MOO v Disclosure & Barring Service

There are, broadly speaking, three separate ways under Part 1 of Schedule 3 to the Act in which a person may be included on the Children’s Barred List (‘CBL’) or Adults Barred List (‘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 paragraph 9 of Schedule 3 to the Act applies.

Paragraph 9 of Schedule 3 to the Act, set out the provisions in relation to inclusion on the ABL. It provides that, following an opportunity for and consideration of representations, the DBS “must” include a person on the adults’ barred list if:

‘Relevant conduct’ in relation to vulnerable adults is defined under paragraph 10 of Schedule 3 to the Act. Paragraph 10(1) sets out the meaning of “relevant conduct”. It includes: (i) “conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult”; (ii) “conduct which, if repeated against or in relation to a vulnerable adult, would endanger that vulnerable adult or would be likely to endanger him”. Paragraph10(2) provides that conduct “endangers a vulnerable adult if” among other things it: (i) “harms” a vulnerable adult ; or (ii) puts a vulnerable adult “at risk of harm”.

An activity is a “regulated activity relating to vulnerable adults” for the purposes of paragraph 8(8)(b) of Schedule 3 if it falls within one of the subparagraphs in paragraph 7 of Schedule 4 to the Act; that provision broadly defines “regulated activity” and includes, in relation to vulnerable adults, the provision to an adult of healthcare, personal care or social work.

Section 4 of the Act provides for appeals to the UT from the DBS barring decisions:

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.

The Court of appeal has most recently summarised the applicable law in XYZ v DBS [2025] EWCA Civ 191 at [18]-[29] as follows:

“The safeguarding regime

In order for the appeal to succeed under section 4 of the Act, the UT would need to reach a conclusion that DBS made a material mistake on a point of fact or law. The DBS relied on the “relevant conduct” gateway. It therefore needed to be “satisfied” of the following 3 things before barring MOO (pursuant to the following para 9 of Schedule 3 to the Act):

Indeed, if satisfied of the above three matters, the DBS was required, by the Act, to include MOO on the relevant lists.

In relation to relevant principles regarding factual mistakes, the UT has the benefit of a line of authorities: PF v DBS [2020] UKUT 256 (AAC); DBS v JHB [2023] EWCA Civ 982; Kihembo v DBS [2023] EWCA Civ 1547; and DBS v RI [2024] EWCA Civ 95. The jurisdiction for the Tribunal to consider an appeal based on a mistake of fact was considered in PF v DBS and approved by the Court of Appeal in DBS v RI. A three-judge panel in PF stated at [51]:

As set out above, the UT has a full jurisdiction to identify and correct a mistake of fact. An assessment of risk however is generally speaking for the DBS, and what is and is not a fact should be considered with care. In DBS v AB [2021] EWCA Civ 1575, Lewis LJ stated at [43] and [55]:

Therefore, the Court of Appeal in AB at [43] considered that the assessment of risk is essentially a matter for the DBS unless factually or legally flawed ie. premised upon a mistake of fact or in itself irrational or unreasonable.

In relation to whether it is “appropriate” to include a person in a barred list, the UT has no jurisdiction nor power to intervene. This is clear from s.4(3) of the Act and relevant case law as set out above.

The scope for challenge on appeal is effectively limited to a challenge on proportionality or rationality grounds. The starting point is that the DBS is well-equipped to make safeguarding decisions of this kind (see AB at paras 43-44, 55 & 66-75).

The proper approach to proportionality in barring appeals was conveniently summarised in the recent case of KS v Disclosure and Barring Service [2025] UKUT 045 (AAC):

It was said in the Belfast City Council case that ‘[i]f [a] local authority exercises [a] power rationally and in accordance with the purposes of the statute, it would require very unusual facts for it to amount to a disproportionate restriction on Convention rights’ (per Lord Hoffman at [16]).

When considering appeals of this nature, the UT “must focus on the substance, not the form, and the appeal is against the decision as a whole and not the decision letter, let alone one paragraph…taken in isolation”: XY v ISA [2011] UKUT 289 (AAC), [2012] AACR 13 (para 40). When considering the Decision, the UT may need to consider both the Final Letter and Rationale Document (“Barring Decision Summary”). The two together, in effect, set out the overall substantive decision/reasons (see AB v DBS [2016] UKUT 386 (AAC) (para 35); Khakh v ISA [2013] EWCA Civ 1341 (paras 6, 20, 22)).

