VA, who is the Appellant in these proceedings;

DS and any other person mentioned in the documents or during a hearing;

Decided following an oral hearing on 5 August 2024.

On appeal from the Disclosure and Barring Service (DBS from now on)

History and background

On 4 April 2023, DBS included VA in both the children’s barred list and the adults’ barred list in respect of its finding that:

The judge directed an oral hearing of the appeal, which took place before us on 5 August 2024.

The legislation

We set out the provisions of Schedule 3 SVGA relating to children; those relating to vulnerable adults are essentially the same. Paragraph 9 is the equivalent for vulnerable adults.

Section 4 SVGA contains the Upper Tribunal’s jurisdiction and powers.

About VA

VA was born in 1974 and has provided care for vulnerable adults in a variety of roles and contexts over 21 years. In 2022, she was a Senior Care Assistant at a residential home where she had been employed since March 2019. She also volunteered with her local church’s youth team and, during the pandemic, provided support to the elderly in the community.

VA has numerous qualifications: a BSc in Health and Social Care; City and Guilds Diploma Level 3 in Adult Social Care; NVQ Level 3 in Social Care; Level 1 award in Understanding Customer Service; Level 3 award in Education and Training; Level 2 award in Mental Health; Level 2 award in Counselling (listening skill); and Certificate in Assessing Vocational Achievement. No doubt, she has also attended numerous training sessions on the whole range of topics relevant to the work she had undertaken in her different roles.

It is an important feature of this case that VA does not feel comfortable talking about masturbation and avoids using the word, preferring to say ‘fingering’ or ‘scratching’. Her feelings are based on her religious belief.

About DS

At the time, DS was 79 years old. According to VA, she did not have dementia and had capacity. We have a copy of her care plan dated 17 May 2022. VA told us that there had been a more recent plan by the time of the incident in July 2022. That would be in accordance with normal practice. She had some allergies and type 2 diabetes, and was prone to skin infections. There is also reference to medication for pain. She enjoyed masturbating, although she was prone to doing so when in view of others. The incident on 8 July 2022 occurred when VA came to DS’s room and found that she was masturbating in front of a mirror.

The evidence

The principal evidence against VA consists of a voicemail message left on the telephone of a district nurse. VA was working on the 8pm to 8am shift on 7/8 July 2022. She was carrying a work phone in her pocket. Somehow pressure was applied, causing the phone to ring the last number dialled, which was that of the district nurse. The call went to voicemail. This happened three times in all, at 01:13, 01:18 and 01:20. When the nurse heard the messages, she reported them to the police, who identified the number from which the calls came and the person who had been carrying the phone at the time.

The police listened to all three calls and made a copy of the earliest. They did not copy the other calls because they were unclear and of no evidentiary value. VA has complained that the other calls might have contained evidence that provided context to the first call. In particular, she said that one of the calls might have caught a later conversation in which DS apologised to VA for how she had behaved. The reality, though, is that there are no copies of the other calls.

We have a copy of the recording and have listened to it, individually and collectively, numerous times. We also have VA’s note of the recording. The bold passages are VA’s comments that set the context. The rest is a partial transcription of what was said by VA and DS. It is not complete. There are exchanges or occasional words and phrases that we have been able to hear, but were not included. There are also parts that are unclear, as a result of VA and DS talking over each other. We have already mentioned VA’s reluctance to talk about masturbation, which is why she is referring to scratching.

We now set out VA’s note. We have made an addition in brackets, with an approximate time on the recording. Some of the remarks are repeated more often that VA has transcribed.

That was VA’s note. There are references in the evidence to another transcript of the recording. Mr Webster argued that this was a false impression caused by the inappropriate use of language. At best, he suggested the document referred to as a transcript was an email from the police, which contained some words used by VA in the recording. We are satisfied that there was a transcript. We rely on the record of the investigation meeting on 15 July 2022 (pages 125-126). The interviewer ‘read out the transcript’ and then asked VA questions as she ‘read transcription line by line’. Then she ‘played the voicemail transcript’. VA says ‘Oh Jesus’ as ‘transcript played on laptop.’ Later, the interviewer ‘handed a copy of transcript back to VA’. We accept Mr Webster’s point that some of the language seems to confuse recording and transcript, but we find confirmation for our view in the judgment of the employment judge who dismissed VA’s claim for unfair dismissal. The judge wrote:

The existence of a transcript was relevant in argument because of the evidence that certain words were or were not heard on the recording. There is disagreement whether DS said she was ‘frightened’ and whether VA called DS ‘stupid’ or just told her to ‘stop it’. In the end, we have decided to rely on what we are able to hear on the recording. Having taken account of the recording as a whole, our conclusions do not depend on whether the disputed words were used or not.

