GR v Disclosure and Barring Service

The Appellant (also referred to as ‘GR’) appeals to the Upper Tribunal against the decision of the Respondent (the Disclosure and Barring Service or ‘DBS’) dated 29 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 9 January 2024 in respect of the grounds raised by the Appellant in the notice of appeal and at that permission hearing. In summary, the grounds of appeal were that each of the two 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 and vulnerable adults.

We held a remote oral hearing of the appeal by CVP video software on 10 July 2024. The Appellant appeared and participated in person by giving oral evidence and making submissions.

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

In broad summary, the background is as follows (page references are references to the hearing bundle prepared by the DBS).

GR was at the material time a residential childcare worker. She was experienced having been a childcare worker for 21 years and well qualified for the role.

In January 2019 she began work for X services for children as a residential therapeutic childcare worker at a looked after children’s home (“the Home”). The Home housed children and young persons who were looked after by X on behalf of the local authority. The children were highly vulnerable being previously subject to neglect or abuse.

In November 2020, an incident occurred which led to GR receiving a first and final written warning from X services. The warning is contained in a letter dated 10/11/20 at pp72-73. The notice set out X’s finding that while she was working at the Home GR allowed J, a young girl and looked after person, to use GR’s mobile phone; gave J a gift in the form of a toy (2 harry potter wands and a monkey); bought J food (fish and chips) at the same time she bought some food for colleagues; dropping food to a member of her own family whilst on shift and with a young person in her car (the allegation was that she dropped some food off at her (GR’s) house for her daughter while J was in the car with her).

It is of note that there was a further allegation that GR had allowed J to visit GR’s home address. This was found by X not to be substantiated due to insufficient evidence. The warning letter does state however that “it was clear that you had shared so much personal information with the young person in question that she was able to give detailed information about parts of your home such that suggested that this could have been the case, which clearly demonstrated that you had inappropriately shared personal details with her”.

The matters found proven were considered serious breaches of X’s policies and procedures. Principally because it was a blurring of professional boundaries and conduct which may have given the impression of preferential treatment to the child or others.

The outcome was a final written warning, not dismissal, because GR’s actions were not maliciously motivated, she was genuinely remorseful, she did not intend J to form an attachment to her and she was aware that any recurrence would result in dismissal.

GR was also required to undertake training. She was given the right of appeal against the final written warning, which she did not exercise.

GR then moved jobs to work at a different Home that was operated by X services so she remained X’s employee.

On 9 March 2021 GR had a regular supervision session with her supervisor HP. Within the notes of the session a service user, N, is referred to.

N was a very vulnerable then 16-year-old looked after child. His care plan noted that he was on a SEN/EHCP [Statement of Education/Education, Health and Care Plan]. The plan also noted under ‘what I might need help with’, that:

“N suffers with anxiety which he has been offered a CAMHS [Child and Adolescent Mental Health Services] consultation where it was identified there were underlying issues and was also referred to Eating Disorder. N has also been prescribed anti-depressant medication by his GP for his anxieties but hasn’t taken any previously. N may need support with this and supporting him to learn what helps him to regulate such feelings. N may also need support with eating healthy and nutritional meals and to support in support from Eating Disorder specialists”- p. 178.

The notes of 9 March 2021 supervision session state “N- [GR] is building a positive relationship with N. N is a pleasure to be around and understands why he is at the home because of his ways. N girlfriend being pregnant has made him more responsible and is thinking of the future”- p.187.

On 14 April 2021 another allegation of misconduct arose. This was an allegation by N. The allegation was that he had gone to GR’s home and smoked cannabis she had given him. The allegation was made by N to another employee - PS - on 14/4/21 -p.57.

On 15 April 2021 the allegation was discussed with the county’s Local Authority Designated Officer (‘LADO’) and a LADO form completed. LADO updated X services that the allegation had been referred to police but that this did not meet their threshold for investigation at this stage. LADO confirmed that and internal investigation was the next course of action and that an update be given following the outcome.

GR (who was in her notice period having resigned from her employment previously on 8 April 2021 due to health and personal reasons) was suspended from work.

