[2024] UKUT 42 (AAC)

However, we deal first with section 58 of the SVGA and whether it precluded the DBS from relying on NC sharing the film with her colleague/partner and engaging in ‘banter’ with him about the vulnerable adult. We do so because NC’s arguments under (we think) both grounds of appeal relied four-square on section 58 as, in effect, meaning that the DBS could only rely on the act of NC filming the vulnerable adult. NC’s argument was, as we understood it, that as a result the DBS’s erred in law in its approach both to relevant conduct and to the proportionality of barring her because the DBS took into account matters that could not in law be taken into account, namely the sharing of the video and the discussion she had with her partner about that video.

We have no hesitation in rejecting this argument and NC’s reliance on section 58 of the SVGA. In our judgment, section 58 does not preclude from the consideration as to what is “relevant conduct” any ‘activity’ which is carried out in the course of a family relationship or a personal relationship. We say this for the following reasons.

First, and shorn of any consideration of the statutory words or other provisions within the SVGA, on the face of it to read section 58 as precluding the DBS from taking account of any activity which is carried out in the course of a family or personal relationship would very significantly undermine the safeguarding effect of the SVGA. For example, but one which we stress has nothing to do with this case, if a parent were either convicted or found on the balance or probabilities to have very seriously harmed their children by hitting them or sexually abusing them, that would be an act or activity which was carried out in the course of a family relationship and so could not be relied on by the DBS. Such a result is, we consider, one which plainly runs contrary to the general purpose of the SVGA and would require very clear words to mandate it. No such clear wording appears in section 58.

Second, the wording of section 58 about the Act not applying to any activity which is carried out in a family or personal relationship is not on the face of section 58 expressly tied, or made applicable, to the definitions of “relevant conduct” found elsewhere in the SVGA. If anything (see further our third point below), it may be relevant to what constitutes “regulated activity”. There is therefore no statutory requirement to read section 58 as limiting the matters or evidence that may be taken into account in deciding whether “relevant conduct” has been established under paragraphs 4 or 10 of Schedule 3 to the SVGA. Moreover, nothing in, for example (and to make relevant to the example we have used in the immediately preceding paragraph), paragraph 4 of Schedule 3’s definition of relevant conduct in relation to children limits the conduct that may be taken into account to conduct which takes place outside a family relationship. Indeed, we struggle to see how paragraph 4 in Schedule 3 can be said to be so limited, even impliedly, given its lack of any reference to section 58 and given, for example, that on the face of it a parent who has sexually abused one of their children would come clearly within the terms of paragraph 4(1)(e) of Schedule 3 to the SVGA.

Third, other aspects of the SVGA show in our judgment that section 58 is not relevant to whether relevant conduct has occurred. As we have noted above, section 58 does not refer to any other sections in the SVGA and is about activities rather than conduct. Importantly, and relevantly, section 6 of SVGA is concerned with who a “regulated activity provider” is. Section 6 provides the following:

“Regulated activity providers

6.-(1) A reference to a regulated activity provider must be construed in accordance with this section.

(2)

A person (P) is a regulated activity provider if—

(a)

he is responsible for the management or control of regulated activity,

(b)

if the regulated activity is carried out for the purposes of an organisation, his exercise of that responsibility is not subject to supervision or direction by any other person for those purposes, and

(c)

he makes, or authorises the making of, arrangements (whether in connection with a contract of service or for services or otherwise) for another person to engage in that activity.

(3)

A person (P) is also a regulated activity provider if section 53(4) (fostering) so provides.

(4)

A person (P) is also a regulated activity provider if he carries on a scheme—

(a)

under which an individual agrees with P to provide care or support (which may include accommodation) to an adult who is in need of it, and

(b)

in respect of which a requirement to register arises—

(i)

in relation to England, under section 10 of the Health and Social Care Act 2008, or

(ii)

in relation to Wales, under Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016.

(5)

P is not a regulated activity provider if he is an individual and the arrangements he makes are private arrangements.

(6)

Arrangements are private arrangements if the regulated activity is for, or for the benefit of, P himself.

(7)

Arrangements are private arrangements if the regulated activity is for, or for the benefit of, a child or vulnerable adult who is—

(a)

a member of P's family;

(b)

a friend of P……

(11)

“Family” and “friend” must be construed in accordance with section 58.”

We have underlined parts of section 6 as in our judgment those underlined subsections provide the ‘tie’ with regulated activity and section 5 (see paragraph 10) above. More importantly, they also link to section 58 and make plain, in our judgment, that section 58 is distinguishing activities carried out, per section 6(5) and (7) within a (private) family or (private) personal relationship from those carried out by regulated activity providers. This is underscored by the effect of section 6(3) and section 53(1) and (4) which, in effect, bring private foster parenting arrangements sack into “regulated activity” notwithstanding the terms of section 58.

Fourth, and following on from the last point, reading section 58 as being unrelated to relevant conduct does not rob that section of any useful content. In our judgment, what section 58 is providing for is that the SVGA, and any barring decision made under it, does not affect or prevent any person, including a person placed on one or both of the Barred Lists, from carrying out activities in a family or personal relationship. By way of example, the barring decision in this case does not prevent NC from caring for a vulnerable family member who lives in her household. This accords with the paragraph 157 of the Explanatory Notes to the SVGA and the example those Notes give that “a person included in the children’s barred list could look after his grandchildren”. We should add that we are mindful of the limited value that such Explanatory Notes may have in interpreting the meaning of statutory provisions: per paragraph [30] of R(O) v SSHD [2022] UKSC 3; [2023] AC 255. The example of caring for grandchildren not being precluded which is given in the Explanatory Notes does no more than confirm our view about what the wording in section 58 is concerned with.

NC had a supplementary argument about section 58, which we also reject. She argued that “section 58….imparts an Article 8 proportionality test into purported regulated activities which concerns private correspondence between two individuals in the course of a personal relationship”. We consider that the reference in the argument to ‘regulated activities’ must have been intended to read “regulated conduct” as it is not disputed that NC met the ‘regulated activity’ test in section 5 and Schedule 4 of the SVGA because she was employed as a Healthcare Assistant for Interact Medical. Furthermore, although the sharing of the videos of the vulnerable adult was carried out whilst NC was engaged in regulated activity, the critical issue is whether that sharing amounted to relevant conduct. Section 3 of the SVGA bars a person from working in regulated activity relating to children and/or adults, but it is the ‘harmful’ relevant conduct which provides the foundation for preventing a person from working in regulated activity.

In any event, there is no foundation for section 58 importing any proportionality test into the tests for barring found in paragraphs 3(3) and 9(3) of Schedule 3 to the SVGA because, for the reasons given above, section 58 has nothing to do with those tests.

NC’s grounds of appeal therefore have to be considered without any support from section 58 of the SVGA as that section has no relevance to either ground. For completeness, the DBS did not err in law in taking account of NC’s sharing of the videos of the vulnerable adult with her partner and her discussions with her partner about the vulnerable adult when coming to its decision of 21 October 2021.