Classic statements of law such as that in R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 make clear that materiality (or procedural fairness) is an essential feature of an error of law and there is nothing in the Act which provides a basis for departing from that general principle (CD v DBS [2020] UKUT 219 (AAC)).

The DBS is not a court of law. Reasons need only be adequate. DBS does not need to engage with every potential issue raised. There are reasonable limits, too, in practice, as to how far DBS needs to go in terms of any duty to “investigate” matters or to gather further information, etc, itself.

If the UT finds that the DBS made a material mistake of fact or law under section 4(2) of the Act, it is required under section 4(6) to either (i) direct that the DBS removes the person from the relevant list(s) or (ii) remit the matter to DBS for a new decision. Where the UT does the latter, the UT may, under section 4(7), set out any findings of fact, which it has made, on which DBS must then base any new decision. Following AB, the usual order will be remission back to DBS unless no decision other than removal is possible on the facts.

The Appellant was granted permission to appeal on the grounds of appeal set out in her notice of appeal and those additional points of law identified by the UT as set out above.

In submissions for the hearing drafted by counsel dated 31 July 2025, the Appellant relied on the following summary of grounds:

Mr Masemola submitted that the barring decision process was unreasonable and disproportionate such that there was a mistake of law. He submitted that the threshold of Wednesbury unreasonableness is satisfied by careful examination of the DBS documents and following headings therein: Establishment of Relevant Conduct and the Structured Judgement Process - Cognitive factors – Harm, Supportive thinking; attitude and beliefs.

On both counts he submitted the DBS made an erroneous assessment which led it to consider MOO harmful and a risk to other service users. This was made on an irrational, unfounded and perverse basis.

He also submitted that there had been a mistake of law in relation to procedural unfairness. The DBS needed to oversee fairness in establishing facts in the investigation and disciplinary process; there should be no lapses in fair process and there should be adequate and proper provision of information to a person who is under investigation or is in a disciplinary environment. He made the following points:

Mr Masemola submitted that there had been flaws in the fact-finding investigations and disciplinary process. There are reasons to doubt whether the Appellant deliberately struck the Service User or struck her at all. MOO was trained in safety procedures and would be averse to any physical struggle with RR knowing her behavioural patterns.

Mr Masemola contended that the finding that the Appellant lacked empathy flies in the face of material evidence and as was the finding of callousness and harmful behaviour – these were all based on a mistake of fact.

He argued that the history of MOO’s dealings with RR is remarkable – in a period up to 8 months – she claimed no-one among the staff had suffered more from beatings, biting, or being chased by RR, a young adult. Nonetheless, MOO had developed a rapport with RR including acting as a hairdresser for RR to increase her self-esteem. MOO applied the Restraint training (RRN) that she was given, so she knew when RR was ‘kicking off’ and needed to be approached with care. On her mother’s admission MOO stayed loyal in supporting RR throughout her time at the Home.

With regard to the alleged assault, RR did not say anything to her parents about MOO hitting her when she got into the car after incident and when RR immediately stated she had hit the Appellant and had apologised to MOO for it. The parents were incredulous when they later heard from another source about MOO allegedly hurting their daughter knowing that RR would have told her parents if it happened. On the index date, MOO after being hit by RR patiently accepted her apology, ending the fracas over getting weighed. Then, in a forgiving way, MOO let RR input the weight into the weighing App on her mobile phone. Surely that act alone arose from empathy.

Mr Masemola submitted that it was equally incomprehensible that MOO having fallen pregnant after trying for a baby for 5 years and being a dedicated member of staff, would endanger RR, the daughter of people she got on well with, in an unprofessional retaliatory strike against a service user, which could have provoked more violence and endangered the baby she was carrying.

In support of his argument that the finding of relevant conduct was based upon a mistake of fact, he relied on the following reasons undermining the credibility of the alleged assault by MOO on RR at the Home on 5 February 2023:

The DBS relied on written evidence from witnesses and notes of the incident or reports of meetings contained in the bundle of evidence it filed and served which contained 184 pages. The bundle included all the material relied upon by the DBS in making the Decision and in defending the appeal as well as all of the material provided by the Appellant.

