The risk assessment stated someone was to assist her with special equipment as she could not hold a spoon or knife herself. She sent DH to assist her to eat – and as far as she knows, DH went and she took the tray up and took it in the dining room. She (VM) could not leave the dining room as other residents were there and eating. She (VM) was not responsible for taking charge of feeding LP.

PW was taken from her room and supported out of her bed. She (VM) did not take service users to their rooms and put them in pyjamas at 3pm. The only time she did that was when PW called her district nurse who was worried about bed sores, so she (PW) needed to get her in bed for a couple of hours in the afternoon then get up from there. This was on advice from district nurses. PW came back out for tea time at about at 5pm and that was to manage any risk of bed sores.

She (VM) also instructed a member of staff to put YS in bed despite being asked to assist. When she (VM) went into her room, YS was screaming at staff to assist and trying to scratch staff and she (VM) asked staff to leave her alone to calm down. She did an incident form and debrief because there was a risk of physical harm. She (VM) then went back 10 minutes later and spoke to YS and she agreed that she would get up for lunch at 12pm and this meant she got up at 12pm.

On any unspecified date she did not falsify MARS sheets nor say that medication had been administered when it had not been administered. She did not pre-sign the records. She knew the consequences of doing so and that there was a second checker - there was a second person coming in to check it had been done properly. They would have noticed any false record and she would have been in trouble. The consequences of falsified medication records were that one could give the wrong medication to a resident or not give them anything and the person could end up in hospital or even die.

On any unspecified date she did not falsify daily notes or record events prior to the events taking place. She would not know what was going to happen and she would not have done that. Also, there were no specific dates to the allegations so could not answer to what was written and when.

She had some issues with the staff and relationship breakdowns. Four of the staff were related to each other and she had split some staff up due to previous bullying of new staff and that did not go down well.

She did not make inappropriate comments and gestures nor mention menstrual cycles nor fem fresh. She did not complain about her personal life, make hand gestures nor swear about staff behind their backs. She had not done any of those things nor did accept the complaint about personal life and her talking about it in front of residents. As far as she was aware, there was no policy or law forbidding her from talking about her personal life (with staff). There were no occasions on which she made hand gestures behind people’s back. She did not know the ‘tosser’ gesture but it could have been her waving.

The allegations took place during Covid when the Home was understaffed. It should have been 4 staff during the day and two at night but typically there were only 2-3 staff during the day.

She believed that the core allegations of relevant conduct and the barring had impacted on her life. She had been working in the care sector since she was 15 years old and it was the only job she had ever done. She was good at what she did and this enabled her to get where she did as deputy manager. She was an advocate for service users right and the barring had damaged her reputation. She was quite a caring person. It had impacted upon her and impacted upon her children and her grandchildren.

She has a Special Guardianship Order in relation to her two grandsons and they are doing ok. Her daughter has recently had another baby and was in a mother and baby unit. The baby would need to be placed with someone else if the outcome of the assessment goes against her daughter. She has care of the baby’s other two siblings. She would not want her baby grandchild to end up in care, the baby should be with her and her other grandchildren (under a Special Guardianship Order). If that does not happen, she does not know where the baby would be placed and this would impact on her (VM) for all her life.

Following barring, she has since found alternative work as a room attendant at a hotel and that is what she is doing at the moment.

The Appellant was cross examined during the hearing and denied the allegations of relevant conduct. Mr Lewis suggested that each of the findings of relevant conduct was accurate and VM had committed them. He put each of the relevant pieces of written evidence to her which was contained in the bundle and suggested her account was neither reliable nor truthful. She denied all the allegations put to her in cross examination. The Appellant was also cross examined by Mr Lewis in relation to all other evidence.

In relation to the proportionality of the barring decision, the Appellant gave evidence agreeing with everything she had written in the notice of appeal, Grounds and Additional Grounds. She believed that her appeal should be allowed so that she could engage in regulated activity with children and removed from the barred list.

We address the proportionality of the decision to include her on the CBL and ABL in the discussion section below.

It goes without saying that all written and oral evidence given subsequent to the barring decision 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 and give our reasons therefor. In summary, we have come to the conclusion that the Appellant’s oral evidence was not substantially reliable nor credible for the reasons we give within the discussion section. We found her denials of committing the relevant conduct to be largely unreliable and lacking credibility for the reasons we give in the discussion section below.