We need to say something about the manner in which VA spoke to DS. VA was dismissed on 3 August 2022 for being ‘aggressive toward the service user’ (page 161). That is not directly in point for us, but VA’s voice does rise and fall during the recording. The same happened during the hearing before us. We also note that VA was told to ‘stop raising your voice’ during the investigation meeting (page 126). At times on the recording, VA spoke over DS and her voice was loud enough to prevent us hearing what DS was saying. Our conclusion is that the tone, pitch and volume of VA’s voice reflected the intensity of her feelings and reactions to what was happening. Almost from the start, we heard a mixture of distaste, irritation and annoyance with what DS was doing. We also heard, quite properly, insistence that VA was not going to be drawn into helping DS masturbate.

The incident did not stop when the voicemail message ended. VA told us that DS went to her bed and VA helped her into bed. Before VA left the room, DS apologised to VA, who said it was OK and put the whole episode behind her.

DS was spoken to by the general manager and the police. It is difficult to know what to make of what DS said to them. The only conclusions we can draw are: (a) she did not criticise VA; (b) some remarks could refer to the incident – she said all she wanted was a cuddle; and (c) DS may have been thinking of other incidents or occasions – certainly some of the things she said cannot relate to the incident before Upper Tribunal.

Finally, DS did not make any complaint about VA’s behaviour, no painkillers were administered during the shift, and no sign of bleeding was noted in the records. Those records were concerned with effects of incontinence, so the staff would not have carried out vaginal examination.

Did VA ignore DS’s requests for help with her pain?

We find that VA did.

VA found DS masturbating. Her immediate reaction was focused on that. Whatever DS said, VA reacted on her perception of the situation. She was not open to the possibility that there might be something more going on. She interpreted what DS said in the light of her perception and reacted accordingly. Almost immediately – probably as soon as she realised what DS was doing - her tone showed her irritation and her language was dismissive, referring to masturbation as ‘nonsense’. She did not show any sign of trying to engage with what DS was saying, no sign that she questioned her initial perception. DS was trying to convey a message that VA was resistant to hearing. VA’s focus on herself intensified when DS grabbed her and tried to involve her in masturbating, and more so when she took hold of VA with her right hand, the one she had been using to masturbate.

What was the message VA was trying to convey? We accept VA’s point that she did not have to take the use of the word ‘pain’ in isolation. She had to take what DS said as a whole. That is how we have interpreted what DS was saying, but the recording shows that VA did not try to understand what DS was saying in that way. There is no sign that she understood the message. DS said she was in pain. She persisted with this, repeating herself, almost as if she was arguing with VA to try to convince her. She said that she wanted help and that she did not know what to do. And she said she was ‘bleeding like billy-o.’

VA told us that she was aware that DS was someone who would complain. She was aware that DS had complained about another carer, saying that he had applied cream into her vagina rather than on her thigh. What we heard on the recording was not someone taking a cautious approach in order to avoid any cause for DS to make a complaint.

Was VA required to report and record the incident?

DBS found that VA had failed to accurately report and record the incident. VA did not report the incident. Whether that amounted to a failure depends on whether she was under a duty to record and report what happened.

We accept and find that VA set out accurately what the staff had been told in her witness statement for the hearing:

We do not, though, accept VA’s evidence that she was not required to record or report the incident on 8 July because it involved masturbation. The managers were telling the carers to respect DS’s privacy and that masturbating was not of itself something that needed to be recorded. We do not accept that the managers told the carers not to record anything involving masturbation.

We have made that finding for the following reasons.

