JLA v Disclosure And Barring Service

The Appellant (also referred to as ‘JLA’) appeals to the Upper Tribunal against the decision of the Respondent (the Disclosure and Barring Service or ‘DBS’) dated 6 June 2023 to include her name on the vulnerable Adults’ Barred List (‘ABL’) pursuant to paragraph 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 14 February 2024 in respect of the grounds raised by the Appellant in the notice of appeal. In summary, the grounds of appeal were that each of the findings that the Appellant committed relevant conduct were based on mistakes of fact. The UT Judge also granted permission on a ground of appeal that there was an arguable mistake of law – the DBS made an irrational and / or disproportionate decision to bar the Appellant from working with vulnerable adults.

The Tribunal held a in-person oral hearing of the appeal at Leeds Tribunal centre on 22 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 Remi Reichhold of counsel. We are grateful to him and the Appellant for the quality of their written and oral submissions.

In a letter dated 21 October 2023 from its legal representatives, DLA Piper, the DBS made an application for various orders under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (‘the UT Rules’). The Appellant consented to and supported that application at the outset of the hearing.

The Tribunal made the following orders at the beginning of the hearing for the following reasons.

We made an order that there is to be no publication of any matter likely to lead members of the public directly or indirectly to identify the Appellant or any person who had been involved in the circumstances giving rise to this appeal (witnesses or complainants) pursuant to rule 14(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008. We were satisfied that the Appellant, should not be identified, directly by name or indirectly, in this decision but referred to as ‘JLA’ (or ‘the Appellant’). Having regard to the interests of justice, what is just and fair and in accordance with the overriding objective, and the individuals’ right to privacy under Article 8 of the Convention, we were satisfied that it was proportionate to make such an order and give such a direction.

Identifying the Appellant herself may also lead to the identification of any complainants or witnesses who are either vulnerable themselves or have an expectation of privacy. Revealing the identity of any of the witnesses or complainants to the public would be likely to cause the complainants and the witnesses (residents, carers, healthcare assistants or nurses in residential care homes) emotional or psychological harm as they themselves were vulnerable, the potential victims of harmful conduct, or they had an expectation of privacy. The Appellant has not been prejudiced by anonymising the witnesses – she has been aware of their identities throughout and has been able to identify them to answer their evidence and allegations.

Identifying the Appellant may lead to the identification of all the parties, complainants and witnesses who are to be anonymised / not identified by virtue of the other orders being made and who may otherwise be identified or linked to the Appellant by virtue of the evidence in the case.

Further, the Appellant is the subject of misconduct allegations which took place in a care home. We are satisfied that identifying her at this stage may lead to serious and disproportionate harm to her reputation and employment prospects (an interference with the right to private life under article 8 of the ECHR) when the barring decision of the Respondent is not published generally to the world. There is an expectation of privacy and legal prohibition that the name and identity of the Appellant as appearing on a barred list (and whomever is included on the barred lists) is not publicised to the world or generally (but is known by the Appellant, the DBS, and any other party who may seek to conduct a DBS check upon her eg. a prospective or current employer).

We rely on the further reasons explained in R (SXM) v Disclosure and Barring Service [2020] EWHC 624 (Admin), [2020] 1 WLR 3259.  In that case the victim wanted to know the outcome of the referral to DBS. The Administrative Court held: (a) disclosure was not consistent with the statutory structure; (b) refusing to disclose was neither unreasonable nor disproportionate; and (c) there was no positive obligation to disclose under the Article 8 Convention right. The public interest in the protection and safeguarding of vulnerable groups is sufficiently protected by the barring decision itself and identification of the Appellant’s name only to prospective employers or those otherwise entitled to obtain information regarding him from the DBS.

We therefore make an order prohibiting the disclosure of any information that would be likely to identify the Appellant, complainants or witnesses in the terms set out in the letter on behalf of the DBS dated 21 October 2023.

We also make an order under rule 14(1)(a) that no documents or information should be disclosed in relation to these proceedings that would tend to identify the Appellant or any person who had been involved in the circumstances giving rise to this appeal. Any documents sought to be disclosed would need to be redacted for identifying information as specified in the letter dated 21 October 2023.

We make a further order under rule 14(1)(b) and (2) prohibiting the publication or disclosure of any information or document which may lead members of the public to identify any of the individuals (witnesses and complainants) relied on in the Respondent’s bundle of evidence and the Appellant herself. Identifying the Appellant herself may also lead to the identification of any complainants or witnesses. The individuals listed in the Respondent’s bundle of evidence are to be referred to in the manner set out within the letter dated 21 October 2023.

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

The Appellant is a 39-year-old woman. At the material time, she was working as a Senior Care Assistant, providing support for vulnerable adults at a private care provider (“the Employer”) which operated at least one residential care home. The Appellant states that she had over 17 years of experience in the care sector [5] [14].

The Appellant started work for the Employer in May 2020 [5], initially as a (bank) care assistant [51]. In around 2021, the Appellant became a Senior Care Assistant [5] and [60].

The Employer’s referral to DBS arose, primarily, out of concerns about the care provided (or not provided) to a service user (“X”) during the night of 18-19 September 2022.

X was a recently-admitted resident at one the Employer’s care homes. X was 78 years old at the time, with various long-term conditions [73]-[75]. Notably, X had a catheter and her Care Plan stipulated that she needed regular assistance for associated continence issues [84].