A disciplinary investigation report was produced dated 20 April 2021 by an employee of X services, KH - p.48-55. Various pieces of evidence were considered including the logs that showed that GR did take N out on trips in the car although there is no detail as to what purpose the trips were for. On one occasion GR was dropped off at a bus stop close to her home by an ex-staff member and N was present in the car. The ex-staff member confirmed this.

The report also attached a note taken on 19 April 2021 with N and HP, the deputy manager, of a discussion between her and N -p.56. N described GR’s house (lounge on the right, kitchen on the left, garden with shed and a wall, stairs in front of the entrance). N confirmed he smoked cannabis there after GR had driven him to her house. N told HP that GR’s daughter and daughter’s boyfriend was present. He said he smoked the drugs in the garden. N said to HP that on the way back to the Home GR asked N to tell PS, if he asked, that they had been out for a long drive.

A disciplinary hearing took place on 20 April 2021 with GR and CV - the Home manager. GR denied the allegation. The logs noted that GR had been on regular car journeys with N. N was able to give a description of the layout of GR’s home.

On 22 April 2021 GR was sent a letter stating that she would have been dismissed from her employment on the basis that the allegations concerning her conduct towards N were substantiated. Although the letter states that she would have been dismissed had she not already been in the currency of her notice period, this may amount in law to a dismissal as the notice period was cut short with immediate effect-p.63. In any event nothing turns on the legal effect of the ‘dismissal’ letter.

X services referred GR to the DBS on 29 April 2021-p.36-39

On 29 May 2021 the DBS wrote to GR notifying her of the referral -p.27-28. A minded to bar letter was sent to GR on 2 March 2022- pp30-34. The allegations of relevant conduct were that:

The letter states inter alia:

In respect of the issue of transferability of her relevant conduct to inclusion on the ABL, it stated

Submissions were invited from GR in writing. GR made written submissions on 19 April 2022. She denied the allegation of supplying cannabis stating that the date on which it was supposed to have happened was unclear, the report stated that the allegation could not be founded by evidence, no other staff members witnessed evidence of cannabis use by N and she has a 21 year unblemished record in the industry-p.75-78.

The Final Decision Letter from the Respondent dated 29 April 2022 notified the Appellant that it was including her on the Children’s and Adults’ Barred Lists p.91-96. The allegations of relevant conduct were both found proven.

The two findings of relevant conduct made by the DBS are as summarised above and specifically:

The DBS went on to conclude GR’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.

On 21 July 2022 GR appealed the barring decision to the Upper Tribunal.

By a decision made on 9 January 2024 and promulgated on 23 January 2024, the UT granted permission to appeal. The basis for the grant of permission was that based on what GR told the UT at the oral permission hearing (‘OPH’), it was arguable that the DBS had in fact made mistakes of fact in concluding that she had committed the alleged relevant conduct towards service users J and N.

In her Grounds of Appeal (the “Reasons for Appealing” section) enclosed with her notice of appeal, 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). She stated:

The Appellant provided character and professional references in support of her appeal.

On 9 January 2024 the Appellant was granted permission to appeal in respect of her grounds of appeal. The Upper Tribunal refined the grounds in relation to the alleged mistakes of fact when granting permission to appeal following the OPH on 9 January 2024. During the OPH, the Appellant challenged each of the findings of relevant conduct. She submits that each of the two 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 – see her letter dated 19 April 22 and enclosures at pages 75-90 of the bundle.

In relation to both findings of relevant conduct - the UT took the view that it was arguable that DBS made a mistake of fact and there was a mistake of law– the DBS made a disproportionate decision to bar.

The DBS relied on written evidence from witnesses and notes or transcripts of interviews contained in the bundle of evidence it filed and served which contained 224 pages. It included all the evidence relied upon by the DBS in making the barring decision and in defending the appeal as well as the material provided by the Appellant.

The witnesses relied on by the DBS included those from the X Services, and colleagues or managers from the two Homes GR worked in together with the record of interviews conducted by her employer with GR and statements taken from her colleagues.

As we note, none of these witnesses on behalf of the DBS made formal witness statements containing statements of truth, nor gave oral evidence nor were cross examined – their evidence was therefore untested hearsay. This is a matter to take into account when considering the weight it is to be given and its reliability.