The evidence relied on by the DBS included: that from the Appellant’s former colleagues BB and MJL; internal disciplinary, fact-finding and dismissal meetings; investigation reports and appeal proceedings conducted by managers on behalf of PC; emails and Whatsapp messages of what witnesses and MOO had said; correspondence; and a witness statement from a police officer.

As we note below, none of the eye witnesses relied on by the DBS made formal witness statements containing statements of truth, nor gave oral evidence nor were cross examined. Their evidence was made up of written reports from internal investigations and meeting, notes or correspondence and therefore contained 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 witness statement; contemporaneous accounts given in correspondence and disciplinary proceedings; the witness statement of witness LR; representations sent to the DBS; and oral evidence given to the Tribunal by the Appellant and LR. In contrast to the DBS witnesses, the Appellant gave oral evidence and was cross examined, as was witness LR. When considering its weight, we take into account that the Appellant’s evidence was tested.

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). We have not found it necessary to refer to every document. It goes without saying that all subsequent written and oral evidence of the Appellant was not available to the DBS when making its Decision.

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:

However, it is not within our jurisdiction, when considering whether there have been mistakes of fact, to make our own evaluative judgments as to risk (for example, whether there would be a risk of repetition or future harm). The proper evaluative judgements which should be made based upon the primary facts found are a matter for the DBS as the expert risk assessor. We would not interfere with risk assessments made by the DBS unless such judgments are based upon mistakes of primary fact or are irrational (contain a mistake of law).

We make findings of fact – both of primary facts and secondary facts (inferences from primary fact). We make the following findings on the balance of probabilities.

MOO was one of the two witnesses from whom we heard oral evidence. We found her to be witness whose evidence was reliable on peripheral matters but not as far as her evidence on the core allegation of punching RR.

We do not accept MOO’s written or evidence that she did not punch RR. We reject her key denial as being unreliable on the balance of probabilities. This is for the reasons set out below.

We begin by setting out the email that MOO sent to her manager EO on the evening of the incident as it her most contemporaneous account:

“Date: 5 Feb 2023 7:54 pm

Subject: Re: **S House Incident - 05/02/23.

To: EO

Cc:

Hello Emma,

Thank you for your concern and sorry for the late response. The pain reliever I was given had a drowsy effect and I had to take a break from my phone.

Find below my account of the incident and Night Shift with RR

The Night Shift started 19:30pm, RR slept at about 23:00pm and woke up at 6am. She was in her room talking to herself, I went in to meet her, we greeted and chatted a bit as she spoke of all her obsessions before I prompted her to observe her personal care. At about 07:30am, I offered RR a breakfast of coco pops and with the assistance of the morning staff as they arrived at about that time (BB and MJL).

After that, I went upstairs at about 07:35am to get the scale, when I got back, I came in through the kitchen door into the lounge. I was removing the scale from the pack when I prompted RR to come check her weight. She screamed and shouted saying I am not checking my weight, she charged towards me and quickly grabbed the scale of my hand, I was standing at the kitchen door which was shut and there was no room for escape at the moment. She got hold of the scale and hit me the first time on my chest, upon raising the scale the second time to hit me, I barricaded my body with my palms out and both arms crossed side by side. She hit me a second time this time on my arm/ palm.

All the while, the two day staff were sitting down on the dining area and did not intervene or try to de-escalate the situation. RR dropped the scale on the table and angrily walked out of the lounge door into the hallway and went into the second lounge to meet TB’s staff complaining to them that I said she should check her weight when she has a doctor’s appointment on the 15th of February,2023. I could hear the conversation from the lounge while I was packing up the scale, one of the day staff (MJL) said to me that I hit RR, I said that I didn’t and I was in pains from the impact of being hit with metal end of the scale. MJL did not further comment. The second day staff (BB) did not make any comment at all as she was on her phone.

TB’s staff encouraged her that the weight check is one of the task to be done. She returned to the lounge and I asked her gently again if she will want to check her weight again. She accepted and climbed the scale, we checked the weight together and she assisted with recording it on Nourish. I and RR had a brief chat before the end of my shift and she apologized for hitting me asking me not to write an incident report all these conversation were made in the presence of the day staff and to their hearing. I also did a handover to the day staff and ended by shift at 8am.

