JW v Disclosure and Barring Service

This is an appeal against the decision (“DBS’s decision”) of the Respondent (“DBS”) dated 12 December 2022to include JW in the children’s and adults’ barred lists.

DBS’s decision was made under paragraphs 3 and 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (the “Act”). These provide (in very similar terms as regards both children and vulnerable adults) that DBS must include a person in the relevant barred list if

Under paragraphs 4 and 10, “relevant conduct” includes, amongst other things, conduct which endangers a child/vulnerable adult or is likely to endanger a child/vulnerable adult, or which, if repeated against or in relation to a child/vulnerable adult, would endanger them or would be likely to endanger them; and a person’s conduct “endangers” a child/vulnerable adult if she (amongst other things)

The letter conveying DBS’s decision (the “decision letter”):

Section 4(2) of the Act confers a right of appeal to the Upper Tribunal against a decision by DBS under paragraphs 3 and 9 of Schedule 3 to the Act (amongst other provisions) only on grounds that DBS has made a mistake

The Act says that “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)).

In response to case management directions permitting JW (following disclosure by DBS of documents held by it) to amend her “reasons for appealing” as set out in her application form for permission to appeal, JW’s solicitors submitted a “perfected grounds of appeal” document on 4 August 2023. This made a number of factual assertions:

Permission to appeal was given by the Upper Tribunal (Judge Citron) in a decision (the “permission decision”) issued on 5 October 2023. The reasons given in the permission decision were as follows:

“The grounds of appeal essentially rest on factual assertions by JW, to the effect that the key finding of fact on which DBS’s decision was based failed to take into account relevant and important contextual facts such as:

• it was not JW’s role to provide care for Miss X (see paragraphs 15 and 23 of the “perfected” grounds of appeal)

• only two female staff were permitted to change Miss X’s pad (see paragraph 28 of the “perfected” grounds of appeal)

• Miss X had caused serious physical injury to other members of staff (see paragraph 25 of the “perfected” grounds of appeal)

• JW held the door closed to protect herself and Miss X (see paragraphs 29 and 44 of the “perfected” grounds of appeal)

It seems to me arguable that factual assertions of this kind could be proved by JW on the balance of probabilities, and that, if they were so proved, that DBS made a mistake in the finding of fact on which the decision was based, and/or on a point of law, by omitting important and relevant context.”

JW provided a witness statement, dated 20 December 2023, with several “exhibits”; she also gave oral evidence at the hearing, and was cross examined by Mr Tabori.

On the day before the hearing, JW’s solicitors submitted a witness statement (dated that day, 21 May 2024) of Lisa Fletcher, who had worked at the same care home as JW, and in particular had worked with Miss X there. We were told that the reason for the lateness (case management directions had required details of the evidence JW intended to adduce, by late December 2023) was the difficulty in getting hold of Ms Fletcher.

We decided, at the hearing, to admit Ms Fletcher’s late evidence, and permit her to give oral evidence (via video link); our natural concerns about unfairness to DBS by reason of “ambush” were assuaged by the fact that Ms Fletcher’s statement largely repeated material from her already in the bundle (exhibits to JW’s witness statement included emails from Ms Fletcher of 6 and 12 December 2023); in substance, the “last minute” development was not the evidence itself, but the fact that Ms Fletcher was making herself available to give oral evidence, and be cross examined; overall, it seemed to us fair and just to allow this to happen, so that relevant evidence could be fairly tested.

The documentary evidence in the bundle included:

In this section we present some background facts that were not in dispute.

Miss X

JW was a woman in her early 50s at the relevant time. She was a “waking support worker” at the supported living home. Her shift started at 9 pm.

In this section we summarise JW’s evidence on more controversial matters and explain why, on the whole, we accept her evidence. As a backdrop to what follows, we generally found JW to be credible; it seemed to us that she was doing her best at the hearing to tell the truth; there was corroboration in the more-contemporaneous documentation for a good deal of what she said. On some matters, JW’s evidence was also corroborated by that of Ms Fletcher (to whose evidence we also accorded weight, as she too presented herself to the hearing for cross examination, and seemed to us generally credible). All this does not, of course, mean that we take as “proven”, everything that JW (or indeed Ms Fletcher) had to say: JW obviously had a personal interest in interpreting the events of, and leading up to, 14 June 2022 a certain way; and the events in question had occurred two years before the hearing, allowing memory to fade; we therefore reviewed her evidence critically, and noted with care the extent to which it was corroborated.