The Appellant was subject to the Employer’s disciplinary procedure, which encompassed an initial investigation meeting with the Appellant [121]-[124] and five of her colleagues [104-120]. A second investigation meeting was held with the Appellant to put allegations to her which had been made by some of her colleagues [125]-[127].

On 30 September 2022, the Employer invited the Appellant to attend a disciplinary hearing, which she did not attend [182]. On 4 October 2022, the Employer rescheduled the hearing [184], but again the Appellant did not attend [100].

The Employer concluded that (among other things) the Appellant had failed, during the night shift of 18-19 September 2022, to take necessary action after having been made aware that X had cut her catheter tube (“the Catheter Incident”). The Employer found the Appellant to have committed gross misconduct and dismissed her with immediate effect [98]-[99].

The Appellant had, previously in August 2021, been issued with a formal written warning in relation to breaching the Employer’s social media policy (by taking a photo with a TV celebrity visiting the home and posting it to social media) and its PPE (personal protective equipment) policy, having had her mask removed when the photo was taken [128].

On 24 October 2022, the Employer referred the Appellant to the DBS [41]-[48].

On 19 November 2022, DBS sent the Appellant an “early warning” letter [29]-[31]. The Appellant wrote to DBS on 20 January 2023, stating that “I have just received a clear DBS for a job I applied for last” and asked about “time scales” of DBS’s enquiries [33].

On 20 March 2023, DBS sent the Appellant a “Minded to bar” letter [34] with attachments [40]. The Appellant did not make any representations to DBS.

The Final Decision Letter from the Respondent dated 6 June 2023 notified the Appellant that it was including her on the Adults’ Barred List.

The Final Decision letter [139] states that, upon consideration of all the available information, the DBS was satisfied that:

“On 18 September 2022 you failed to contact the District Nurse Team and report that a service user ([X], aged 78) had cut her catheter tube as per care plan guidance, and following the service user reporting that she felt like her bladder was burning and was in pain, you failed to take any action in response to this concern.

On a date leading up to 6 July 2021 you breached PPE policy by removing your facemask to take a photo with a visitor outside of the home.”

The DBS concluded that both of these findings amounted to “relevant conduct” within the meaning of the Act which “endangered a vulnerable adult or was likely to endanger a vulnerable adult”. The allegations of relevant conduct were both found proven.

The DBS also explained why it was satisfied that in all the circumstances a barring decision - to include her on the Adults’ Barred List - was appropriate and proportionate [139]. The Appellant did not exercise her right to ask DBS to review its decision.

The two findings of relevant conduct made by the DBS are as summarised above. The letter set out the following details specifically:

“…

•

On 18 September 2022 you failed to contact the District Nurse Team and report that a service user (..[X].., aged 78) had cut her catheter tube as per care plan guidance, and following the service user reporting that she felt like her bladder was burning and was in pain, you failed to take any action in response to this concern.

•

On a date leading up to 6 July 2021 you breached PPE policy by removing your facemask to take a photo with a visitor outside of the home.

Having considered this, DBS is satisfied you engaged in relevant conduct in relation to vulnerable adults. This is because you have engaged in conduct which endangered a vulnerable adult or was likely to endanger a vulnerable adult.

We are satisfied a barring decision is appropriate. This is because we are of the view that you failed to realise the seriousness of a situation where a service user had cut their catheter, where you failed to take the appropriate action of reporting the incident to the district nurse, when it was your responsibility as the senior on shift to do so. You failed to read the care plan, despite this being part of your role to do so, with the care plan providing clear instructions on what to do if there were issues with the service users catheter. The actions you instead instructed a member of staff to carry out resulted in the service user’s bed becoming wet and requiring changing regularly.

One of the reasons given as to why you failed to call the District Nurse for support was that you couldn't be bothered to wait for them, thereby showing a lack of care for the service user, and failure to place their needs above that of your own. You also failed to take any action when it was reported to you that the service user was in pain, stating this had previously been reported on a previous occasion. However, this shows a lack of concern for how they were currently feeling at that time.

As a result of your lack of action this placed the service user at risk of potential infection and suffering abdominal pain. It is acknowledged that you had extensive previous experience in caring roles with no known previous concerns, and acknowledged on reflection that you should have contacted the District Nurses immediately.

However, you reasoned that you did not know how to deal with the situation as it was a bank holiday, however the District Nurse Team were available 24 hours a day, and you failed to take any action to ensure the appropriate support could be provided to the service user. You admitted that you had failed to read the service users care plan, stating you didn’t have time to as they had only come into the service a few days prior. However, it was part of your role to do this so that you were aware of the service users care requirements.

Had you read this you would have seen clear guidance that any issues concerning the catheter should be reported by the senior on shift, which was yourself, to the District Nurse.

Had you followed this guidance in place this would have ensured the service users’ needs were met in a timely manner, with the District Nurse only contacted when your colleague commenced their shift the following morning. The actions you instructed a staff member to take resulted in the service users bed becoming wet and requiring changing, and placed the service user at risk of physical and emotional harm. We are satisfied that it is likely that if you were to be in a Regulated Activity position with vulnerable adults you would fail to read care plans in a timely manner, leaving you without the full knowledge of their care requirements. We are satisfied that it is likely that you would fail to correctly assess the seriousness of a situation, would fail to act upon concerns raised that a service user was in pain, and would fail to access/provide the required support for a service user. A repetition of this conduct is assessed as an unacceptable risk of physical and/or emotional harm to vulnerable adults that cannot be ignored.