If you need any more information, kindly let me know.

Warm regards”

The contents of MOO’s witness statement dated 17 June 2025 stated as follows:

“2.

I am a dedicated care professional and have worked with vulnerable service users, including adults and children with special needs for three years.

3.

At the time of the incident, I was employed by PC and was supporting a service user referred to as RR, a young adult with complex needs.

4.

I am a mother and was pregnant during the incident. I have a personal understanding of the vulnerability of children and those with additional needs. I take my professional duties seriously and have always acted in the best interests of the individuals I support.

5.

The referral to the DBS arose from an allegation that I had assaulted RR during a shift. I categorically deny this allegation.

6.

RR is known to be verbal, expressive, and capable of giving a detailed account of her experiences. However, in this instance, the manager, EO, assisted in formulating RR's statement. The police report clearly notes that EO filled in the gaps for RR.

7.

RR's Care Plan, which I had stated during the internal investigation, records that she has a history of making false allegations against staff. This information was not appropriately considered by either my employer or the DBS in reaching their conclusions.

8.

On the day of the alleged incident, RR voluntarily told her parents, without pressure, that she had hurt me and was sorry. This was said before police were involved and in the absence of staff, which means that her statement was spontaneous and truthful.

9.

Her parents are a stable support system, and their account of RR's first reaction should have carried significant weight. RR's mother is also preparing a witness statement for this appeal which corroborates this account.

10.1

also possess an audio voice message from the Team Leader, sent to me after the incident, in which she absolves me of assaulting RR. I seek to include this audio message in the appeal bundle. It evidences that internal management at the time did not believe I committed any misconduct.

11.There was a witness, a staff member who interacted with RR immediately after the incident. Despite my repeated requests, the staff member's account was only taken very late and finally disregarded. The screenshots of the staff conversations which further support my innocence are in the index bundle

12.

Prior to the incident, I had raised concerns about EO's professional conduct, including the sharing of sensitive service user information via WhatsApp and improper communication of medical details. I raised this issue during a supervision session with the Team Leader.

13.

Emma expressed dissatisfaction after I raised these concerns. Since then, I experienced several forms of victimisation from her, including the exclusion of favourable evidence and the manipulation of investigation procedures.

14.

A current staff member recently contacted me to share a disturbing incident involving RR. According to the staff member, RR had accused her of hitting her. In response to this allegation, EO conducted an interview with RR and determined that RR had the capacity to be interrogated in relation to the matter. This is in contrast to how EO assessed RR's capacity in my case, where she concluded that RR lacked such capacity. The contrary assessments show a clear inconsistency and bias in how capacity was determined, apparently influenced by who the accused was. Unlike the other staff member, I was not afforded the same level of procedural fairness.

15.

A copy of the WhatsApp chat between myself and the staff member has been included in the case bundle.

16.

Also, RR's mother personally informed me that EO had made her aware of the incident and that the matter had been reported to the police. She also described how RR appeared distressed during the conversation, and expressed fear that she might be in trouble, which made her to apologised to me directly. This shows the level of emotional response from RR and the seriousness with which the allegation against the other staff member was addressed in contrast to the lack of fairness and consistency that I was given during the handling of my case.

17.1

believe the swift decision to implicate me was partially driven by bias and retaliation due to my earlier whistleblowing, and not an objective assessment of the incident.

18.

My union representative and I pleaded with management to allow RR to be interviewed, as she has the mental capacity to give a clear account of what occurred. This request was repeatedly refused.

19.

At no stage was I offered formal post Incident support by my employer, despite being pregnant and reporting physical pain. I had to attend A&E myself following the incident.

20.The DBS decision appears to have relied exclusively on the EO's account and those of two staff members, without assessing my version or RR's family's initial reports. This indicates a presumption of guilt and disregard for the burden of proof,

21.The decision further stated that my apology was not sufficient and lacked empathy. I would respectfully state that it is difficult to apologise for something I did not do, as it would amount to an admission of guilt. However, I deeply empathise with RR and all vulnerable service users that I have supported.

22.1

am a compassionate and caring professional who has always placed the safety and dignity of service users above all. I have worked diligently and faithfully in my role and have never before faced disciplinary action or safeguarding concerns.