This was the evidence relied upon by the DBS in making the barring decision and in defending the appeal. The Appellant relied upon her written submissions and statements sent to the DBS and oral evidence given to the Tribunal together with her professional / character references.

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

The Appellant relied upon her notice of appeal and the submissions of fact she made at the OPH. She supplemented this with her evidence of fact given orally at the appeal hearing before us which was consistent with the evidence she gave at the OPH.

The Appellant was cross examined during the hearing and denied the allegations of relevant conduct. It goes without saying that all subsequent 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 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.

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

The Appellant was cross examined by Mr Serr in relation to all of her evidence. He suggested that both of the findings of relevant conduct were accurate and there was no mistake of fact. He put each of the relevant pieces of documentary evidence to her and suggested her account was neither reliable nor truthful. She denied all the allegations put to her in cross examination.

Nonetheless, we found her denials to be 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 paragraphs 3 and 9 of Schedule 3 to the Act applies.

Paragraphs 3 and 9 of Schedule 3 to the Act, set out the provisions in relation to inclusion on the CBL or ABL. 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/vulnerable adults”; and (iii) it is satisfied that it is “appropriate” to include them.

Under paragraph 3(3) or 9(3) of Schedule 3 the DBS must include the person in the children’s or adults’ barred lists 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.

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”.

‘Relevant conduct’ is defined under paragraphs 4 and 10 of Schedule 3 to the Act as set out in the Appendix. Paragraphs 4(1) and 10(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”. Paragraphs 4(2) and 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”.

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, an Appellant 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:

direct DBS to remove the person from the list, or

remit the matter to DBS for a new decision.

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.

Mr Serr 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 with care, both that which was before the DBS and that provided by the Appellant as part of her appeal (must of 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 obviously did not include all the factual representations and evidence we received from the Appellant during the hearing. Those factual representations and evidence, denying the allegations, were in similar terms to the matters contained in the notice of appeal dated April 2022 and OPH (but more detailed).

We make findings of fact on the balance of probabilities as set out below. In light of these, we 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 witnesses relied upon by the DBS who did not. Their evidence was written and untested, it consisted of handwritten or typewritten notes of answers given to questions or 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. We set out our reasoning for this in the section below when addressing Grounds 1 and 2 (claiming mistakes of fact in relation to the two findings of relevant conduct). We find that the Appellant’s explanations for why colleagues and a child under her care (N) have made up false allegations against are implausible – inherently unlikely. They are also unsupported by any contemporaneous or documentary evidence.

Further, we are satisfied that the Appellant’s evidence is inconsistent with the contemporaneous evidence and a number of witnesses who gave evidence against her. Her written and oral evidence to the Tribunal was also internally inconsistent and contradicted the earlier accounts given by her to X services, her former employer, in relation to Finding 1. The Appellant’s explanation for the first incident in November 2020, which she has relied on since April 2022, also deviated and was inconsistent with the more contemporaneous account in relation to Finding 1 that she gave to colleagues at the Home and her employer. The Appellant’s contemporaneous account in relation to Finding 1 came close to a full admission to the relevant conduct.

The first finding of relevant conduct is that the Appellant:

In summary, the Appellant’s response to this finding in her oral evidence in chief was as follows. GR says that the food for J was purchased as part of an order for the staff paid for by J out of her pocket money. The Harry Potter wand was given to J temporarily out of the boot of her car and the other staff were aware and GR asked for it to be removed from J’s possession at night once she was asleep. J did not use GR’s phone to access Spotify - she just chose the music from GR’s phone. She did not drop off food for a family member on the trip when she had J in the car.

We are not satisfied that DBS made any mistake in finding that GR had committed this relevant conduct. We, like the DBS are satisfied “on the balance of probabilities” that the Appellant committed the relevant conduct, including all four sub-findings, as alleged.

In coming to this conclusion, we have taken into account the Appellant’s character and professional references that speak highly of her previously unblemished career in the care sector. This goes to her propensity to commit relevant conduct and her reliability or credibility when giving evidence. We also take into account that GR gave oral evidence and was tested under cross examination unlike the witnesses relied on by DBS. We have also taken into account the fact that there was no dismissal by the employer in relation to these findings.

