Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 192 (AAC)

Fecha: 01-Nov-2022

Errors of law

Errors of law

Second, whether the DBS erred in law in coming to its decision by failing to adequately investigate key relevant points before making its decision. This point may arise out of the ‘duty of enquiry’ legal principle identified in Secretary of State for Education and Science v Metropolitan Borough of Tameside [1976] UKHL 6; [1977] AC 1014 (at 1065B): that is, the need for the DBS to ask the right questions and to take reasonable steps to acquaint itself with the relevant information to enable the DBS to answer those questions correctly. The arguable points that may have required further investigation include (in no particular order):

(i)

the terms of JC’s contract of employment with Horizon Care and what within those terms compelled JC not to talk about her own life (including her own financial situation) with persons to whom she was giving care or required her not to solicit or accept loans from such persons;

(ii)

the legal and evidential basis for JC’s employer’s decision that JC had committed a “gross breach of trust” in accepting £1,500 from a vulnerable client;

(iii)

how the vulnerable adult had accessed the money said to have been lent by that person to JC and/or, if the said sum was not withdrawn from a bank or building society, the basis on which that person may have kept such a large sum of money in her home;

(iv)

what information (if any) the employer may have held concerning the vulnerable adult’s alleged alcohol dependence (given the same’s potential relevance to that person’s vulnerability and credibility); and

(v)

any further information held by the Devon and Cornwall constabulary which had led it to conclude (a) that no coercion had taken place (in terms of the alleged loan being given to JC) but (b) that JC had abused her position of trust

Third, and in the alternative to the first two grounds of appeal, even if JC did accept a loan from the service user, whether the DBS erred in law and arrived at an irrational decision in founding its decision on a loan that was, on the face of the police evidence, freely given by the vulnerable adult to JC. This ground raised the question about what was abusive of a position of trust or amounted to conduct that endangered a vulnerable adult by JC accepting a loan of money that was given willingly to her by the service user as an autonomous adult, where, again according to the police, the service user was not vulnerable other than in terms of her mobility and where JC had not asked the service user for a loan?

Putting the third ground of appeal another way, or as an alternative ground, what was the legal and evidential basis for the DBS concluding, contrary to the view of the police, that “the money has only been given due to coercion that has taken place” (the coercion being by JC )?