23.The trauma of this accusation, combined with the lack of support and the loss of my career, has had a significant emotional and financial impact on me and my family.

24.1

respectfully request that the Tribunal reconsider this matter in light of this witness statement and also the following:

i.

The audio message from my Team Leader exonerating me.

ii.

The witness statement from RR's mother confirming RR's admission and apology.

iii.

Screenshot of RR's statement to parents

iv.

Screenshots of internal staff conversations

v.

RR's history of false allegations.

vi.

The procedural unfairness of the investigation and lack of direct testimony from RR.”

MOO gave extensive supplementary evidence in chief. The most relevant oral evidence related to her account of the incident. In summary, her evidence was as follows.

On the morning in question, around 7.30am on 5 February 2023, MOO was ending a night shift with the two other staff, BB and MJL, coming to take over. RR, a vulnerable service user, was under MOO’s care. RR had a GP check-up scheduled for 10 days later so MOO wished to check RR’s weight. MOO, RR and the two other staff were in the combined dining room and lounge, all close to each other. MOO was unpacking the weighing scales by removing them from the box when RR rushed towards MOO and grabbed the scales from MOO and hit MOO on the chest and MOO raised her arms and hands to protect her face and stomach. RR then hit MOO’s hands with the scales when MOO’s hands and forearms were crossed in front of her face. RR then threw the scales down on the table and it made a noise as they were bathroom scales made of metal. After throwing down the scales, RR ran out of the room and went to the other lounge and went to another member of staff. MOO took the scales that RR had dropped to prevent any further harm.

The two other members of staff, BB and MJL, were behind MOO during the incident and leaning on the radiator as it was cold. No one was between them and MOO. They were about ten feet away from MOO. BB and MJL stood there and did not move from their position or help her. One of them was on her phone and MOO did not know what the other was doing. They would not have been able to see RR’s back as MOO was between them. One of them did not say anything but the other, MOO thinks MJL, said MOO hit RR. It may be that MJL had thought MOO raised her hand so that is why she thought that MOO had hit RR. However, MOO did not register precisely what MJL was saying as MOO was in pain and was just rubbing her hands and forearms. MOO did not say anything in reply to MJL. When MOO was struck on the hands and arms, RR left. MOO was just rubbing her hands and forearms in pain and panting as her hands were hurt. RR was about five foot five inches tall, taller than MOO, and of a large build.

After the incident RR had gone on to the other lounge and to another member of staff who told RR she should not have hit MOO and that member of staff came to see MOO. MOO did write the incident down in a report although afterwards RR came to her apologising and begging MOO not to write it up. RR was telling MOO not to use her phone to enter the incident into the Nourish system. MOO wrote the report on the app called Nourish. It took her around 10-15 minutes as RR was following MOO around the building arguing with MOO not to write a report.

MOO finished her shift at 8am and then went home. She did not wait to speak to the team leader who would arrive at around 9am. When MOO got home and tried to lie down she was in pain and still panting, she called 111 to tell the operator she was hurt and also pregnant and scared about her baby. The operator told MOO to come into the hospital see the doctor. She visited L Hospital and they noted there was pain in her hands and MOO was recommended to take pain medication.

RR had a history of making false allegations against staff. RR was friendly with MOO when in a good mood but when she was angry RR could fight and hit and punch MOO and do bad things. Whenever RR was calm again she would apologise. They mostly got on with each other and RR allowed MOO to dress her hair and get closer than any other staff that worked with her. There had also been previous incidents when RR had hit and dragged and punched MOO. MOO had received training to deal with restraint and how to break away from RR and deescalate incidents by keeping a distance from RR. In this incident however MOO could not walk away as she was trapped between the door, dining table and chair. MOO noted that her employers and manager only interviewed the two staff and did not take a statement from RR about the incident. She noted that the manager EO assisted in formulating RR’s statement to the police and filled in the gaps for RR. RR bruises easily so the fact that there were no bruises on the body map supported MOO’s account that she did not hit RR.

MOO was cross examined by Ms Hartley for the DBS. She gave relevant evidence summarised as follows.

