SCK v Disclosure and Barring Service

This is an appeal against the decision (“DBS’sdecision”) of the Respondent (“DBS”) dated 19 June 2023to include SCK in the adults’ barred list.

The decision was made under paragraph 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (the “Act”). This provides that DBS must include a person in the adults’ barred list if

Under paragraph 10, “relevant conduct” for the purposes of paragraph 3 includes conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult; and a person’s conduct “endangers” a vulnerable adult if he (amongst other things)

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

Section 4(2) of the Act confers a right of appeal to the Upper Tribunal against a decision by DBS under paragraph 3 of Schedule 3 (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)).

Permission to appeal was given by the Upper Tribunal (Judge Citron) in a decision issued on 16 April 2024. The permission decision stated that

In addition to DBS’s decision letter, evidence in the bundle of 85 pages included:

SCK attended the hearing, as did Mr Serr representing DBS. We are grateful to them both, for presenting their respective arguments clearly.

SCK, representing himself, also gave evidence at the hearing, including via cross examination and answering questions from the panel.

The “permission” hearing was held on the CVP video platform; the case management directions that followed gave the parties the opportunity to express a preference as between “video” and “face to face” for the substantive hearing (the context being that SCK lived near Cardiff); DBS expressed a preference for “video”, based in part on SCK’s successfully participation in the “permission” hearing; SCK did not express a preference. Judge Citron directed that the substantive hearing be held on the CVP video platform, as it was fair and just to do so, given SCK’s ability to participate in such a hearing (demonstrated by the experience of the “permission” hearing), DBS’s preference, and the fact that an Upper Tribunal hearing could be listed sooner by “video” than “face to face” in a venue close to SCK’s home (such as Cardiff), given delays in securing courts in venues other than the Upper Tribunal’s regular venue in central London. The panel was satisfied that, in the event, SCK participated in the hearing on 2 August 2024 fully, fairly and justly.

BG’s email to FO, written the morning after the incident, stated that

The meeting minutes of 13 February 2023 recorded the following exchange:

The key differences between SCK’s account of what happened, and BG’s email, was that SCK said that when MDC bit his hand, SCK quickly moved his hand away and, in so doing, inadvertently made contact with MDC’s head. SCK’s evidence was that when he told FO on the Saturday that he had “hit” MDC, he meant “hit” in the sense of “come into contact with”, rather than intentionally strike. SCK also said that he did not call MDC’s son a “bastard”.

SCK acknowledged that, during the incident, he was holding down MDC’s hands to MDC’s chest (to stop MDC from lashing out at him whilst he was adjusting MDC’s pad); SCK described his grip on MDC’s hands as “gentle”.

It seems to us on the balance of probabilities that what happened here was that SCK, on having his hand bit by MDC, responded to the pain with a flash of anger and intentionally slapped MDC on the face. We come to this view based on the detailed and near-contemporaneous evidence in BG’s email, as well as the record of his interview with the employer two days later which, in our view, is consistent with reluctant acceptance that he had, in a flash of anger, slapped MDC – we note the following statements by SCK (with italicised words emphasised by us): “it wasn’t a hit really, it was not a planned hit”; “I am not remorseful as it isn’t planned”; “I am very sorry and was not expecting that time. The pain from his bite I was not expecting”; “It is my fault. I know these people and I know in my heart not to hit”).

We also find that SCK’s grip on MDC’s was firm and tight, rather than “gentle”: it had to be, in order to stop MDC using his hands to lash out at SCK whilst SCK was changing his pad.

Finally, we find, on the balance of probabilities, that SCK did, in his flash of anger, call MDC’s son a “bastard” in the immediate aftermath of the incident, as we find the account in BG’s near-contemporaneous email more persuasive than SCK’s (in part because, as we have just found, BG’s email account was more accurate on the question of whether SCK hit or slapped MDC).

It follows that, in our view, DBS did not make a mistake in finding that SCK restrained MDC by holding both of his hands to his chest, and that SCK slapped MDC across the face and called MDC’s son a ‘bastard’. We have considered whether it was a mistake for DBS to have omitted to make findings about the context, namely that MDC was trying to, and then did, bite SCK’s hand, as he was upset that SCK was trying to affix MDC’s pad. We note that DBS’s decision letter stated that

“… the challenging behaviour shown by MDC at that time was normal and at first you [SCK and BG] were both utilising distraction techniques due to known triggers around personal care, all of which were said to be documented in the care plan. Whilst we have not had sight of the care plan, the employer states in the Probationary Review a few days later, that the plan details that carers were to leave MDC and then go back in and give him time.”

In our view, this indicates that DBS was aware of, and took into account, the relevant context of SCK’s conduct, being MDC’s “challenging behaviour”: there was therefore no mistake with regard to making findings about that context.

We acknowledge that DBS’s decision rested on a single incident, in which SCK reacted in a flash of anger to being bitten by a vulnerable adult. However, given the self-evident seriousness, from a safeguarding viewpoint, of what SCK did and said (as found by DBS, and as to which we have found no mistake) in that incident, it cannot be said that DBS’s decision to include SCK in the adults’ barred list was wrong in law by being irrational, perverse, or a decision no reasonable barring body could have made on the evidence before it. As to whether DBS’s decision was disproportionate (and so mistaken in law), proportionality is at heart a balancing exercise, with, on the one side, the risk SCK posed to the safeguarding of vulnerable adults, and, on the other side, the detriment to SCK of his being barred (being that he would be unable to work with vulnerable adults). 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 SCK. DBS’s decision was not, therefore, mistaken in law by reason of being disproportionate.

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