JW’s evidence was that her role at the home was principally to support not Miss X, but another service user in the home, Mr Y, whom she had cared for for some time, prior to the incidents in question involving Miss X. JW’s evidence was that Mr Y required “1:1” care/support during the night, to prevent him wandering into other people’s rooms; and that JW’s role was to provide that care for Mr Y.

We accept this evidence, noting that it was corroborated by an email from the care home’s service manager to staff, of 19 November 2021 (an exhibit to JW’s witness statement).

JW’s evidence was that Miss X was supposed to have “2:1” support for all personal care and that personal care was to be provided by female staff; hence, JW was not allowed to change Miss X’s pad when she woke in the night wanting it changed, because two female carers were required for that task (and no other female carer was available at the home, at night, at the relevant time). JW’s evidence was that she had not been “allocated” as a carer for Miss X (in part because she was not fully trained in managing a PEG tube). JW’s evidence was that, accordingly, she had not seen Miss X’s support plan, nor her “communication passport”, prior to the events in question.

Ms Fletcher corroborated JW’s evidence that Miss X required 2:1 personal care from female carers. Ms Fletcher’s statement also said this: “ … it was deemed and you [JW] were expected to see to Miss X because you were there, and Miss X was supposed to stay in bed all night, on occasions in which Miss X got up or required care, you were on your own and expected to deal with it, there was no support from management and on call would not always answer the call, or could be the other end of the country and haven’t a clue who Miss X was or anything about Miss X care.”

We again accept this evidence, noting that the care home management’s own “internal investigation summary report” stated that Miss X required “2:1” care. It seems to us that although JW’s principal responsibility was 1:1 care of Mr Y overnight, the management of the care home and JW had fallen into a ‘working practice’ of JW also checking in on Miss X when she woke at night (even though the management of the care home knew that JW could not administer personal care for Miss X on her own, was not trained in PEG-related matters, and generally had not been equipped to deal with Miss X).

JW’s evidence was that Miss X was known to grab, pull, kick and spit at staff; that she often expressed herself through violent behaviour; and that she had injured several staff members, included JW. Ms Fletcher gave corroborating evidence to similar effect. We accept this evidence.

JW’s evidence was that, on a small number of occasions including on 14 June 2022, Miss X had woken up in the night or in the early morning (whilst JW was still on shift), and indicated she wanted something; JW went in to see what Miss X wanted; it became clear that Miss X wanted her pad changed; JW indicated that she was unable to do this and Miss X would have to go back to bed and wait until the day shift for her pad to be changed; this upset Miss X and she began to lunge at JW, potentially hitting her; to distance herself from Miss X, JW left the room and held the door shut; she continued to tell Miss X to go back to bed; JW stood holding Miss X’s door closed this way for a few minutes.

We find it relatively straightforward to accept JW’s evidence, up to this point in the narrative. It is similar to what JW was recorded as saying in the 22 June 2022 disciplinary meeting minutes; it is different, in a few details, from accounts given, by JW and NJ, immediately after the 14 June 2022 incident; but we do not see these differences in detail as significant (or as materially damaging to JW’s credibility) and, moreover, we think the period of one week (14 to 22 June) in which JW was able to reflect, gather her thoughts, and present a cogent account, does not diminish the reliability of the account.

More difficult was what to make of the evidence of what Miss X’s response was, to JW holding her door closed for a matter of minutes. JW’s evidence was that, by holding the door closed, she was trying to, and did, de-escalate the situation; that she (JW) knew that Miss X was not harming herself (behind the closed door); that Miss X did go back to bed, because she knew JW was not “engaging”. In essence, JW’s evidence was her holding Miss X’s door closed “worked”, in that it calmed Miss X down.

We do not wholly accept JW’s evidence in this regard; we regard as credible the evidence that, in the 14 June 2022 incident, the door-holding ended with NJ, another care worker, stepping in and managing to calm Miss X (in other words, the door-holding did not “work” to calm Miss X). On the other hand, we do accept that JW’s intention was to de-escalate the situation; and that when she stood holding the door closed, she kept a listening ear out for any signs that Miss X was in danger or self-harming.