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

There are, broadly speaking, three separate ways under Part 1 of Schedule 3 to the Act in which a person may be included in the CBL or ABL, which can generally be described as: (a) Autobar (for Automatic Barring Offences), (b) Autobar (for Automatic Inclusion Offences) and (c) Discretionary or non-automatic barring.

The third category applies in this case. The appeal concerns discretionary barring where a person does not meet the prescribed criteria (has not been convicted of specified criminal offences), but paragraph 3 of Schedule 3 to the Act applies.

Paragraphs 3 and 9 of Schedule 3 to the Act, sets out the provisions in relation to “relevant conduct”. It provides that, following an opportunity for and consideration of representations, DBS “must” include a person on the List if: (i) it is satisfied that they have “engaged in relevant conduct”; (ii) it has reason to believe that they have been (or might in future) be “engaged in regulated activity relating to children (or vulnerable adults)”; and (iii) it is satisfied that it is “appropriate” to include them.

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

‘Relevant conduct’ is defined under paragraphs 4 and 10 of Schedule 3 to the Act as set out in the Appendix. Paragraph 4(1) of the same, sets out the meaning of “relevant conduct”. It includes: (i) “conduct which endangers a child / vulnerable adult or is likely to endanger a child/ vulnerable adult”; (ii) “conduct which, if repeated against or in relation to a child/ vulnerable adult, would endanger that child/ vulnerable adult or would be likely to endanger him”. Paragraph 4(2)/10(2) of the same, provides that conduct “endangers a child / vulnerable adult if” among other things it: (i) “harms” a child / vulnerable adult; or (ii) puts a child / vulnerable adult “at risk of harm”.

An activity is a “regulated activity relating to children” for the purposes of paragraph 2(8)(b) of Schedule 3 if it falls within one of the subparagraphs in paragraph 1 of Schedule 4 to the Act; that provision broadly defines “regulated activity” and includes, in relation to children, “any form of teaching, training or instruction of children, unless the teaching, training or instruction is merely incidental to teaching, training or instruction of persons who are not children”.

Section 4 of the Act provides:

on any point of law;

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 [DBS]6 under subsection (6)(b)–

As underlined above, the Applicant may appeal against the barring on the ground that the DBS has made a mistake:

However, for these purposes “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))

The only issue in this appeal therefore is whether there was a material mistake of law or fact in including the Appellant on the CBL and ABL.

In Khakh v Independent Safeguarding Authority [2013] EWCA Civ. 1341 the Court of Appeal stated:

“18 …A point of law…includes a challenge on Wednesbury grounds and a human rights challenge. But it will not otherwise entitle an applicant to challenge the balancing exercise conducted by the ISA [ now DBS ] when determining whether or not it is appropriate to keep someone on the list. In my view that is plain from traditional principles of administrative law but in any event it is put beyond doubt by section 4(3) which states in terms that the decision whether or not it is appropriate to retain someone on a barred list is not a question of law or fact. It follows that an allegation of unreasonableness has to be a Wednesbury rationality challenge i.e. that the decision is perverse.”

At para 23 the Court said of the DBS duty to give reasons:

“23.I would accept that the ISA must give sufficient reasons properly to enable the individual to pursue the right of appeal. This means that it must notify the barred person of the basic findings of fact on which its decision is based, and a short recitation of the reasons why it chose to maintain the person on the list notwithstanding the representations. But the ISA is not a court of law. It does not have to engage with every issue raised by the applicant; it is enough that intelligible reasons are stated sufficient to enable the applicant to know why his representations were to no avail.”

Despite the exclusion of ‘appropriateness’ from the Upper Tribunal’s appellate jurisdiction, it is “empowered to determine proportionality” - B v Independent Safeguarding Authority [2012] EWCA Civ. 977 - see the appendix for further details.

In CM v DBS (2015) UKUT 707 the following proposition was cited with approval:

The jurisdiction for the Tribunal to consider a challenge based on a mistake of fact was considered in PF v DBS UKUT [2020] 256 AAC where a three-judge panel stated at [51]:

The Court of Appeal has further considered the mistake of fact jurisdiction recently in DBS v RI [2024] EWCA Civ. 95 and confirmed that PF represents the correct interpretation of the UT’s fact-finding jurisdiction at [28]-[29]:

PF should also be read in the light of the judgment in DBS v AB [2021] EWCA Civ 1575 where Lewis LJ, for the Court of Appeal, stated at [43] and [55]:

Therefore, the UT has a full jurisdiction to identify and make findings on the evidence heard as to whether there has been a mistake of fact. An assessment of risk however is generally speaking for the DBS, as the expert assessor of risk, and what is and is not a fact should be considered with care.