…”

On 6 June 2023, DBS sent its “Final Decision” letter to the Appellant, notifying her of its decision that it was appropriate and proportionate to include her in the ABL. The Appellant was also informed that she could ask for permission to make late representations to DBS.

She did not do so [138] (albeit the Appellant’s letter to the UT dated 11 August 2023 refers to making “late representation” [14]).

On 22 August 2023, the UT received a letter from the Appellant, purporting to “request […] permission to make late representation” about DBS’s decision [14-16].

It is understood that the Appellant was advised to complete and return a UT10 Form (a Notice of Appeal), which was filed on 14 September 2023 (8 days after expiry of the 3-month time limit for appeal under r.21(3) of the UT Rules) [2] [214].

On 16 February 2024, the UT Judge extended time for the late appeal and admitted the Appellant’s Notice of Appeal and application for permission to appeal pursuant to r.5(3)(a) and r.21(6) of the UT Rules [214].

The UT Judge granted the Appellant permission to appeal on two grounds:

In her Grounds of Appeal (the “Reasons for Appealing” section enclosed within 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 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 225 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 Employer, and colleagues or managers from the care home JLA worked in at the relevant time together with the record of interviews conducted by the Employer with JLA and statements taken from her colleagues.

As we note below, none of the 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 its reliability and the weight it is to be given.

The Appellant relied upon her written submissions and notice of appeal sent to the DBS and oral evidence given to the Tribunal as well as the interviews she had with the Employer.

It goes without saying that all subsequent written and oral evidence of the Appellant was not available to the DBS when making its barring decision.

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 gave evidence in chief in response to questions from the Tribunal and was cross examined by Mr Reichhold in relation to all of her evidence. He suggested that both of the findings of relevant conduct did not contain mistakes of fact and there was no mistake of fact in any of the matter relied upon in the DBS barring decision. He put the relevant pieces of documentary evidence to the Appellant and suggested her account was neither reliable nor truthful. The Appellant denied the allegations of relevant conduct in material respects - to the extent that they were based on all material facts found in the Final Decision Letter.

Again, we make findings of fact in relation to this evidence and give our reasons in the discussion section below. In summary, we have come to the conclusion and find that the Appellant’s oral evidence was substantially reliable and credible for the reasons we give within 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 Children’s Barred List (‘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. They provide 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.

Therefore, pursuant 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”. An activity is regulated activity relating to vulnerable adults if it falls with paragraph 7. This includes the provision to an adult of healthcare, personal care or social work.

‘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] 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 issues in this appeal therefore are whether there were any material mistakes of law or fact relied upon by the DBS in including the Appellant on the 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 material mistake on any point of law or in any finding of fact – one upon which its barring decision was based. The UT cannot consider the appropriateness of barring (see section 4(3) of the Act) - the appropriateness of including a person in a list barring them 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 (for example that there is a finding that the Appellant has not committed any relevant conduct such that they do not satisfy the statutory condition for inclusion on a barring list).

Mr Reichhold made oral and written submissions on behalf of the DBS in resisting the appeal, which we set out below. He submitted that it appeared from the Appellant’s Grounds of Appeal (“the Grounds”) that her primary contention was that DBS made one or more mistakes of fact in relation to the Catheter Incident [5]-[6].

However, he acknowledged that the Appellant had also been granted permission to appeal in relation to mistake of law [214]. To that end, he addressed both grounds.

No material mistake of fact

Mr Reichhold submitted that it is not entirely clear, however, how and on what basis, the Appellant seeks to challenge the relevant DBS findings. In broad terms, the Appellant states in the Grounds that things are “not as have been stated” [5]. Mindful that the Appellant is unrepresented, and doing the best he could from the Grounds [5-6], he identified the following four factual challenges in relation to the Catheter Incident:

Mr Reichhold noted that by contrast, there does not appear to be any material challenge, on the facts, to the second finding of relevant conduct - findings arising from the photograph with the celebrity and the associated failure to comply with the Employer’s PPE and social media policies.

Insufficient Interest Challenge

The DBS made a finding that, upon being made aware that X had “cut” the Catheter tube, the Appellant failed to contact the District Nurse Team (which was the action she accepts that she should have taken). The Appellant did not challenge this finding in the notice of appeal nor during the hearing.

The DBS also made a finding that, upon (shortly later) being made aware that X was reporting that she was in pain (with a reference to a “burning” feeling in her bladder), the Appellant still failed to take adequate action. There, appeared to be no challenge to that finding by the Appellant in the written grounds of appeal although there was during her evidence.

Mr Reichhold argued that the challenge appeared, instead, to be focused on the reason why the Appellant failed to take the actions that she ought to have taken. There appear to be two relevant aspects to that challenge.

First, there is a challenge to the finding by DBS that “one of the reasons” why the Appellant failed to contact the District Nurse Team was a lack of sufficient care for X and/or a failure to place X’s needs above her own [139].

Mr Reichhold submitted that the DBS made no material mistake in relation to this factual finding. He contended that there was, and still is, a sufficient body of evidence to support it:

Second, there is a challenge to the finding by DBS that the Appellant had, in still not taking any adequate action after having been informed that X was reporting being in pain/discomfort, demonstrated a “lack of concern” for how X was feeling [139].