There was considerable questioning at the hearing on the written note of two of the questions in the “investigation meeting minutes” of 15 June 2022 (signed by JW as well as the care home’s service manager) (page 47 of the bundle), as follows:

“Q10:

service manager: Miss X has said you have held door multiple times?

JW – did do once as JW wasn’t allowed to change pad and Miss X kicked off so held door

Q11:

service manager - how often have you held the door?

JW – have held door before

Service manager – have you filled form out

JW – no

JW – third one – Miss X bang bang on door JW tried to put in her room Miss X tried to pull tube and JW held door”

DBS’s case was that the final entry above was an “admission” by JW that, in one of the door-holding incidents prior to 14 June 2022, Miss X had tried to pull out her PEG as a result of her distress at having her door held shut. JW denied making such an admission: her evidence, as noted at paragraph 25 above, was that holding the door closed “worked” to de-escalate the situation.

Our view is that little of any significance can be gleaned from the final entry in the note of “Q11” above, for a number of reasons:

The “reasons” section of the permission decision (reproduced at paragraph 8 above) explained why permission to appeal was given - in short, because it was arguable that DBS had made a mistake in its core factual findings, and/or on a point of law, by omitting important and relevant context. The permission decision gave four examples, based on the large number of factual assertions made in the “perfected grounds of appeal” document submitted by JW, of what these omitted relevant and important contextual facts could be. Accordingly, in this section of our decision, we shall address (1) whether important and relevant factual context was omitted in DBS’s core factual findings; and (2) whether in so doing, DBS made a mistake on a point of law or in a finding of fact on which its decision was based.

We note that the reasons given in the permission decision did not refer to the four enumerated grounds in JW’s “perfected grounds of appeal” document, but rather stated that JW’s grounds “essentially” rested on factual assertions indicating the omission of relevant and important contextual facts. We infer from this that, whilst not expressly restricting permission to the grounds set out in the permission decision’s “reasons” section, the permission decision did not find the enumerated grounds to be arguable, but did find there to be an arguable case within the factual assertions put forward by JW in her “perfected” grounds; and that it was fair and just in the circumstances to give permission on the basis of that arguable case, as spelt out in the permission decision.

For the avoidance of doubt, we consider it fair and just to decide this appeal on the basis of the issues identified as arguable in the permission decision: the parties had ample opportunity to prepare their cases following issuance of the permission decision, with accompanying case management directions.

For completeness, we will also give our decision on the four enumerated ground in JW’s “perfected” grounds document.

In our view, the relevant facts as regards the door-holding incidents are as follows: in the incident on the morning of 14 June 2022, and a handful of similar incidents in the preceding weeks,

In our view, DBS’s core factual finding about JW holding Miss X’s door closed, omitted important and relevant context, namely that JW was in a very difficult position given the following combination of factors:

It seems to us that a decision that omits important and relevant context for its core factual findings is potentially making a mistake

In this regard, we note the following from DBS’s “barring decision summary” (pages 105-136 of the bundle), the fullest record of the reasoning behind DBS’s decision:

The contrasts between the contents DBS’s reasoning, and our own factual findings, based on all the evidence in front of us, cited above, seem to us sufficient to show that the omission of relevant and important context in DBS’s decision was a material mistake (whether of fact or of law), in that it affected DBS’s reasoning to a significant extent. This is not a case where it can be said that even if DBS’s mistakes had not been made, its decision was bound to have been the same.

The conclusion just reached is sufficient for us to allow the appeal. For completeness, however, we set out below our views on the enumerated grounds in JW’s “perfected grounds of appeal” document:

Applying the test in DBS v AB [2021] EWCA Civ 1575 at [73], this does not seem to us a case where the only decision DBS could lawfully reach in the light of the law and the facts as found by us, would be to remove JW from the barred lists. DBS is the arbiter of “appropriateness” of listing and it is now for it to make a new decision as to whether it is appropriate to include JW in the barred lists, based on all the relevant facts, as we have found them.

For similar reasons, it seems to us fair and just in this case that JW remain in the lists, pending DBS’s new decision: it would be in no one’s interests, we feel, to direct JW’s removal, only to have her re-included upon a new decision by DBS. We trust that DBS will make the new decision as soon as it reasonably can.