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

Thus, the role of the Upper Tribunal on an appeal is to consider if the DBS has made a mistake on any point of law or in any finding of fact. It cannot consider the appropriateness of listing (see section 4(3) of the Act). That is, unless the decision of the DBS is legally or factually flawed, the assessment of the risk presented by the person concerned, and the appropriateness of including him in a list barring him from regulated activity with children or vulnerable adults, is a matter for the DBS.

If the Upper Tribunal finds that DBS made a mistake of law or fact, as described in section 4(2), section 4(6) requires the Upper Tribunal to either:

After AB the usual order will be remission back to the DBS unless no other decision than removal is possible on the facts found.

The Appellant gave evidence and made oral submissions in support of her appeal which we have incorporated and addressed above and below.

The Appellant’s brother, as her representative, made submissions as to why the appeal should be allowed. He relied on the Grounds and Additional Grounds as set out above, together with her oral evidence. He submitted that her evidence was reliable and credible. She had an unblemished and long standing career working in the care sector and her character references attested to her good character. He also contrasted this with the evidence relied upon by the DBS which was written hearsay, from untested witnesses which was hearsay. This was in contrast to the direct and tested evidence the Appellant had given. He argued that the DBS witnesses had reasons to make up their accounts as the Appellant had managed them and put them on performance review.

Mr Lewis made submissions on behalf of the DBS in resisting the appeal many of which we agree with and adopt in our reasoning below.

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 her appeal (which was not available to the DBS at the time it made its Decision).

The evidence that was before the DBS when it made its Decision included the factual Representations made on behalf of the Appellant together with some character references. The factual evidence given during the hearing, denying the allegations, were in similar terms to the Grounds and Additional Grounds of appeal on which permission was granted. We have summarised all of this above, including the Appellant’s evidence in chief.

We make findings of fact on the balance of probabilities as set out below.

In light of these findings, 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 (see PF at [51]):

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, it consisted of handwritten or typewritten notes of answers given to questions 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 her give oral evidence.

We are not satisfied that the Appellant was a reliable and credible witness in respect of most of the findings of relevant conduct. We set out our reasoning for this in the section below before addressing the specific grounds of appeal (particularly the mistake of fact grounds in relation to the findings of relevant conduct).

In essence, we are satisfied that the Appellant’s evidence was inconsistent with the contemporaneous evidence and a number of witnesses who gave evidence against her (primarily colleagues - staff at the Home and the Employer). Her written and oral evidence to the Tribunal was also internally inconsistent and contradicted the earlier more contemporaneous accounts given to the Home / her Employer and in her Representations to the DBS.

We found that the Appellant’s answers in cross examination tended towards a bare or flat denial and the assertion that all the witnesses the DBS relied upon were wrong. She maintained that her behaviour was satisfactory at all times. In light of our findings, this demonstrated a lack of insight or an inability to make any reasonable concessions – particularly when the nature of the denials was implausible.

We acknowledge the stresses the Appellant was working under in the care sector and particularly under the circumstances and conditions of Covid – the Home and staff were under real pressure, in part as a result of short staffing.

Nonetheless, we are satisfied that the core findings of relevant conduct are made out given: the number of witnesses, the consistency, detail and corroboration they provide and the number of allegations of relevant conduct, all undermine the Appellant’s account. Many of the witnesses (the Appellant’s colleagues) directly observed events rather than simply relying on hearsay reports from residents. For the reasons the DBS, submitted, we are satisfied that the witnesses upon which it relied were not in conspiracy together. Some of the witnesses were not even alleged by the Appellant to be in conspiracy against her but were accepted to be ‘independent’. The essential and central findings of relevant conduct that the Appellant had pre-written entries on the MARS sheet and daily notes were established and supported by additional evidence to that of the two witnesses whom the Appellant particularly impugned.

There was a cluster of allegations of misconduct against the Appellant, their nature varied but there were some core consistencies. There were many examples of the Appellant’s neglectful or harmful attitudes in her conduct and expressions towards vulnerable residents. These actions placed the residents at real risk of harm and unnecessary restriction of their liberties.