She thinks that BB was lying about what happened – BB originally said that MOO took a couple of steps and then hit RR on the back with a closed fist on the little finger (‘pinky’) side. BB had originally said MOO ran and then said that MOO took a couple of steps. The two staff, BB and MJL, are Filipino and MOO believed they were motivated to make up an allegation against her because she had previously said that Filipinos were of average height. They were angry with MOO and she apologised to them at the time but noticed a cold response from them and so they did not talk to her anymore. MOO never said anything offensive about them or Filipinos.

MOO accepts she did say in her minded to bar representations to the DBS that she might have unintentionally made contact with RR’s back. She did say she probably touched RR’s back but she did not know if she had. When MOO spoke to her union representative, and in response to their enquiries, MOO stated she raised her hands but maybe when she turned and followed RR, she may have unintentionally touched RR when she got the scales back from her. It may be that the witnesses who said MOO’s hand touched RR’s back were right but MOO never hit or intended to hit RR. She raised her hands across her hands and face to defend herself. She definitely did not punch RR’s back. MJL was lying like BB. The pair used the opportunity on the day to make up a lie about her – they spontaneously decided it was an opportunity to get revenge on her. It was malicious. EO also filled in the gaps during RR’s police report. MOO had complained to a team leader about EO posting personal information about service users on the team Whatsapp groups and creating a lot of Whatsapp groups and not following the employer’s instructions not to do so. EO wanted to get rid of her and what EO was wrote was different from the RR’s police statement. MOO never hit RR out of frustration or in return for the fact that RR had hit her with the scales.

LR is RR’s mother. She provided a witness statement and gave oral evidence in support of MOO. Her witness statement includes the following:

“2.

I have offered to support MOO by providing this written statement based on what my husband and I witnessed and were told in relation to the incident on Sunday 5th February 2023.

3.

On that day, as part of our weekly routine, my husband and I went to the Home to collect our daughter, RR.

4.

When RR got into the car, she said spontaneously, I hit MOO. She then added something like, I said I was sorry. or She has forgiven me.

5.

Later that day, possibly after attending a church service, although I do not remember exactly, the house manager, Ms EO, phoned my husband to inform him that there had been an incident.

6.

RR became distressed during that call and expressed worry that she was in trouble. Ms EO wanted us to reassure RR, that she was not in trouble.

7.

Ms EO went on to state that it was MOO who had allegedly hit RR and that the matter had been reported to the police.

8.

My husband, who holds Power of Attorney for RR jointly with me, attended a meeting a few days later where he informed the police officer involved in the case that we would not be pressing charges. We know the police officer personally, as he was our next-door

neighbour as a child, and had attended primary school with RR. We believe he is familiar with RR’s learning disabilities and autistic needs since childhood.

9.

My husband and I were both confused by the entire situation. Based on RR’s personality, she is usually very quick to report if someone has upset or hit her. It was surprising to us that RR did not show such concern in this incident.

10.

We also wish to express that MOO had been an extremely dedicated and patient member of staff since she started working with RR, around February 2022. During the difficult period following the national lockdown, RR’s behaviours had increased significantly, many of them physical. Despite this, MOO showed continued care, perseverance, and kindness.

11.

In fact, MOO’s support helped RR build a sense of trust and security, and we as parents were deeply appreciative of this.

12.

We were later informed by another member of staff that the incident may have occurred during a disagreement about RR needing to be weighed, which she refused. This is not uncommon given RR’s needs, and again we believe MOO handled such challenges with patience.

13.

MOO also made special efforts to build a bond with her hair, something which RR really enjoyed.

14.

1 personally provide this statement to explain MOO’s role in this matter, and the nature of her relationship with our daughter, which we have always seen as positive.”

LR gave extensive supplementary oral evidence in chief expanding upon this statement. It was all consistent with the statement and included reference to the Whatsapp messages she sent to MOO checking if MOO was ok and assuring MOO of her gratitude.

LR was not cross examined by Ms Hartley. This was on the basis that LR had not been present during the incident and could not give any direct evidence.

We are satisfied that LR was an honest and reliable witness. We were impressed by her and are very grateful that she attended the hearing and gave oral evidence, particularly how sensitive and stressful it would have been to give evidence about her own daughter and RR’s behaviour to others and its impact. Nonetheless, we were not able to place weight on LR’s beliefs that RR would have reported to her if she had been hit by MOO or that MOO would have been patient and not have hit RR in return. This is because LR was not present to witness the incident and did not have the benefit of being a direct witness. We accept all the other evidence she gave.

