[2024] UKUT 42 (AAC)

The two grounds on which permission was given for this appeal to be brought by NC to the Upper Tribunal are as follows.

First, it was arguable the DBS’s decision was erroneous in law because it was arguable that NC having “engaged in relevant conduct” in relation to the service user was not established under paragraphs 3 or 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (“the SVGA”).

The basis for this ground of appeal is that the conduct relied on in the DBS’s decision was the actions of NC in filming the service user while the service user slept, sharing that video with her then partner and commenting on the service user while she slept. Importantly, none of these actions were known to the service user. If NC’s conduct was the actions of her filming the service user while she slept, sharing that film privately with her then partner and talking about the service user with her partner as she slept, it was arguable that that was not conduct which in fact harmed the service user (as she was unaware of the filming, sharing of the video and the comments), did not cause the service user to be harmed (for the same reasons), did not put her at risk of harm (for the same reasons), was not an attempt to harm her (for the same reasons), and was not conduct that was inciting another to harm the service user.

Put shortly, the arguable error of law was holding the filming of the service user, the private sharing of that film with one other person and the comments made about the service user in that film by those two persons, none of which actions were known, or were intended to be known, to the service user, as conduct that ‘harmed’ the service user. The point was said to be encapsulated in whether conduct that is unknown to the child or vulnerable person, and does not otherwise harm that person (e.g. theft from a vulnerable adult which they are in fact unaware of (SA v ISA [2013] UKUT 93 (AAC); [2014] AACR 21)), may be said as a matter of law to be conduct that harms the person or is likely to harm that person, or which if repeated would harm or be likely to harm the person, if the conduct is unknown to the person (and would not otherwise harm that person).

Second, it was arguable that the decision was in error of law as being a decision which was disproportionate given: (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.

In giving permission to appeal Judge Wright stated that it would assist in relation to both grounds of appeal if the parties could address the effect of section 58 of the SVGA. It was suggested that on the face of the wording in section 58, which was not seemingly tied to ‘regulated activity’ in section 5 of the SVGA, it may be arguable that it precluded the DBS from relying on NC sharing the video with her (then) partner and discussing the video with him as both were acts or activities which took place (per section 58(2)) in the course of a personal relationship.

Judge Wright, however, refused NC permission to appeal on the grounds she advanced. NC had not disputed any of the facts on which the DBS’s decision was based and she raised no error of law arguments, save insofar as her arguments about it being a one-off and about it being a private sharing of the video with her partner in which she intended no harm, were encompassed in the grounds on which permission to appeal had already been given.