Mr Reichhold submitted that the DBS made no material mistake of fact in this regard and that there is ample evidence to support that finding:

Mr Reichhold submits that the following is also notable:

Mr Reichhold noted that set against all of that, there is the Appellant’s position set out in her grounds of appeal:

Mr Reichhold therefore submitted that the DBS made no material mistake of fact in its findings of relevant conduct.

He argued that it is striking that, according to the evidence, the Appellant did not (at the time) raise with the Employer this new counter-allegation that she was merely following LS’s advice. The evidence (e.g. [118-120]) indicates that LS’s contemporaneous account is entirely inconsistent with the Appellant’s new claimed version of events. It is submitted that it is highly improbable that the Appellant would not have mentioned such an obviously relevant factor in either of her formal interviews with the Employer (when it would have been clear she was facing serious allegations and her job was on the line) [121-123] [125-127].

Acted on Advice Challenge

Mr Reichold contended that this appears to be a wholly new argument, raised for the first time in the Grounds, and, in effect, amounts to a significant change of position. Again, he submitted that it is highly improbable. He argued that if true, the Appellant would have raised it at the time, in one or both of her interviews with the Employer, or during the disciplinary process (or on appeal), or in representations to DBS. It is inconsistent with other more contemporaneous evidence.

For these reasons, he submitted that DBS made no material mistake of fact.

Lack of Training Challenge

Mr Reichhold submitted that the DBS made no material mistake in relation to the Lack of Training Challenge (which again was raised in the Grounds for the first time). There is a record of various training apparently provided to the Appellant by the Employer [63-67]. It includes training relating to “care plans” and “care planning” (amongst others). It also includes training relating to “continence care in social and community care” completed by the Appellant on 25 October 2021 [64].

Further, and in any event, he argued that any such mistake of fact would not be material in all the circumstances. No further or specialist training was required. The Appellant had many years of experience working in similar environments. The Appellant had others, such as “S[]” (her manager) she could turn to for guidance.

The evidence indicates that X’s care plan was readily available and that the Appellant simply failed to read it. The care plan, including the most relevant section [84], would be straightforward for an experienced practitioner to understand.

In a section specifically on “continence management” [84], it states: X “requires support from the district nurse team in ensuring her catheter is managed and changed regularly”; staff are “to ensure that [X] is always kept clean and dry and any issues concerning her catheter are to be reported to the senior on shift so the district nurses can be contacted”; and, again, that “any concerns [in relation to the Catheter] are to be reported to the senior member of staff so that district nurse team can be contacted” [84]. It flags risks of a hazard relating to continence as “high”, and the severity of such a hazard as “high”. It emphasises that the aim is to support X in a dignified and respectful manner with continence. The evidence also indicates that other colleagues were expressing concern about the situation and seeking an intervention from the district nurse team (e.g. KF [115]).

Lack of Time Challenge

Mr Reichhold also contended that the Lack of Time Challenge appears to be a new argument, raised in the Grounds for the first time.

He submitted that the DBS made no material mistake of fact. The evidence indicates that, in reality, the Appellant would have had sufficient time to read X’s care plan. Any suggestion to the contrary is improbable. Reading a service user’s care plan is, surely, an essential part of the role that the Appellant was entrusted to carry out. It is mentioned, expressly, and in several prominent places in the job description document (including the very first bullet point setting out the “purpose” of the role and as a key part of the “main objective”) [60]. Indeed, the Appellant’s responsibility went further than merely reading plans, she was expected to ensure they were regularly reviewed [60].

Other matters

Mr Reichhold noted that wider allegations were made relating to the Appellant sleeping at work and spending an inappropriate amount of time at work on her phone (talking, watching videos and/or on social media).

In relation to the sleeping at work allegation:

In relation to the time spent on her phone (talking/watching videos/social media):

Mr Reichhold submitted that these wider matters may nevertheless be relevant to the Appellant’s overall credibility and/or in relation to aspects of the account she presents in the Grounds (such as whether the Appellant’s role was so demanding that she had no time to read X’s care plan).

No mistake of law

Mr Reichhold relied on the fact that the Appellant did not appear to have set out, expressly, any specific mistake(s) of law. However, bearing in mind the grant of permission in this respect, he submitted that:

By comparison to the present case, the Tribunal may wish to consider the UT’s approach in JA v DBS [2024] UKUT 60 (AAC). In that case, the appellant care worker was included in the children’s barred list and the ABL on the basis that JA “slept on shift during your waking night shift, leaving service users in your care without support for up to 1 hour” (at §1). It was argued on the appellant’s behalf that the barring decision was disproportionate. The UT disagreed, and concluded that:

“23.

[…] We consider that DBS made a proper assessment of JA’s Convention right under Article 8. This was the only occasion on which JA had fallen asleep on duty. She had been subject to numerous spot checks in the past and had always been awake at the time of the visits, although she told us that it was usual for the managers to ring the door bell. In those circumstances, it may seem harsh to ban her from any work in regulated activity with children and vulnerable adults. But the legislation allows only two options: to bar or not to bar. Unlike other regulators, DBS has no power to suspend a care worker for a period or to impose conditions on her working in the sector.

24.