First, VA did not mention this guidance until her witness statement for the hearing, which she signed on 29 July 2024. When she was asked during the investigation meeting why she did not report what happened (page 126), her answer was that she had forgotten and been distracted by two urgent incidents. She said the same during the disciplinary hearing on 1 August 2022 (page 158), saying she would have ‘done a distressed behaviour’ report if she had gone back to her desk. The most obvious response for VA to make to the questions was surely that she had been told not to record it. Instead, she said twice that she had been distracted and forgot, even adding that she would otherwise have made a record.

VA told us that she was not able to concentrate on the questions. She told us that she was still grieving the loss of her father earlier in 2022. She had also been told that the investigation would relate to something that happened on 8 June. She was only told the correct date (8 July) at the start of the investigation meeting. Despite the effect those points would have on her mental state, which we do not underestimate, her answer would have been instinctive if she had understood the guidance in the way she now claims.

Second, no one involved on the management side in the investigation and disciplinary process mentioned it. As with VA, they would have been aware of this guidance if it had been given.

Third, it is improbable that managers would give such guidance in view of DS’s propensity to complain and make allegations. Respecting DS’s privacy was one thing, what happened in the early hours of 8 July was something very different. DS was masturbating, but she was also expressing that she was bleeding and in pain, and she was asking for help. She was also trying to involve a carer in assisting her to masturbate. Both were serious matters that the managers and other carers had an interest in knowing about in order to give DS the care she needed and to protect the staff from false allegations.

Fourth, if the managers had told staff not to talk among themselves about DS masturbating, VA’s own evidence showed that word was spreading. In her witness statement for the hearing, she said:

Proportionality

Ms Anderson argued that DBS’s decision was disproportionate and therefore in error of law. This is how she identified the relevant considerations in her skeleton argument:

We make these comments on those considerations:

As to (a), we have not accepted the facts as asserted by VA.

As to (b), we accept that there was no prosecution.

As to (c) and (f), we do not accept that barring is a ‘last resort’. It is required when the statutory requirements are satisfied. The legislation does not contain a ‘last resort’ test. The same is true of the application of the Care Act 2014. DBS has to apply the statutory rules for the regime it operates. There was no evidence given that VA’s conduct could be remediated by training or supervision. We would have needed evidence given that the cause of what happened is deeply embedded in VA’s faith.

As to (d), we accept that this is an isolated incident, but it is important to remember that VA has over two decades of experience, is well qualified and properly trained. Despite that, the incident still occurred. That speaks of the strength of the underlying causes. They are not confined to this particular incident. There is still the risk of repetition.

As to (e), we accept that DS said this, but it is not clear whether she had in mind the incident we have to consider.

As to (g) and (i), we accept the references as genuine and sincere. We do not wish to belittle VA’s qualities or achievements, but the references do not tell the full story.

As to (h), we accepted that VA has expressed remorse and reflected on her behaviour, but in a jurisdiction that protects children and the vulnerable, it would take time and evidence that we have not seen to show that VA has overcome the intensity of her feelings, even revulsion, that we heard on the recording.

As to (j), we accept this.

As to (k), we accept that these are the consequences of including VA in the barred lists. They will inevitably be present in almost, if not every, appeal.

The Court of Appeal has decided that it is not for us to undertake the assessment of appropriateness, which includes VA’s Convention right to a private and family life: see B v Independent Safeguarding Authority (Royal College of Nursing intervening) [2013] 1 WLR 308 at [14]-[24]. The Court adopted this analysis of that right:

The aim of protecting children is of sufficient importance to justify limiting VA’s Convention right under Article 8 (question (a)) and barring her from working with children is rationally connected with that aim (question (b)). That leaves two questions: is barring no more than necessary to accomplish that aim and does it strike the right balance?

We do not accept that the points made by Ms Anderson, individually or collective, show an error of law in DBS’s decision. They make the points that can properly be made in her favour, but they have to be set in the context of the points to be made against VA. DBS relied on its findings of fact and its analysis of the underlying causes of the incident. We have dismissed the appeal on mistakes of fact, relying on our assessment of the evidence. With those facts still in place, we cannot find any error of law in the balance struck by DBS in its assessment of VA’s Convention right.