It was not a matter of all witnesses saying the same thing but there was credibility in the breadth and detail of their evidence and the slight variations between it. This was extremely unlikely to have come about due to a conspiracy or false or malicious allegations inspired by a grudge based on the Appellant being an unpopular manager whose performance management of staff made her enemies. We specifically reject the general claim by VM of a malicious conspiracy orchestrated against her by some of the witnesses as improbable as considered further below.

The allegation of a conspiracy by two co-workers was an argument raised, in general, by VM. It was essentially levelled against GH and SJR. However, we are satisfied on the balance of probabilities that there has been no intentionally false evidence given by the two witnesses, whether as a result of a conspiracy or otherwise:

We are entitled to consider all relevant evidence, including evidence which VM may be referring to as “hearsay” and have considered its weight carefully. We are satisfied that the DBS was entitled to prefer the accounts of others over VM’s account.

A similar argument was raised, in relation to four members of staff who are said to be related. VM does not make it clear which people are being referred to but two appeared to be co-workers caring for residents and one of the others being a chef who described themselves as related or as a ‘cousin’.

There was also a reference, in VM’s email to DBS after the Decision was communicated to “the admin” being a “cousin” of SJR. It is unclear what the other family relationship is purported to be.

Again:

The DBS found that VM failed to support LP, in line with the relevant plan/guidance, in that VM left LP in her bedroom to eat meals and left her alone there for most of the day [120]. The DBS maintains that it made no mistake of material fact. Its findings were supported by the balance of the evidence.

VM denies the allegations/findings relating to LP. In particular, VM states [196] that LP would not have been left in her room, alone, as she could not manage and needed help – VM would, she asserts, have had to be there. However, in an earlier communication [92], VM relied on a different point: that she would have sent someone else to be with LP (as VM would have been leading the shift and told by management to not overdo it after a return to work). In the Additional Grounds, VM also seems to contend that if the Residents were left (by her) in their rooms for long periods, it would have been for necessary reasons relating to Covid.

We are satisfied that there was no mistake of fact in this finding of relevant conduct and it is established on the balance of probabilities for a number of reasons.

First, there is the record of the account provided by DH:

Second, there is the record of the account provided by GH:

Third, there is the record, from LE’s IM [69], that the Residents are “in their rooms” on VM’s weekend shifts.

Fourth, according to the note of VM’s IM, when it was (in a broad sense) put that she had not followed guidelines and left residents to eat in their bedrooms alone, VM made only a less-than-emphatic denial [80]: “not as far as I am aware”.

Fifth, there is the timing/nature of VM’s resignation before the disciplinary hearing [98]. We consider it is mildly supportive of a conclusion that VM had indeed committed misconduct alleged but did not want to attend the disciplinary hearing because she recognised her evidence on her denying the allegations was not accurate. No medical evidence has been provided to support her case. There was less incentive for her to attend the internal disciplinary hearing and challenge the allegations when she could resign and find another job instead. This is in contrast to appealing the barring decision which would prevent her working in any regulated activity – there was greater incentive to give evidence on the appeal before us.

Sixth, the assertion in the Additional Grounds about VM having always been present with LP is similarly improbable, in all the circumstances and against the wider body of evidence.

Seventh, in an email to the Employer on 05.05.21, VM alleged that SB (and others) had left LP in her chair, “when [LP] doesn’t have capacity” [105]; that claim, that LP lacked capacity, would tend to undermine any argument by VM, when made, that LP had, in fact, expressed a desire to remain in her room.

Eighth, VM did not deal directly (and/or did not deal persuasively/sufficiently) with this allegation in her Representations.

Ninth, the assertion in the hearing before us and in the Additional Grounds about Covid appears to be new. If it was a true and adequate explanation of what happened, VM would have raised it in her IM and/or during various other times when she set out her position (to the Employer and/or to DBS). It is not accepted as a reason for her misconduct in all the circumstances but in any event, the undoubtedly stressful situation during Covid and understaffing at the Home, would provide mitigation for the conduct and not a defence.

We reject the Appellant’s Representations, Additional Grounds and oral evidence denying these findings for the reasons set out above.

For all these reasons, we reject this ground of appeal. We are satisfied that there was no mistake of fact in the Respondent’s findings of relevant conduct and they are established on the balance of probabilities for the number of reasons set out above. The DBS made no material mistake of fact and was entitled to arrive at the factual conclusions it did.