When JA fell asleep, it was not just something that could have happened to anyone. She did not suddenly find herself overcome by illness or fatigue. She was not exhausted after a long run of night shifts. She was not inexperienced at adjusting to staying awake throughout the night. She was a seasoned night worker, she knew it was her responsibility to stay awake, and she had her own experience as well as her employer's policy to rely on to help her remain watchful. Although she could call on her fellow carer, it was her duty to ask for help. Her co-worker was entitled to sleep and was not responsible for overseeing or checking on JA. JA was the first line of protection for the residents should anything happen. Despite that, she set herself up to fail without taking even the simple precaution of having a mug of coffee to keep her awake. In those circumstances, we consider that it was proportionate for DBS to exercise its protective role as it did and include her in the lists.”

Mr Reichhold therefore submitted that the DBS’s decision was proportionate, and that it was not irrational or unreasonable (in the Wednesbury sense) to conclude that there is a risk of the Appellant engaging in relevant conduct in the future.

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 (most 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. The Appellant’s factual representations and evidence denying many of the allegations, were in similar terms to the grounds contained in the notice of appeal dated 14 September 2023.

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 and DBS v RI. 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, the UT stated in PF:

The Appellant relied upon her notice of appeal and the submissions of fact she made therein as set out above. She supplemented this with oral evidence of fact given during the appeal hearing. As noted above and below, her oral evidence was consistent with the factual representations she made in the notice of appeal.

We also 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 consisted of written notes of answers given to questions from the Employer and it was untested by cross examination so that potentially less weight is to be given to the written evidence of those DBS witnesses. As is made apparent below, their reliability and credibility has been impugned by the Appellant. Therefore, we have had to balance our assessment of their reliability and credibility against our assessment of the Appellant’s reliability and credibility having heard her give oral evidence.

We are satisfied that the Appellant was a reliable and credible witness in the oral evidence that she gave the Tribunal. We set out our reasoning for this conclusion in the section below when addressing Grounds 1 and 2 and the alleged mistakes of fact in relation to the findings of relevant conduct.

The first finding of relevant conduct against the Appellant relied upon by the DBS in its decision to bar is that:

“On 18 September 2022 you failed to contact the District Nurse Team and report that a service user ([X], aged 78) had cut her catheter tube as per care plan guidance, and following the service user reporting that she felt like her bladder was burning and was in pain, you failed to take any action in response to this concern.”

In summary, the Appellant’s response in her oral evidence in chief was as follows.

She was full of remorse about the catheter incident and tearful throughout giving evidence. She stated she felt ashamed and had failed herself. She displayed a good level of insight and acceptance as to the mistakes she had made.

She accepted she had made mistakes by: a) not reading the care plan for X which included instruction to contact the District Nurse for concerns about X’s catheter; b) not contacting the District Nurse for advice, instruction and assistance with what to do on learning that X’s catheter had been cut; c) not calling her manager [S] who was on call at night for advice; d) following LS’s advice as to how to act in response to the Catheter Incident.

There was no dispute that her mistakes constituted relevant conduct – her failures to act fell below the standard of reasonable conduct and exposed X to a risk of physical harm as explained by the DBS in the barring letter:

However, we accept the Appellant’s oral evidence about the following matters which a) provide mitigation for her failures; and b) reveal mistakes of fact in the findings relied upon by the DBS.

First, the Appellant stated that she had asked LS – another senior care assistant who was also on duty that night but who had more experience than her – for advice on what to do about the cutting of X’s catheter. She stated that LS had advised her there was no need to contact the District Nurse until the next morning. The Appellant therefore instructed the staff to put pads under X and regularly change them throughout the night. The following morning the Appellant came back into work to conduct the handover and inform the District Nurse of the situation but her manager [B] told her there was no need as he would deal with it.

The Appellant’s oral evidence was consistent with her grounds of appeal on this issue from September 2023:

We accept that the Appellant took advice from a colleague who was more experienced but of equal rank and relied upon it, however inadvisably. As above, she accepted that this was only mitigation and she had failed to follow the care plan and call the District Nurse.

Second, we accept her evidence that she did not say to her colleague that she ‘couldn’t be bothered’ to contact the District Nurse or senior manager once she had been informed that X had cut her catheter her or that it could wait until the morning. We accept her evidence that she has 17 years’ experience in care work and was concerned for all her clients / service users. This again is consistent with her written grounds of appeal:

Third, we accept her account that she did not delay before going to see X and instructing that pads be put underneath her and regularly changed and that she did not fail to take action when hearing that the service user was in pain. We reject the allegation that she unreasonably delayed before visiting the service user X and accept that she went quickly – at least within a few minutes as she suggests. We accept that she did take action on being told of the service user suffering from the cut catheter – by instructing that pads be used. We also accept her account, that however misguided, the Appellant believed that the service user had been reporting a burning sensation since she arrived at the home a couple of days before so that the Appellant did not consider anything additional needed to be done.

We accept the Appellant’s evidence that the written accounts of the two witnesses relied upon by DBS are not reliable. The DBS relied upon written notes of the accounts given by KF and LS in investigatory meetings: KF claimed that the Appellant did not go up to see X for 15 minutes and LS said she could not be bothered to call the District Nurse. The notes record the following:

We reject those parts of the account by KF suggesting JLA delayed for 15 minutes before going to see service user X and reject the suggestion of LS that she said she could not be bothered to ring the District Nurse. We are not satisfied these allegations are reliable on the balance of probabilities for a number of reasons.

