[2024] UKUT 42 (AAC)

We also do not consider that the DBS acted disproportionately in being satisfied that it was appropriate to include NC on both barred lists under paragraphs 3(3)(b) and 9(3)(b) of Schedule 3 to the SVGA.

Our jurisdiction here is a narrow one. The decision as to whether or not it is appropriate to include NC on either barred list is not a matter for us: section 4(3) of the SVGA. Moreover, given the SVGA provides that the DBS must include the person on a barred list if it is satisfied that the person has engaged in relevant conduct, that they have reason to believe that the person has (or is or might in the future) be engaged in relevant regulated activity, and it is satisfied it is appropriate to include the person in the list, the proportionality analysis cannot extend to considering whether a less intrusive means could have been used: see paragraph [20] of Bank Mellat v HM Treasury (No.2) [2013] UKSC 39; [2014] AC 700. The only outcome available under the SVGA, which the DBS is required to do if the three conditions described earlier in this paragraph are met, is to include the person on the barred list (or lists). The SVGA does not admit of any lesser outcome. In these circumstances, it seems to us that the argument that the DBS acted disproportionately in placing NC on both lists reduces to a Wednesbury argument about the DBS, for example, having taken account of all relevant matters and not having arrived at a decision that no rational decision maker would have arrived at on the evidence. Moreover, in considering any such argument we must bear in mind that we must afford appropriate weight to the judgement of the DBS as the body enabled by statute to decide appropriateness: per SA v SB & RCN [2012] EWCA Civ 977; [2013] AACR 24.

The starting point on the facts of this case, moreover, is that NC had engaged in relevant conduct as described above. Furthermore, the decision letter when read with the “Barring Decision Process” document on pages 49-63 show in our judgment that the DBS had regard to NC’s representations, took them into account and weighed them against the other relevant evidence. The points referred to under the second ground of appeal - (i) the one-off nature of the actions of NC on or about 19 February 2021, (ii) that the video was shared privately with one other person and was not intended to be shared with anyone else, (iii) NC not being the instigator of the potentially abusive comments during the sharing of the video, (iv) the lack of any harm to which the service user came from the filming at the time (as she was unaware of it), (v) the remorse expressed by NC, (vi) NC’s history of working in the care sector without incident (other than the actions relied on by the DBS), and (vii) the lack of risk of NC repeating such actions in the future – are in our final analysis no more than merits points which it was for the DBS to evaluate in coming to its decision and to which it did have sufficient regard: see for example the sixth paragraph in the decision letter set out in paragraph 21 above. Once this point is reached, we cannot conclude that the decision to place NC on both barred lists was a decision which no reasonable decision maker could have arrived at. For the reasons the DBS gave, the decision was one which was rationally open to the DBS on the evidence.

NC argued specifically that the conversations between her and her partner had been taken out of context. Seen in the proper context they were no more than “light-hearted” comments between a couple about work in which no harm was in fact done to the vulnerable adult. It is argued that “significant weight” should be given to NC’s assertion that what was said was no more than “banter”. This last argument betrays the weakness in this argument under an error of law ground. The weight to be accorded to the evidence is classically for the primary decision maker (here the DBS). The DBS took account of NCs argument about the conversations being no more than “banter”. It was entitled to conclude, for the reasons it gave, that to describe the conversations in this way was to downplay the seriousness of what had occurred and what had been discussed, and itself gave rise to a concern about the risk of NC repeating such conduct in the future given her downplaying of the seriousness of what she had done. It is not for us under an error of law ground to re-evaluate this evidence and come to our own view about the weight to be accorded to it.

We address finally an argument made on behalf of NC under this ground of appeal about Article 8 of the European Convention on Human Rights (“ECHR”) in the context of the proportionality of the DBS’s decision to bar NC from working in regulated activity with vulnerable adults and children. There is no dispute that the DBS considered NC’s Article 8 rights in its decision, where it said relevantly:

“Consideration has been given to your rights as outlined in Article 8 of the European Convention on Human Rights. It is noted that you have been employed in a number of care positions; it is reasonable to expect that during this time you have gained skills and experience relevant to employment in this field, your ability to utilise these to further your career will be adversely affected as a result of a bar. This in turn may impact on your future earning potential.

However, the DBS are satisfied that you pose a risk of harm to vulnerable groups in that you may engage in conversations of a derogatory nature relating to those in your care and fail to identify and act on potential safeguarding concerns.

There are currently no safeguards in place from other agencies; including your name in the lists is therefore necessary to protect vulnerable groups in the future. Given the potential for both emotional and physical harm, the need to safeguard outweighs your personal interests and the DBS is satisfied that including your name in both the Adults’ and Children’s Barred List is a proportionate response.”

We struggled to understand NC’s argument here, but it appeared to be that in carrying out this Article 8 balance the DBS had not had regard to the private nature of the filming and conversations between NC and her partner and the protections Article 8 afforded to those aspects of NC’s private life. The submission in the end argued that it was not proportionate under Article 8 to use this private information to reach a barring decision. We do not consider this argument has any merit, insofar as it can arise under the grounds on which permission was given and has a status independent of section 58 (see paragraph 30 above).

Even if it is to be assumed (which we find very doubtful) that NC was not acting in the course of her employment when she filmed the vulnerable adult and spoke to her partner about the filming (and we note here that one of NC’s other arguments was that the conversations took place in part because both she and her partner worked on the same place of work and knew the vulnerable adult, and they were taking about her in that context), and it is assumed to be arguable that the filming and sharing of the film was all done in NC’s ‘private life’ (or is about her ‘correspondence’) under Article 8, given the serious and important nature of this evidence we can find no case law that suggests that such evidence must be ignored by the DBS once it has been disclosed to it under the SVGA. Moreover, it seems at the very least odd that the product of the unwanted filming of a person, which prima facie is a breach of that person’s private life, becomes the wrongfully filming person’s private life or correspondence. In any event, even if such an argument is tenable under Article 8(1), in our judgment any interference by the DBS in NC’s private life or correspondence (by relying on the evidence of her filming the vulnerable adult and talking about that vulnerable adult with her partner) would be amply justified under Article 8(2) as being provided for under the SVGA and because it is “necessary in a democratic society in the interests of….public safety,….for the protection of health…, or for the protection of the rights and freedoms of others”