We listened to the voice note recording from team leader Z who had called MOO. Z said that RR hurt MOO and the employer should question the girls (BB and MJL). Z said that RR says that she (RR) was the one that hit MOO and that the employer needed to ask questions about that part.

Again, we were not able to place any weight on this recording as it was simply a hearsay account, albeit from a team leader, purely based on what Z had heard from another about the incident. Z was not present as a direct observer nor witness to the incident.

Based upon all the evidence considered above we make a finding of fact that the finding relied upon by the DBS, and as set out in the Decision, is established on the balance of probabilities:

The Appellant has not established any mistake of fact in relation to the DBS’s finding. There is no dispute that it amounts to a finding of relevant conduct as a matter of law (causing harm to RR). In coming to this conclusion we have had regard to the following evidence, facts and reasons:

The most plausible and more likely explanation, as we find, is that contained in BB and MJL’s detailed accounts of seeing MOO hit RR on her back with a clenched fist as RR had her back turned (and in MJL’s case also hearing the sound of MOO’s fist striking RR’s back). It is likely that MOO lashed out in frustration after RR caused the weighing scales to hit MOO’s hand and forearms (prompting MOO to say “ouch”) and that BB and MJL saw it. MOO did not suggest she was acting in self-defence, rather she denies any deliberate punch to RR’s back, and we find that she was not doing so when she hit RR. Instead, she did so in retaliation – out of frustration and anger at RR. This was made all the more acute because MOO was pregnant and concerned about the impact of being hit with the scales on her pregnancy.

We reject MOO’s account, as set out in her correspondence and submissions to the employer and DBS and in her written and oral evidence to the Tribunal, as unreliable. We accept the DBS’s case on the balance of probabilities in light of the evidence, facts and matters detailed above.

We begin by addressing the grounds of appeal on which the Appellant was granted permission to appeal before addressing the submissions as grounds of appeal pursued at the hearing.

We do not find there to be any mistake of fact in the DBS’s finding of relevant conduct for the reasons set out above.

We do not accept there was any material error of law in the DBS’s barring decision based upon the complaints of procedural unfairness regarding the employer’s investigatory and disciplinary processes. Any flaws in employment and dismissal process would be a matter for the employment tribunal in any challenge. The Appellant had an opportunity to give an account to the employer regarding the incident in response to the complaint and to appeal panel before the final disciplinary decision to dismiss her. The fact that RR was not interviewed by the employer and did not wish to pursue a criminal complaint is not material when she did give an account to the police which we have had an opportunity to consider together with all the evidence.

The same applies to the DBS’s investigation and process. It reasonably considered all the evidence provided to it and was not under a further duty in the circumstances of this to conduct further investigations into the evidence. RR was interviewed by the police even if not by the employer and a record was made of her account but a wish not to pursue the matter. The DBS approached all the evidence reasonably in its Barring Decision Process document. In any event, any flaws in the process by employer or DBS would not be material. The Appellant had the opportunity to present all relevant evidence on her behalf to the Tribunal during the appeal proceedings. We have had the opportunity to assess all the evidence on this appeal, including the Appellant’s oral evidence, and have taken into account the absence of oral evidence or cross examination of RR, BB and MJL. Nonetheless, we assess their contemporaneous accounts are reliable.

We do not accept that this ground gives rise to any mistake of law. The DBS did not fail to take account of relevant evidence considered MOO’s representations regarding:

The DBS was reasonably entitled to find the allegation proven on the balance of probabilities notwithstanding these representations given the evidence, facts and matters set out above. It made no error of law

We do not accept that there is any mistake of law based upon the barring decision being disproportionate or irrational. We find that the Decision was proportionate and rational.

When reaching its decision, the DBS relied on a risk assessment that MOO may repeat her behaviour if she were allowed to work with vulnerable adults again in the future in circumstances where she had not fully acknowledged her harmful behaviour (FDL – [93]). In this regard the DBS noted that the circumstances in which MOO’s behaviour occurred are not uncommon in regulated activity.