Nonetheless, there are a number of reasons why we reject the Appellant’s evidence.

The first is the contemporaneous documentation supporting this allegation (at [64-73]).

The email of LR (team leader) at the Home to other members of staff dated 4/11/20 (some two days after the incident) supports the assertion that J was bought a meal and given toys by GR [64-65]. The email states as follows:

GR had an investigatory and disciplinary meeting the same day in relation to the allegations. Certain admissions are recorded in the note of the meeting with GR in respect of the food and toys on 4/11/20 (at [67]).

There was a further disciplinary interview with GR regarding the allegations. In the note of interview there are various other admissions by GR about letting J use the mobile phone and about giving J toys (she admitted it could look like favouritism and was horrified by her actions) [69-70]:

So far as the allegation of buying food for J was concerned, GR admitted to taking J for a ride in her car while she purchased food for the staff and purchased J a meal as well as giving her own daughter groceries enroute [70].

Following the disciplinary proceedings, GR’s explanation was considered in respect of these four sub-findings in respect of ‘J’, in November 2020. There was not any serious challenge to the facts by the Appellant at the time. They were largely admitted at the time and were the subject of a final written warning that was not appealed.

All four sub-findings were upheld by her employer (albeit that the fifth allegation of allowing J to visit GR’s house was not upheld). GR received a Final Written Warning and a training requirement on 10/11/20. The employer’s letter to GR stated [72-73]:

These reasons explain why the four sub-findings amount to relevant conduct – conduct which is likely to cause a risk of (emotional or psychological) harm to J, a vulnerable child.

This much was accepted by GR in her oral evidence to the Tribunal during cross examination.

GR was given the right of appeal against the final written warning, which she did not exercise.

GR therefore made extensive contemporaneous admissions and Finding 1 is supported by evidence from the team leader on the night.

We are satisfied that the subsequent denials/explanations given to the Tribunal by GR at the OPH and in her oral evidence in chief regarding the four sub-findings during the hearing are not reliable.

First, they are significantly inconsistent with the admissions she made in her more contemporaneous statements to her employer.

Second, when she was cross examined, GR, sensibly, accepted the account she gave at the time as being largely accurate and accepted her behaviour had fallen short.

Even during cross examination, GR did however continue to dispute that she ever handed J her phone in order to listen to Spotify, albeit that she accepted that she allowed J to choose the songs from her phone. She also continued to dispute whether J’s food was intended to be paid for her or by J – she stated that the intention was that she would be repaid from J’s pocket money.

However, given the contemporaneous admissions and inconsistencies in her oral evidence, we are not satisfied these denials are reliable on the balance of probabilities. We are satisfied that all four sub-findings of relevant conduct are established on the balance of probabilities.

We are therefore satisfied that the DBS has not made a mistake of fact in relation to the first finding of relevant conduct and the four sub-findings. We dismiss ground 1. There was no material mistake of fact in the DBS’s first finding of relevant conduct – the four sub-findings are established on the balance of probabilities.

The DBS’s second finding of relevant conduct was that:

We are not satisfied that DBS made any material mistake in finding that GR had committed this relevant conduct. We, like the DBS are satisfied “on the balance of probabilities” that the Appellant committed the relevant conduct, including the material parts of the finding of fact as alleged.

In coming to this conclusion, we have taken into account the Appellant’s character and professional references that speak highly of her previously unblemished career in the care sector. They go to her propensity to commit relevant conduct and her reliability or credibility when giving evidence. We also take into account that she gave oral evidence and was tested under cross examination unlike the witnesses relied on by DBS. We have also taken into account the fact that there was no action taken by the police against GR. The absence of any criminal proceedings or prosecution being instituted against GR in respect of the allegations in this finding is not determinative: it reflects the markedly higher standard of proof in such proceedings compared to the civil standard applied by the DBS and this Tribunal.

In her oral evidence to the Tribunal, GR denied the finding. A summary of her oral evidence at the OPH and during her evidence in chief during the hearing is as follows: GR says that N should have been supervised with 2 carers not 1:1 due to him making up false allegations; N had fabricated the allegations against GR because he was unhappy that GR had left the service without telling him; it was just his word against hers; she never took N to her home or allowed him to smoke cannabis; the dash cam and data from the car would have established that N never went to her house.