First, the witness accounts are untested hearsay. The evidence consists of notes of interviews with each of the witnesses but not any formal statements or documents authored by them – let alone witness statements containing statements of truth. The absence of any cross examination of the witnesses means that less weight should be given to their accounts in this case.

Second and importantly, as the Appellant emphasises, KF went on to make another allegation against her which both the Employer and the DBS found not to be proved. KF alleged that the Appellant had been asleep on duty for around four hours during night shift (around 1am to 5am) on 14 September 2022. This allegation was found unproved by the Employer during disciplinary proceedings and the DBS in its barring decision process document. This was partly because the Appellant had produced text messages that she had sent at around 2-4am during the time she was alleged to have been asleep.

As the Employer stated in its outcome letter dated 7 October 2022:

The DBS found in its barring decision process document:

We do not consider it appropriate for the DBS to attempt to undermine the Appellant’s credibility or reliability based upon an allegation that it has found unproven as part of its barring decision process document and was not contained in its barring decision letter.

Third, the Appellant gave contemporary account in interviews with the Employer denying these specific allegations and was consistent in those denials throughout notice of appeal and oral evidence to us. During the disciplinary interviews (investigation meetings) with her Employer on 21 and 27 September 2022 she stated:

We also accept the explanation given by the Appellant in oral evidence as to why KF and LS had reason to make unreliable allegations against her. She explained that LS may have felt responsible for giving the Appellant the wrong advice about how to care for service user X and was seeking to deflect blame and place it upon the Appellant. Second, she explained that KF and LS were in a personal relationship.

Mr Reichhold relied upon the fact that the Appellant had not raised matters she now relied upon at an early stage. She only mentioned that she had asked LS for advice in her notice of appeal a year later in September 2023 and not during the disciplinary interviews in September 2022. Further she had not attended the disciplinary hearing with the Employer nor made representations to the DBS in advance of the barring decision as invited to do.

We have considered carefully whether these matters undermine the Appellant’s reliability and credibility. However, we have decided that they do not.

First, we were impressed by the fact that the Appellant was ready and willing to make concessions against her own interest in her evidence and in her notice of appeal. As we have explained above, she accepted she had made mistakes in relation to her care for service user X. She accepted that she had not read the care plan and did not do so generally – that she needed training and did not want to be a senior health care assistant as she did not want the responsibility. She was remorseful and insightful. She accepted much of the DBS’s case on the first finding of relevant conduct.

Second, in coming to this conclusion, we have taken into account the Appellant’s character and previously unblemished 17 year career in the care sector. This is relevant to her propensity to commit relevant conduct and her reliability or credibility when giving evidence. We also take into account that JLA 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 reliance by the employer or findings by the DBS in relation to other allegations made against her which she denied.

Third, on balance, we accept her explanations that she gave to Mr Reichhold when cross examined on these points. We accept that the Appellant was suffering from a high degree of anxiety as a result of the allegations and this was reason for her not attending disciplinary hearing with the Employer or engaging with the DBS on the substantive issues at an earlier stage prior to lodging her notice of appeal. It was apparent from her appearance, manner of giving evidence and explanations regarding her mental health that the Appellant had been continuing to suffer from poor mental health since the incident.

On balance, we also accept that the Appellant did not mention asking LS for advice at earlier stage before her notice of appeal as she did not want to get LS in trouble. We also accept her explanation that she thinks LS was seeking to put further blame upon her as LS felt guilty for giving the Appellant bad advice at the time and was seeking to deflect responsibility.

The Appellant’s contemporaneous account and her account during the hearing in relation to Finding 1 included an admission to relevant conduct in respect of Service User X. Nonetheless we accept her denials in relation to a number of material facts relied upon by the DBS in making its Barring Decision. We identify below the facts upon which the barring decision was based but which have not been established on the balance of probabilities.

We are satisfied on the balance of probabilities that DBS made the following mistakes of fact in relation to the first finding of relevant conduct upon which its barring decision was based. The following findings and reasoning contained in the final decision letter were made in error of fact:

We are satisfied that these findings and reasons were materially mistaken in fact. The Appellant did not fail to take action, did not say she could not be bothered to wait for the District Nurse, did not show a lack of care for the service user and did not show a lack of concern for how the service user was feeling at the time.

We turn to consider the headings under which Mr Reichhold categorised the Appellant’s mistake of fact challenge to the first finding of relevant conduct:

We address the four categories in turn.

A. We have found that on the balance of probabilities that there was an error of fact in the DBS finding that the Appellant had insufficient interest in helping Service User X. This is for the reasons set out above.

B. We accept the Appellant’s evidence on the balance of probabilities that she ‘Acted on Advice’ of LS. Even though this was not sufficient or reasonable, it is some mitigation.

C. On balance, we accept that the Appellant’s evidence that she had asked for extra training in relation to care plans. Again, this is only mitigation because she had been provided with training and should reasonably have read the care plans of service users for whom she was responsible.

