RR v Disclosure and Barring Service

It was not in dispute that RR had drunk the Lambrini, that “company policy” was that alcohol was not to be drunk by support workers at the home, and that the Lambrini did not belong to RR.

RR emphasised that Lambrini was a light, sparkling drink (as opposed to an alcoholic spirit), and that he had drunk a relatively small amount (at the hearing he said it was 10 ml, although his earlier documentary evidence said it was 10-20 ml, or 20-30 ml). RR also argued that he had the service users’ implied permission to have the drink, as it was Christmas, and they did not object.

We find that Lambrini was an alcoholic drink and that RR did breach “company policy” by drinking alcohol at the home. We find that he drank a relatively small amount (a “shot” might be the best way to refer to the amount he drank). We find that he did not have the service users’ express permission prior to his drinking the Lambrini although he was entitled to infer from their body language that they did not object to him doing so.

We do not consider that DBS erred materially in failing to make findings about the relatively small amount of Lambrini RR drank, or that RR reasonably inferred from the service users’ body language that they did not object to his having a drink of their Lambrini. This is because the material finding by DBS was that RR drank some amount of alcohol in the home, and this was against “company policy”.

It was not in dispute that RR did say that he planned to drink alcohol while on a sleep-in shift if he could not sleep; but RR’s evidence was that he would only actually have drunk the alcohol if a manager had permitted it, via text.

We find that RR planned to use the alcohol as a sleeping aid, as he had difficulties getting to sleep and had forgotten to bring his sleep medication. We think it unlikely that, had he been about to drink the alcohol to help him sleep, RR would first have texted his manager for permission. We do not therefore think that DBS erred in making the factual finding it did.

RR accepted that occasionally he did not wear PPE properly (for example, he would remove his face mask when on his way to use the toilet); but he said it was always done in a low-risk way, for example, when no one else was within 2m of him. On the other hand, the contemporaneous documentary evidence recorded him as “often” not wearing PPE correctly; being seen walking through the home with his mask down; and these occurrences happening three times on the same day.

It seems to us that, by finding that, at times, RR did not adhere to PPE guidelines, and had his mask under his nose on occasions, DBS well-reflected the evidence, and did not make any mistake.

RR accepted that he did not read service users’ support plans properly; his evidence was that he relied on oral instructions from colleagues as to how to care for service users (like JP). RR accepted that he departed from service users’ usual routines in minor ways – he overlooked to give JP his coffee on one occasion; RR said that the reason he did not ask colleagues to change JP’s stoma before getting him dressed, was that there was no body waste in the collection bag at the time. RR’s evidence was that his English was adequate and there was no language barrier; but he denied not paying attention when instructed by colleagues as to how to do his job as a support worker.

The key evidence on which DBS relied for Finding 4 was:

It seems to us there were communication difficulties between RR and his co-workers, on whom he relied for information for how to care for service users in accordance with their support plans and usual routines. On the evidence, we find that these communication difficulties were not because of any language barrier – we find that RR was adequately fluent in English (as he was at the hearing before us) – but rather on account of a certain independence of mind on RR’s part that made it difficult to persuade him to do things other than “his way”. We thus find, on the balance of probabilities, that the documentary evidence is accurate in recording that RR did not always pay attention to what he was told by co-workers as regards caring for the service users and, partly as a consequence, did not fully follow support users’ support plans or usual routines. The example of RR not changing JP’s stoma before dressing him is a case in point: this was a routine to which JP had grown accustomed; and yet RR did things “his way”, because he saw no reason to change the stoma when there was no refuse in the collection bag.

It follows that, in our view, DBS did not make a mistake in this factual finding.

The evidence on which DBS relied for this finding was:

RR argued that it was not his care that caused JP not to eat; JP had “not eaten” on many occasions/periods prior to RR caring for him.

We find it unlikely, given the undisputed fact of JP going into periods or phases when he would “not eat”, that that there was a causal link between RR’s care and JP’s not eating at around that time; the opinions of RR’s co-workers on causality are unconvincing, given that they were not qualified to opine on such medical/psychological matters.

It follows that, in our view, Finding 5 was mistaken: it was not RR’s behaviour, or style of care, that caused JP to “not eat or drink” more frequently.

However, this does not seem to us a material mistake, in that DBS’s decision was based on “definite concerns” in one area, “irresponsible and reckless” – and the factual findings cited with reference to this concern, on pages 104-105 of the bundle, do not include Finding 5. Moreover, even where Finding 5 is cited in respect of one of two areas where DBS had “some concerns” – that of “callousness/lack of empathy” (pages 103-104) – it is one of three factual findings cited, implying it was not in itself determinative of that area of concern.

It follows that, in our view, DBS’s mistake in making Finding 5 was not a material one.

RR argued that barring should be for “abuse”; and DBS’s factual findings did not come anywhere near showing RR had “abused” service users. This seemed to us, in legal terms (and bearing in mind that the Upper Tribunal has no jurisdiction to question whether a barred list decision by DBS is “appropriate”), to be an argument that DBS’s decision was irrational, or disproportionate.

DBS submitted that the matters that caused RR to be included in the list must be viewed cumulatively; they demonstrated a pattern of conduct by RR of not adhering to rules and guidance for the safety of the service users. DBS argued that RR’s conduct had the capacity to cause harm to a vulnerable adult if repeated and suggested that RR was temperamentally unsuited to work with vulnerable service users.

In our view, and based on DBS’s factual findings (which we have found contain no material mistake), DBS’s decision was not irrational, as there is a pattern of non-compliance with rules and procedures on RR’s part. As far as proportionality of DBS’s decision is concerned, this is at heart a balancing exercise, with, on the one side, the risk RR posed to the safeguarding of vulnerable adults, and, on the other side, the detriment to RR of his being barred (being that he would be unable to work in his chosen field of care). It is well established that in striking this balance, appropriate weight must be given to DBS’s views on safeguarding risk, as this is its specialist field; as well as to public confidence in the safeguarding of vulnerable persons. In our view, and given that DBS’s decision was a rational one, the balance is struck in favour of avoiding the safeguarding risk posed by RR. DBS’s decision was not, therefore, disproportionate.

Finally, we acknowledge that RR felt that he was not afforded “due process”. We have no jurisdiction as regards the process followed by his employer; but as regards the process followed by DBS, we can see no procedural irregularity that would amount to an error of law, and so see no mistake on a point of law in DBS’s decision in this respect.

DBS’s decision involved no mistake either in a factual finding on which it was based (i.e. a material finding), or on a point of law. DBS’s decision is accordingly confirmed.