There are a number of reasons why we reject the Appellant’s evidence.

First, we are satisfied that N volunteered his two accounts of the alleged incident unprompted, relatively contemporaneously, to two different staff members and consistently. We are satisfied that the staff members’ records of N’s accounts are reliable and accurate.

N said the following unprompted to PS, a member of staff, on 14 April 2021 [52 & 57] which he took a note of:

N said the following to HP, a different member of staff, on 19 April 2021 who also made a note:

We are not satisfied that the fact N’s account is untested hearsay means it is unreliable. We are not satisfied that it lacks credibility – we are not satisfied N had any substantial motive to make up his account or lie. There is no independent evidence to support the suggestion that he was upset by GR’s resignation without notice.

There was nothing in N’s care plan to suggest that he had previously made false allegations or required 2:1 supervision. There were also contemporaneous notes to say that N and GR had got on well.

GR had already left the Home and N was not likely to have any further contact with her, so this is likely to reduce any motive to make up false allegations against her. This is reflected in the fact that he did not raise the issue until a minimum of 6 days after GR resigned. The assertion that N or the employer X has fabricated an allegation against GR [210] is unlikely. There was no need for N or X to do this - GR was in the currency of her notice period and was leaving her employment when the allegation arose.

We have also taken account N’s age and vulnerability (due to his conditions) but consider that the fact that he stated he did not want to get GR into trouble and was reluctant to be thought a ‘snitch’ supports the reliability of his account. N’s account also involved making damaging admissions as to his own use of prohibited drugs – again this reduces the likelihood it was fabricated.

The level of detail contained in the second account given by N to HOP and description of the interior of GR’s house are unlikely to be fabricated. The note was taken on 19 April 2021 by HP, the deputy manager, of a discussion between her and N [52 / 56]. N described GR’s home (lounge on the right, kitchen on the left, garden with shed and a wall, stairs in front of the entrance). N confirmed he smoked cannabis after GR had driven him. GR’s daughter and daughter’s boyfriend was present. He smoked the drugs in the garden. On the way back GR asked him to tell PS if he asked that they had been out for a long drive.

In respect of ‘N’ there is therefore a clear and detailed account given by him (repeated to two different managers PS and HP [56-57]). N’s ability to recall the layout of GR’s house (something which could be independently verified), supports his account. The internal part of GR’s home could not have been obtained from a view from the street.

The previous written warning received by GR which included consideration of an unproved allegation that GR took J to her house also provides some corroboration for the allegation. As does the record of trips taken with N in GR’s car and the lack of likely motive for N to lie.

There followed a disciplinary interview of GR with CV and LS on 20 April 2021 in which GR denied the allegations and which was recorded as follows [53]-[55]:

There was an investigation report dated 20 April 201 prepared by KH with a summary of findings at [50]-[51]. She concluded as follows:

As set out above, the disciplinary investigation report was produced on behalf of X services dated 20 April 2021 by a KH [48-55]. Various pieces of evidence were considered including the logs that showed that GR did take N out on trips in the car although there is no detail as to what the purpose of the trips was for. Further an ex-staff member confirmed that on one occasion GR was dropped off at a bus stop close to her home by an ex-staff member and N was present in the car.

There is no documentary evidence within the interview that GR asked anyone to check the dashcam/data from the car which would have proved that N did not attend at GR’s house [62]. Nor is there any evidence of a co-worker stating that N admitted to fabricating the allegation as GR asserted during the OPH [210]. We have considered whether N might have a motive to lie or the account might be unreliable as untested hearsay but rejected this for reasons given above.

We have considered a number of matters that might be seen to support GR’s credibility. She has consistently denied the allegation regarding N since it was first put to her and contemporaneously. She has not changed her account on any material matter. Nonetheless, the allegations in relation to Finding 2 are more serious than in relation to Finding 1 so there is a greater motive to conceal the truth.

We accept that GR did make reasonable concessions in cross examination in relation to Finding 1 during the hearing, albeit that she only did so after giving an inconsistent account in evidence in chief and after being directed to the contemporaneous documents where she had originally made admissions.