VM, challenges the two other sub-findings DBS relied on in concluding VM failed to support service users in line with plans/guidelines: (iii) taking service users to their rooms at 3pm and putting them in pyjamas and night pads; and (iv) instructing a staff member [DH] to leave a service user [YS] on her bed, despite being asked by DH to assist in moving YS to a wheelchair.

In relation to (iii), the evidence in support of DBS’s finding included:

In relation to (iv), the evidence included, in addition to the above, the following:

We reject the Appellant’s Representations, Additional Grounds and oral evidence denying these findings for the reasons set out above.

For all these reasons, we reject this ground of appeal. We are satisfied that there was no mistake of fact in these findings of relevant conduct and they are established on the balance of probabilities for the number of reasons set out above. The DBS made no material mistake of fact and was entitled to arrive at the factual conclusions it did.

The DBS (and the Employer [50]) concluded that VM had completed both (b) daily notes and (d) medication administration records (“MAR Sheets”) before the relevant actions would have actually been taken.

It is common ground that neither should be done prior to the relevant tasks having been completed and that such conduct would be inappropriate. It would, among other things, inject risk that medication (or treatment/activity) is recorded as having occurred when, in fact, it had not (where things did not, for one foreseeable reason or other, transpire as anticipated). That, in turn, would place the individual at risk of harm.

The evidence in support of the finding that VM, more than once, completed the daily notes prematurely and inappropriately included:

The evidence in support of the finding that VM, on more than one occasion, completed the MAR Sheets prematurely and inappropriately included:

The evidence supported and continues to support its conclusion (and was not limited to GH and SJR). We reject the Appellant’s Representations, Additional Grounds and oral evidence denying these findings for the reasons set out above.

For all these reasons, we reject this ground of appeal. We are satisfied that the DBS made no material mistake of fact in these findings and they are established on the balance of probabilities.

The DBS made only a limited finding in relation to the use of a hoist in relation to DL. It gave VM the benefit of the doubt in relation to VM using it inappropriately (i.e. on her own) but it considered it likely VM had instructed LE to use the hoist, on his own, with DL.

DBS submits that it made no material mistake of fact. The evidence in support of its conclusion included:

Notwithstanding this evidence and the DBS, we are satisfied that there is a mistake of fact in this finding, having heard all the evidence.

On the balance of probabilities, we accept the Appellant’s oral evidence given at the hearing that she had attended recent training at the home where it was confirmed that only 1:1 support was required for using the tracking hoist. We are satisfied on the balance of probabilities that she believed it was appropriate for herself and other staff to use the tracking hoist on their own. Even though this defence was not raised at the time in 2021, the Appellant had relied upon this account consistently since April 2022 and there was only one witness to countermand her word on this. There was no evidence presented to rebut the fact of the training taking place at the Home.

We find this finding of relevant conduct does contain a material mistake of fact – in the sense that we accept the Appellant believed that staff had been authorised to use the tracking hoist alone. We accept she believed it was permitted by the Home or Employer, and at least the Appellant had reasonable grounds for this belief. Therefore, we accept she did not promote bad practice in others or use the hoist herself in way contrary to requirements by using it without 2:1 staff support.

Having found in favour of this ground of appeal, we are not satisfied that this finding of relevant conduct was material to the ultimate barring decisions. We are satisfied that the DBS would inevitably made the same barring decisions even if it had not made this mistake of fact. We return to this below.

The DBS made a finding of relevant conduct at that VM made inappropriate comments/gestures and that, at least some of those, had been done in front of Residents.

There were a number of sub-findings that the Appellant’s specific comments/ gestures included: (i) talking about her menstrual cycle/ (iii) complaining about her personal life; (ii) implying that a colleague [DH] needed “femfresh” (i.e. a well-known brand of intimate skin care products for women) because she smelled; and (iv) using a hand gesture in relation to a colleague [NB] behind her back.

In relation to the findings that the Appellant had talked about her menstrual cycle and comments/personal problems:

In relation to the femfresh comment:

In relation to the hand gesture:

We are satisfied that there was no mistake of fact in relation to these findings and, on the balance of probabilities, that the Appellant’s evidence (both written and oral) was unreliable on these points. She did make the comments and gestures.

We are satisfied that there was sufficient evidence to support the overarching finding and sub-findings on the balance of probabilities and there was no mistake of fact. We reject the Appellant’s Representations, Additional Grounds and oral evidence denying the findings for the reasons set out above.