D. On balance, we accept the Appellant’s evidence that the work demands placed upon her by the Employer during much of her time at the home were very difficult. On night shift she was often the only senior care assistant responsible for 84 residents – across two houses - half of whom had behavioural difficulties and the other half were elderly. She was supported by one or two agency care workers, some of whom did not speak English. There was a lot of challenging behaviour that she was called to respond to and little time to read anything. She had told her manager S that she did not understand the care plans and need help understanding them. LS happened to be on shift as a second senior care assistant on the night in question to deal with the care plans. The Appellant was trying her very best to look after everyone under her care and genuinely thought that placing pads under X with hourly checks was the best thing to do after being advised by LS to leave calling the District Nurse to the morning. The Appellant believed that pads would prevent X being soaked and causing her any harm. Working during the time of COVID placed extreme demands upon her.

While all of the above is some mitigation, it does not excuse the Appellant’s conduct in failing to read X’s care plan. X had been a resident in the home for two days before the catheter incident, so even if the Appellant had not read the care plan before the Catheter Incident, as she ought to have, she should reasonably have read the plan when the incident was brought to her attention so she knew what was the appropriate action to take. In her oral evidence, the Appellant did not suggest that unmanageable demands were the principle reason for not reading X’s care plan – she simply accepted that she did not read care plans as she had not had training and did not understand them.

We are therefore satisfied that the DBS has made materials mistake of fact upon which the barring decision was based and while the Appellant did still commit relevant conduct there was some mitigation for it.

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

At no stage did the Appellant deny this finding. By way of context, she explained that she had seen a celebrity visitor to the home and on what she described as an unpaid break during the working day she went to get a photograph with them outside the home. It was during the time of COVID restrictions. She stated that did not understand that PPE policy applied during her breaks outside the home. We accept her evidence – albeit that again it is mitigation and does not reveal any mistake of fact in the finding.

While there had also been an allegation that the Appellant had then posted the photograph on social media in breach of the Employer’s social media policy, this was not relied upon by the Employer.

Therefore, there was no mistake of fact in Finding 2.

We do note that while the DBS relied on this finding as constituting relevant conduct within the Final Decision Letter, it did not go on to say anything else about it in the letter nor rely on it as a reason for the barring decision. Therefore, it is not clear if it played a material part in the barring decision.

Further, it is by no means clear that the finding constitutes relevant conduct as a matter of law. There is no suggestion that any vulnerable adult was actually put at risk of any harm by the Appellant’s conduct. The question is then whether, if the Appellant’s conduct were repeated in respect of a vulnerable adult, it would put them at risk of harm. This would depend on how close the Appellant was standing to the other person without wearing a facemask or PPE – ie whether if the conduct was repeated in relation to a vulnerable adult there would be a risk of the Appellant passing on or contracting COVID or any other infectious disease which in turn might put all residents at risk of contracting it.

There was no evidence relied upon by the DBS or reasoning in the barring decision process document as to why the finding constituted relevant conduct or posed a risk of harm to an actual or hypothetical vulnerable adult. The rationale set out in the barring decision process document was limited to the following (essentially that it was a breach of PPE policy):

We therefore find that there was a mistake of law in relation to this finding. The DBS failed to provide any reasons or evidence in its final decision letter or barring decision process document as to why the finding of fact it relied upon constituted relevant conduct (ie. if repeated in relation to vulnerable adults would cause a risk of harm).

In light of our findings that there was a material mistake of fact in relation to the first finding of relevant conduct and a mistake of law in relation to the second finding of relevant conduct, we have decided to remit the Appellant’s case to the DBS for a fresh barring decision based upon the findings we have made above (see sections 4(6)(b) & (7)(a) of the Act). Given that there has been an admission by the Appellant to much of the first finding of relevant conduct in relation to the catheter incident, and there is no dispute that it constitutes relevant conduct, it would not be appropriate for us to direct the Appellant’s removal.

The DBS will need to reconsider the appropriateness and proportionality of including the Appellant on the ABL in light of the findings we have made.

It is therefore unnecessary for us to decide whether the decision to bar the Appellant was proportionate and whether there was any other mistake of law based upon the findings it relied upon.

Nonetheless, we offer some observations upon the proportionality of the barring decision to assist the DBS in re-making its decision.

The Appellant gave cogent evidence as to the impact that the barring decision has had upon her which we accept.

She stated that she had struggled to find work as she had spent her most of her working life in care. After taking a break from care work in 2018-2020 because she had suffered a lot of anxiety and depression, she had specifically gone back in to care work because of COVID. Barring had greatly impacted her life, caused her much mental stress and financially affected her - she nearly lost her home by way of eviction. She had rented her house and had three young people at home. Luckily, she had subsequently been able to go into working for a pharmacy after working for a bank. She was now working towards pharmacy qualifications, her confidence having been shot. Her manager has offered for her to go on a course for the NHS to qualify as a pharmacy technician but she would not be able to do that or progress in her job while subject to the barring decision. She had no intention to go back into care work even though she had loved it - it was not a job she loved anymore. She would not be able to progress in pharmacy work and work in hospitals or prisons or in a dispensing capacity if she stayed on the barred lists and she would like to progress in her career.

She did not believe that she presented any risk of harm to any vulnerable adult, had never caused harm and there had never been any other report against her. She had received so many letters and cards from families of those she had cared for. This was a one-off silly mistake - she felt that her reputation had been ruined and she was too ashamed to tell her father about it.

Given the findings of relevant conduct that the DBS had made, it was not a “perverse” or irrational decision by DBS to have included the Appellant on the ABL at the time it made its decision. 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 at that time. Obviously, the DBS will have to re-decide whether it is appropriate and proportionate to bar the Appellant from regulated activity with vulnerable adults based on the findings we have now made.