We have also taken into account that her former employer, X Services, found the allegation insufficiently evidenced (the ‘allegation cannot be founded on the evidence’) in the investigation report and pointed to some potentially exculpatory material (which we have underlined). Nonetheless, the former employer X did then go on to find the allegations ‘substantiated’ in its ‘dismissal’ letter dated 22 April 2021. In any event, it is for us to assess all the evidence afresh.

Sadly, we have decided that it is more likely than not that the account that GR gave us in oral evidence was neither reliable nor credible. GR never previously suggested to her employer that the description of the layout of her house given by N was inaccurate. She had that opportunity over a long time and could have given a sketch, photos or videos of her house layout to the employer, the DBS or to us if she wanted to confirm that the layout described by N was inaccurate.

In oral evidence she accepted she did once have a shed in the garden but now it was removed. She never volunteered a description of the layout until asked by the Tribunal. The description of the internal layout of the house that GR then gave to the Tribunal on questioning towards of her evidence was largely consistent with the description that N gave.

Ultimately, the allegation of bringing N back to her house was consistent with the previous allegations that she had done so with at least one other child (J). Our finding is also consistent with the fact that she crossed boundaries in relation to child J and did so again in respect of N.

There was no drug paraphernalia found on a search of N’s room and the account N gave of others being at GR’s house – such as D[] – accords with other references to there being a person called D[] who was in a relationship with GR. We consider it unlikely that N was so angry with GR at her leaving that he made a serious and false allegation against her.

Ultimately, on balance, we have found that the Appellant did not tell us the truth about taking N back to her house. We also find that once there, N did smoke cannabis at her house under her supervision and with her permission – GR allowed him to do so and they smoked cannabis together. Whether GR supplied the drug to N or not is not material to the decision to bar and we have come to no conclusion on this point, given the seriousness of the main finding. It is inevitable that the DBS would have come to the same decision to bar GR on the basis that she brought N, a 16 year old vulnerable youth in her care, back to her house, permitted him to smoke cannabis (a prohibited drug) under her supervision and they smoked cannabis together.

There was no material mistake of fact by DBS in making Finding 2.

We are sorry to make these findings because GR was undoubtedly under a huge deal of stress at the time. We accept her evidence about her family difficulties, the health of her own two children and her own mental health difficulties. We also note that the period November 2020 to April 2021 during the time of Covid restrictions, would have been a stressful time to work in children’s Homes and there may have been staff shortages and reduced support. GR was also playing an important caring role for others as a professional and a friend and that is all to her credit. She had a long and unblemished career in doing so. She appears to have been well intentioned and motivated to care for J and N, and we are satisfied that she did not intend to cause either of them any harm and even sought to ‘befriend’ them’. Nevertheless, even though she did not intend it, her conduct was misguided, breached professional guidelines and boundaries and exposed vulnerable children to a risk of harm.

We therefore dismiss this ground of appeal – there was no mistake of fact in Finding 2.

We are satisfied that both findings made by the DBS, are established on the balance of probabilities, do not contain material mistakes of fact and amount to Relevant Conduct within the broad definition permitted by the Act.

Given the findings of relevant conduct, it was not a “perverse” decision by DBS to have included the Appellant on the CBL and the ABL. There is a high bar for perversity/irrationality challenges to barring decisions and we are satisfied that the decision to bar was neither perverse nor irrational but one the DBS was entitled to reach.

The decision that it was “appropriate” in all the circumstances to bar GR is outside our jurisdiction to examine but we will always need to consider the proportionality of any barring decision.

We next consider if there was any mistake of law in the barring decisions on the grounds or proportionality.

In summary, 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 decisions being proportionate. There is no real question that the legislative objective of safeguarding vulnerable groups is sufficiently important to justify barring and that barring is rationally connected to protecting those groups.

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 GR in order to achieve its (important and) legitimate safeguarding aims.