Nonetheless, a question arises as to whether any or all of these factual findings do constitute relevant conduct as a matter of law – causing harm or a risk of harm to vulnerable adults.

The DBS submits that they do because if the words were spoken or gestures made in the presence of vulnerable adults the comments and gestures would or might cause them emotional harm.

However, most of these allegations were not said to have taken place in front of residents. To the extent that they occurred in front of residents rather than staff alone, we are not satisfied that they in fact caused harm or a risk of harm to vulnerable adults (or if repeated in front of them, to children). Although they were clearly inappropriate comments, that does not render them relevant conduct. We accept that, to the extent that the Appellant made the comments or gestures in front of residents, rather than staff, they might be capable of constituting relevant conduct. However, there was no evidence from the residents or staff that the residents were in fact upset by any of the comments or gestures (to the extent they witnessed any). In summary, there is insufficient evidence from which to infer that these types of comments or gestures would in fact cause a risk of harm to adults or children and there is no evidence they did in fact do so.

We therefore find there was a mistake of law in this finding. Nonetheless, again, we find that this mistake of law is not material to the barring decision. It is inevitable that the DBS would have made the same barring decisions based on the relevant conduct findings in a. b. and d. and the inappropriate conduct (even if not relevant conduct) in relation to this finding (e.). The error of law is not material to the barring decisions made.

We reject the following further grounds of appeal as raised by the Appellant in her Representations, Grounds and Additional Grounds. We are satisfied that they do not give rise to any mistakes of fact or law in the DBS’s barring decision.

There were complaints raised about VM by colleagues. There was, at least, the one raised with SB [80-81].

The fact that a “documented discussion” took place about previous concerns might be considered to be analogous to an HR-type intervention. To the extent VM is meaning to refer to external complaints (raised by service users or their families etc), or to other HR issues previously in VM’s career, there is little information in relation to such things in the Bundle but DBS made no material mistake of fact. There would appear to be nothing to indicate DBS proceeded on the basis there were previous conduct-at-work issues which were held against VM. For example, the allegations relating to a theft of morphine at work, years earlier, were expressly not considered by DBS (i.e. they were not held against VM) [158] and they were not proved.

We reject this ground of appeal because it demonstrates no mistake of fact or law.

We are satisfied that it cannot, fairly/sustainably, be said that the investigation conducted by the Employer was inadequate: the Employer did not complete its procedure as fully as it might ordinarily have done, because of VM’s resignation in April 2021. VM resigned on 8 April 2021 before the process completed and did not attend the disciplinary hearing. Nor, as a result, was there any appeal process. Nor was there a claim/hearing in an employment tribunal (despite apparently being advised by solicitors [109] and ACAS [102]). The Appellant did not allege constructive dismissal or unfair dismissal based upon the procedure followed by the Employer or pursue any claim of discrimination against the Employer.

It appears that VM has given different and inconsistent positions in relation to the resignation: in an email to the Employer on 05.05.21, VM, having just received the outcome of the disciplinary hearing, she claimed to have not received a date for the hearing and argued that (“protocol says”) she should have been invited “a second time” [102]; but more recently, in the Additional Grounds, VM states that she “did not attend the disciplinary hearing as she had already decided to resign” [193].

In any event, the same would not, in itself, be sufficient to render DBS’s subsequent decision unlawful. The DBS made its own independent decision, as a statutory decision-maker, and came to a different conclusion to the Employer in relation to some specific matters.

We reject this ground of appeal because it demonstrates no mistake of fact or law.

The Employer’s findings are contained in its letter dated 30 April 2021. The letter included the following:

There is no obligation on DBS to accept the findings arrived at by an employer in the course of internal workplace disciplinary proceedings. On the contrary, the obligation on DBS is to consider the matter independently and arrive at its own judgment on the relevant facts and evidence. That is what DBS did.

The DBS findings were very largely consistent with the Employer’s findings. Where it departed from the Employer’s findings, it did so by recording adequate reasons. DBS came to different findings which assisted VM, as well as those which did not.

We reject this ground of appeal because it demonstrates no mistake of fact or law.

We are satisfied that DBS was aware of and did take into account the information relating to VM’s previous career record; that DBS considered, and had due regard, to the “positive character references” [172] [122] provided with the Appellant’s Representations, including those referring to parts of that career background (and, necessarily, including the one from SS).

We have considered the same career record and character references when making our own findings of fact.

