[2024] UKUT 42 (AAC)

This ground has no merit for the short reason that it left out of account, or did not sufficiently focus on, the parts of the definition of “relevant conduct” in Schedule 3 of the SVGA which provide that relevant conduct is “conduct which, if repeated against or in relation to a child/vulnerable adult, would endanger that child/vulnerable adult or would be likely to endanger him”: per paragraphs 4(1)(b) and 10(1)(b) of Schedule 3. On the basis of the words we have underlined in the DBS’s decision letter set out in paragraph 21 above, then DBS made its decision, at least in part, on the basis that even if the vulnerable adult did not in fact suffer any harm as a result of the filming, sharing of the film and ‘banter’ about her between NC and her partner, such actions if repeated against or in relation to another vulnerable adult (or child) would be likely to harm that vulnerable adult (or child): see, relevantly, paragraphs [20]-[21] of SA. In so doing, the DBS directed itself properly on the law.

Moreover, we can find no warrant for construing the ‘if repeated’ conduct here narrowly as being limited to conduct of which the vulnerable adult (or child) was unaware. We note that in fact the reason what NC did on or about 19 February 2021 came to light was because, for reasons we on not need go into, NC’s employer became aware of the filming of the vulnerable adult by NC, the sharing of those videos with NC’s partner and their conversations about the vulnerable adult. Moreover, this was reported to the care home and they discussed what had occurred with the vulnerable adult’s husband (see page 43). It is therefore possible that the vulnerable adult did became aware of what occurred and, if she had, it was conduct which was “likely to [harm] a vulnerable adult”: per paragraph 10(1)(a) and (2)(a) of the SVGA: and see further paragraphs [18]-[19] of SA.

Be all of this as it may be, the DBS’s decision on its face was founded not on the vulnerable adult in fact being harmed or that the conduct was likely to harm her. The decision was based on it being “conduct which, if repeated against or in relation to a vulnerable adult [or child] would [harm] the vulnerable adult [or child] or put a vulnerable adult [or child] at risk of [harm], or would be likely to [harm] the vulnerable adult [or child] or would be likely put a vulnerable adult [or child] at risk of [harm]”. Given the test can be satisfied if the conduct, if repeated, on the basis of the likelihood of it putting a vulnerable adult or child at risk of harm, this is broad enough in our judgment, on the fact of this case, to cover the likelihood of the other vulnerable adult (or child) waking to see they are being filmed or being awake with their eyes closed and therefore hearing the derogatory comments (i.e. ‘the banter’) being made about them. In both circumstances, the filming would be being done without the consent of the vulnerable adult (or child) and would be breach of their privacy and dignity. The likelihood of them being put at risk of harm if the conduct was repeated is obvious.

This is sufficient to dispose of the first ground of appeal. The DBS were entitled to be satisfied that NC had engaged in relevant conduct in relation to vulnerable adults and children under, respectively, paragraphs 10(1)(b) and 4(b) of Schedule 3 to the SVGA.