On the fact of this case, having heard all the evidence, we are satisfied that barring is necessary and strikes a fair balance between GR’s right to a private life and the interests of the community. The DBS expressly carried out the “balancing act” exercise required and we have done the same. We are satisfied that the DBS was entitled to consider that the Appellant presented a risk of harm to children at the time of the decision. Her lack of reliability, insight and acceptance at the appeal hearing regarding the incident in Finding 2 confirmed that the Appellant posed a risk of repeating similar acts remained ongoing at the time of the barring decision in April 2022.

We also accept that, taken together with Finding 1 in respect of J in November 2020: (a) they show an escalation in misconduct and a failure to adhere to a warning; (b) the earlier sub-findings are similar in nature to the later conduct in that they are a failure to adhere to professional boundaries; and (c) there was already an allegation, albeit not one that was substantiated at the time, that GR had previously allowed J to visit her house.

Allowing N, a vulnerable 16-year-old in her care who was looked after and had been the victim of abuse or neglect, to smoke cannabis at her house under her supervision may have been capable of constituting a criminal offence (if proved to the requisite standard). More importantly, GR’s actions were likely to expose N to a real risk of physical, emotional or psychological harm. The fact that GR told N to lie to conceal the drug taking by asking him to tell PS, if he asked, that they had been out for a long drive is also concerning.

While the conduct was directed to children it was not ‘child specific’. GR has demonstrated a repeated failure to follow rules designed for safeguarding. She has encouraged or permitted N to break the law by smoking prohibited drugs together, conduct which if repeated towards a vulnerable adult (N was 16) would put them at risk of obvious harm. Her inclusion in the ABL contains no mistake of fact or law.

The DBS also expressly had regard to the adverse impact that a barring decision would or may have on GR’s Article 8 rights to private and family life– in particular the impact on her employment opportunities to work with children. GR has highlighted her long history in care and the impact of the barring on her [211]. We do not seek to underplay the impact of the barring upon her and upset it has caused her, particularly given GR’s previously long and unblemished professional history and the references that speak well of her. Thankfully she has been able to obtain alternative employment outside the care sector or other regulated activity. We accept that barring has significantly disrupted GR’s life.

In upholding the finding of fact that GR smoked cannabis in her own home with N, a vulnerable young person whom she was supposed to care for and asked N to lie about it if challenged, we are not satisfied that the decision is disproportionate.

As GR continues to deny Finding 2 (as well as initially seeking to unpick Finding 1 during evidence in chief which she had previously admitted to), she has demonstrated insufficient insight or self-reflection to establish that she does not pose a risk of repeating similar conduct. She has taken no other corrective actions to establish a reduced risk of causing harm and the passage of three years since the second incident (two years since barring) is not sufficient in itself to demonstrate a reduced risk.

While it might in principle be possible for GR to demonstrate a change of attitude/ approach, and/or insight and self-reflection, to the extent that she might be regarded at some point in the future as a tolerably low risk, GR had/has not demonstrated that she had the necessary insight or tools to do so at the time of the barring decision or now. Paragraphs 18 and 18A of Schedule 3 to the Act allow for reviews of the barring decision to be conducted if fresh evidence comes to light and is presented by the Appellant or on the expiry of the minimum barring period in this case.

Therefore, we are satisfied that when making the barring decisions, the DBS correctly concluded that no other measures were in place sufficient to adequately safeguard children or vulnerable adults from GR participating in regulated activity and committing further acts of misconduct/neglect etc.

We consider that barring was no more than necessary and struck a fair balance between GR’s rights and that of protecting the public interest in safeguarding vulnerable groups – it was therefore a proportionate decision having regard to the relevant conduct the Appellant had committed and the future risk she posed as at April 2022.

We are satisfied that the DBS was entitled to conclude that GR, on the evidence available at the time and now heard, should be barred from working with children or vulnerable adults in regulated activity. There was no mistake of law in the barring decisions.

As noted above, the issue of whether it was “appropriate”, in such circumstances, to place GR on the CBL and ABL 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 above.

We are therefore satisfied that the DBS did not make material mistakes of fact or mistakes of law when making the barring decision on 29 April 2022 to include the Appellant on the CBL and ABL.

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 material mistakes of fact nor mistakes of law in the ultimate DBS decision to include the Appellant on the CBL and ABL.

The decisions of the DBS to include the Appellant on the CBL and ABL are confirmed.