We reject this ground of appeal because it demonstrates no mistake of fact or law.

This is not a sustainable ground. The allegations/findings were sufficiently clear and understood, without express reference in the framing of allegations by DBS to specific dates. Standing back, and considering the whole matter objectively, there was no or no sufficient procedural or other unfairness resulting.

The Appellant was obviously able to fully answer all the allegations in her Representations, Grounds, Additional Grounds and oral evidence. There was no suggestion that she was unable to understand the nature of the allegations nor be able to answer them.

We reject this ground of appeal because it demonstrates no mistake of fact or law.

Even, taking into account the mistake of fact in relation to the third finding of relevant conduct (c.) and mistake of law in relation to the fifth (e.), it was not a “perverse” decision by DBS in all the circumstances to bar VM from working with vulnerable adults or children.

There is a high bar for perversity/irrationality challenges and we are satisfied it was inevitable that the same decision would have been reached based upon the other three findings of relevant conduct.

We have also considered proportionality of the barring decision. 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:

are they no more than are necessary to accomplish it?

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).

We are satisfied that each of questions a)-d) should be answered in favour of the barring not being disproportionate.

On a reasonable and objective view, we are satisfied that the DBS was entitled to conclude that it was appropriate and reasonably necessary to bar VM in order to achieve its (important and) legitimate safeguarding aims. The DBS expressly carried out the “balancing act” exercise required in question d).

Further, on the factual findings made and upheld by us (on the basis that the conduct amounted to “relevant conduct” under the Act) the DBS was entitled to include VM’s name in the ABL and CBL. This remains the case irrespective of her private rights/interests in general and in relation to matters regarding her grandchildren. DBS’s legitimate aims, and those of the wider safeguarding regime, remain in the public interest. The need to protect vulnerable groups adequately, outweighed VM’s private rights. In the absence of any other (sufficient) protection, there was no less-restrictive option available to DBS which would have achieved its legitimate aim(s).

We are satisfied that the DBS was entitled to consider that the Appellant presented a risk of harm to vulnerable adults (and a risk of harm if repeated in respect of children) at the time of the decision. Her lack of reliability, insight and acceptance at the appeal hearing regarding the incidents confirmed that it was not irrational for the DBS to decide that she posed a risk of repeating similar acts within regulated activity and such a risk existed at the time of the barring decision. Barring was therefore a proportionate decision with regard to that risk.

We are satisfied that the DBS was entitled to conclude that VM, on the evidence available at the time and now heard, was an individual unsuited, at the time of the Decision, to be trusted to work with vulnerable adults and children in regulated activity. While it may be possible for VM to change her attitude/ approach, and/or to control her emotions/impulses, etc, to the extent that she might be regarded at some point in the future as a tolerably low risk, the DBS was entitled to conclude that VM had/has not demonstrated that she had the necessary insight or tools to do so at the time of the barring decision.

The DBS also expressly had regard to the adverse impact that a barring decision would or may have on VM’s Article 8 rights to private and family right – in particular the impact on her employment opportunities to work with vulnerable adults or children.

We reject this ground of appeal – there was no error of law - it was not irrational nor disproportionate to place VM on the ABL and CBL.

Paragraphs 18 and 18A of Schedule 3 allow for reviews of the barring decision to be conducted if fresh evidence comes to light and is presented by the Appellant or upon the expiry of the minimum barring period in this case.

VM relies, specifically, on the contention that the Decision placing her on the CBL “may interfere” with her ability to become a special guardian for her third grandchild (who, it is said, may be taken into care if she is not permitted to remain under her mother’s care). Special guardianship is a family court order that places a child or young person in long-term care with someone other than their parent(s). The person(s) with whom the child lives with will become the child's special guardian.

At the hearing, VM explained that she was already a special guardian for two of her grandchildren. It was originally unclear but is now established that the reference to a third grandchild is to a different grandchild of VM, than the two she has already attained such positions in relation to. If this third grandchild does not remain placed with VM’s daughter, then it is understandable that VM very much wishes that she becomes the baby’s special guardian.

We accept that Appellant’s evidence that she has had the care of two of her grandchildren under SGO with the support of the local authority (‘LA’) for a number of years. We have not been told of any difficulties in that arrangement nor that there is any sign and or indication of the need for further intervention or that it may come to an end.