The decision that it was “appropriate” in all the circumstances to bar JLA 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 decision made at the time on the grounds of proportionality. It is accepted that barring represents an interference with a person’s private life for the purpose of Article 8 of the Convention but the question is whether it is proportionate.

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?

These four questions were later developed by Lord Sumption in Bank Mellat [2013] UKSC 39 at 20:

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).

However, we must conduct our own assessment of proportionality afresh rather than simply review the DBS’s assessment.

We are satisfied that each of questions a)-d) should be answered in favour of the barring decision being proportionate based on the findings that the DBS made at the time (even though those findings are now disturbed because we have found they contained mistakes of fact).

On the basis of the findings that the DBS made in its final decision letter, we are satisfied that the DBS was entitled to conclude that it was proportionate and reasonably necessary to bar JLA in order to achieve its (important and) legitimate safeguarding aims.

There is no real question that the public interest and legislative objective of safeguarding vulnerable groups is sufficiently important to justify the interference with private life that barring constitutes and that barring is rationally connected to protecting those groups.

We are satisfied that when making the barring decision, the DBS correctly concluded that no other measures were in place sufficient to adequately safeguard vulnerable adults from JLA participating in regulated activity and committing further acts of neglect or the like such that it was the least intrusive measure necessary.

We are also satisfied that barring was necessary and struck a fair balance between JLA’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 vulnerable adults at the time of the decision based upon Finding 1 as originally made. The decision that the Appellant posed a risk of repeating similar acts at the time of the barring decision was also rational – ie. based on her not reading care plans.

However, the assessment of proportionality of barring may be rather different in light of the findings we have now made.

As we have set out above, the barring decision will have to be remade on a different factual basis that the Appellant was careless, neglectful or negligent rather than wilful in her actions relating to the catheter incident.

It will have to be made on the basis of the substantial mitigation: that she did ask LS for advice – although she should not have followed her advice anyway but that of a District Nurse; that she was an honest witness who made damaging admissions against her own interest; that she was highly remorseful and had insight into her conduct; that she had a previously long and unblemished career; that she was working in very stressful conditions, with difficult and challenging service users, low numbers of staff and in times of COVID; that she had told the Employer did not want to be a manager and was doing her best; there had been a very significant impact upon her as a result of barring both psychologically, financially and professionally; and barring will prevent the Appellant progressing in her current pharmacy career. There is no doubt that the cumulative effect of dismissal in September 2022 and barring in June 2023 have acted as a significant punishment – even if barring is designed as a preventative rather than punitive measure.

When reconsidering the issue of proportionality, the DBS will need to look again at applying the third and fourth stages of Aguilar Quila / Bank Mellat to this case.

When looking at the third stage and the least intrusive measure necessary, the DBS will be mindful that barring is a blunt tool. Unlike professional regulators who have a range of sanctions they can impose for disciplinary misconduct the DBS cannot make suspension or conditions of practice orders that might impose training or supervision requirements. Barring is an all or nothing outcome as far as regulated activity is concerned. In an ideal world it might be that a condition could be imposed that the Appellant be trained on reading and applying care plans if working in the care sector or regulated activity generally, or that she could work in other forms of regulated activity without restriction. However, that type of order is not available under the legislation.

The fourth question is whether on the findings now made a fair balance would be struck between the seriousness of the findings of relevant conduct upheld, and any risk of further harm to vulnerable adults that can be rationally derived from it, as against the impact and effect of baring on the Appellant’s private life. The risk assessment (of the risk that the Appellant may now pose to vulnerable adults if working in regulated activity) will now need to be reconducted in light of our findings of fact in relation to the relevant conduct and its impact on the likelihood of repeat occurrences. It remains a matter for the DBS to decide whether our findings and its revised risk assessment in light of those findings means that the public interest in safeguarding vulnerable groups outweighs the impact of barring upon the Appellant.

When reconducting the risk assessment, the DBS should also take into account the following. While, it is concerning that the Appellant admitted that she did not read care plans and wanted training on how to do so, this is something that the DBS might ask the Appellant to address by way of evidence or representations (eg. on further training she has or would take). Therefore, the DBS’s further risk assessment may turn on further evidence than that which was before us during the hearing. We urge the Appellant to engage constructively with the DBS on the evidence of insight, remorse and retraining that she has undergone since the original barring decision in June 2023.

We accept that it will be for the DBS to re-decide whether barring is necessary and whether it strikes a fair balance has been the Tribunal’s finding of relevant conduct, and the DBS’s revised risk assessment. This will be balanced against the factual matrix now found as to the interference with / impact upon the Appellant’s private life and employment restrictions it imposes on her (not only preventing her from working in care but also progressing in her pharmacy career). If the DBS does decide that barring remains proportionate, that decision will be subject to a right of appeal and the Tribunal would then carry out its proportionality decision afresh.

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

We conclude for the purposes of section 4(6)(b) of the Act that there were material mistakes of fact in the first finding of relevant conduct and a mistake of law in relation to the second finding or relevant conduct upon which the ultimate decision to include the Appellant on the ABL was based.

We therefore remit the decision of the DBS to include the Appellant on ABL for it to make a new decision in light of our findings of fact for the purposes of section 4(7)(a) of the Act. We also direct for the purposes of section 4(7)(b) that she remains on the list pending the DBS making its new decision.