Irrationality was described by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, [1984] 3 All ER 935 at [410] as follows:

“By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness”. … It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

We are satisfied that the DBS risk assessment was not irrational – particularly in circumstances where MOO has continued to deny her conduct. Thus, she has demonstrated no insight or attempt to remediate the risk she poses. Since MOO continues to deny/minimise her actions, it follows that she cannot have fully reflected on or sought to address what drove that behaviour. The DBS was entitled to conclude that such a person may pose an ongoing risk to vulnerable adults in regulated activity. This cannot be described as being irrational or in defiance of logic, let alone to such a degree that no sensible person who had applied their mind to the question could have arrived at the same conclusion.

Even leaving aside the fact that unless a decision of the DBS is legally or factually flawed, the assessment of (and, by extension, solicitude about) the risk presented by a person is a matter for the DBS (per Lewis LJ at [43] of AB), the above analysis is unimpeachable in light of MOO’s continued denial of what amounted to an assault upon a vulnerable adult. We have found her denial to be unreliable and have rejected her explanation as set out above. This means that the DBS made no mistake in finding she lacked insight and empathy and this increases the risk of a repeat of the conduct.

Whilst the DBS’s requirement to bar was engaged under paragraph 9 of Schedule 3 of the 2006 Act irrespective of whether MOO was regarded as posing an ongoing risk, the DBS was entitled to conclude that someone who responded to the challenging behaviour of a vulnerable adult by striking them with a clenched fist may pose an ongoing risk, particularly once regard is had to MOO’s continuing denial/minimisation of her actions.

MOO’s behaviour amounts to relevant conduct for the purposes of the 2006 Act and the DBS having regard to relevant conduct per se cannot be irrational.

In carrying out its assessment of proportionality the Upper Tribunal is not undertaking a rationality assessment of the DBS’s decision proportionality but making our own assessment. We are not concerned with the process followed by the DBS in assessing proportionality but makes the assessment afresh for itself (KS at para. 50).

It is accepted that barring represents an interference with a person’s private life for the purpose of Article 8 of the European Convention on Human Rights (ECHR) but the question is whether it is proportionate. We consider that there was no mistake of law in the barring decision based upon the findings made at the time, and as now made following the hearing, on the grounds of proportionality.

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:

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 inclusion on the ABL being proportionate based on the finding that the DBS made at the time (and that finding is confirmed because we have found the finding contained no mistakes of fact).

On the basis of the finding that the DBS made and we have upheld, we are satisfied that it was proportionate and reasonably necessary to bar MOO from regulated activity with vulnerable adults in order to achieve the public interest in the (important and) legitimate safeguarding aim.

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 no other measures were available sufficient to adequately safeguard the risk of future harm that the DBS rationally decided that MOO posed. 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 the findings as originally made and upheld by us. The decision that the Appellant posed a risk of repeating similar acts at the time of the Decisions was also rational. We find that the DBS’s evaluation of the future risk continues to be rational as at the time of the hearing.

In so far as striking a fair balance is concerned, the question is whether, balancing the severity of the effects of barring on the rights of the Appellant against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. In circumstances where the objective of the barring decision is the protection of vulnerable adults, there are other sectors in which MOO can work and no other effects of barring (beyond the loss of her ability to work in regulated activity) are raised, the effect of barring on the rights of the Appellant does not outweigh the objective of the barring decision in this case.

We consider the barring Decision to include MOO on the ABL to be proportionate because it strikes a fair balance bearing in mind the following aggravating and mitigating factors:

We are therefore satisfied that barring was necessary and struck a fair balance between MOO’s right to a private life and the public interest in safeguarding. The DBS expressly carried out the “balancing act” exercise required. Based on the findings we are satisfied for ourselves that barring strikes a fair balance, notwithstanding the impact that it has had and will have upon the Appellant.

We also take into account all the mitigating factors set out above. We recognise and understand the pressures placed upon MOO throughout her employment, the stressful nature of the barring proceedings and appeal and the impact upon her of barring. We know that this decision will come as a disappointment to her

The decision of the Upper Tribunal is that the Appellant’s appeal against the barring Decision of the DBS dated 13 February 2024 is dismissed. There was no mistake of fact or law in the decision to include her on the Adults’ Barred List. The decision to include her on that list is confirmed.