The evidence in the Bundle indicates that, in fact, DBS refused to share the relevant barring information with the local authority [143], despite express requests. This was on the basis that special guardianships and similar arrangements are, not included as regulated activity under the Act. As such, it is difficult to argue that the Decision has had – or is likely to have – any adverse impact on such matters.

Further, even if DBS had shared information in relation to the barring Decision with the local authority, the outcome would not necessarily prevent VM from achieving her aims regarding of remaining or becoming a special guardian to her grandchildren.

We note that section 53 of the Act and paragraph 1(5) of Schedule 4 to the Act include fostering as regulated activity relating to children. However, the same does not apply to Special Guardians (‘SGs’) under a Special Guardianship Order (‘SGO’). Acting as a SGO is not a regulated activity. It remains activity carried out within family and personal relationships that is not regulated activity by virtue of section 58 of the Act. Therefore, notwithstanding our decision confirming the DBS’ barring decisions, this does not prevent the Appellant remaining a SG in relation to the first two grandchildren and becoming a SG in relation to the third grandchild.

The local authority (and family courts), in making any relevant decision regarding VM’s special guardianship roles in relation to her grandchildren, would have very different aims, priorities, and procedures, etc, than that of the DBS. Matters relevant to the DBS may not be to the local authority (and vice versa). The DBS is concerned with risk to vulnerable groups in the course of regulated activity; the local authority would be interested in private and other family matters. Special Guardianship operates under an entirely different statutory framework.

We are acutely aware that whether or not the Applicant is or becomes a SG is not a matter for us - the Local Authority and Family Courts are ultimately the decision makers. Our jurisdiction is confined to the barring decision and risks to children and adults in regulated activity (not activity in family and personal relationship under section 58 of the Act). Therefore, we would not want our confirmation of the barring decision in respect of children to be seen in any way as support for any interference with or prohibition on the Applicant remaining or becoming a SG.

We have had regard to different evidence and statutory tests. We are also required by law to respect the expert assessing role of the DBS as to whether the Appellant poses a risk in relation to regulated activity with children (which does not include the role of a SG) and cannot examine the appropriateness of inclusion of the Appellant on the children’s barred list. We note that the relevant conduct by the Appellant that we have upheld was committed against vulnerable adults and not in relation to children (however we have accepted the Appellant’s inclusion on the CBL on the basis of the risk of repetition and harm caused to children in the course of regulated activity).

If asked to decide whether the Appellant may act as the SG for the third grandchild, the Local Authority and Family Courts, to the extent they see or take into account this decision, will be guided by very different considerations in making their decisions. These may include the Appellant’s availability and conduct when caring for the first two grandchildren. We emphasise that our decision-making context and jurisdiction is very fundamentally different and solely in relation to of regulated activity. The starting point is recognising that the barring decisions do not prevent VM acting under an SGO but an independent decision will be made by others.

In relation to the statutory tests:

The tests for “regulated activity” were met.

There was “relevant conduct” in relation to findings and sub-findings a, b and d. We have found that there was a mistake of fact in relation to finding c. and mistake of law in finding e. but the mistakes were not material – because the DBS would inevitably have come to the same decision to place the Appellant on both barred lists.

The DBS’s decision that it was “appropriate” to bar VM, in all the circumstances, having due regard to the importance of DBS’s legitimate aims was outside our jurisdiction. Nonetheless, the barring decisions were neither “irrational” nor “disproportionate.

We have found that there were material mistakes of fact in relation to the third finding of relevant conduct (c.) and mistakes of law in relation to the fifth finding of relevant conduct (e.). Nonetheless, given the seriousness of the other three findings that have been proved not to contain any mistake (a., b. & d.), it is inevitable that the DBS would have made the same decision to bar the Appellant. The mistaken findings are 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 established findings of relevant conduct.

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

We are satisfied while there were some material mistakes of fact and law in the findings of relevant conduct. However, we are satisfied there was no material mistake of fact or law in the barring decisions. The DBS would inevitably made the same decisions irrespective of the mistakes. We are therefore satisfied that the DBS did not make mistakes of fact or mistakes of law which were material to the ultimate barring decisions on 20 April 2022 to include the Appellant on the CBL and ABL.

We therefore dismiss the appeal:

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

We conclude for the purposes of section 4(5) of the Act that there were no mistakes of fact nor mistakes of law which were material to the ultimate DBS decision to include the Appellant on the CBL and ABL.

The Decision of the DBS in April 2022 to include the Appellant on the CBL and ABL is confirmed.