[2024] UKUT 42 (AAC)

The final decision letter sent to NC reads, in material respects, as follows:

“We are satisfied that you meet the criteria for regulated activity because of your employment as a Healthcare Assistant with Interact Medical.

We have reviewed all the information we hold and are satisfied of the following:

That on, or around, 19 February 2021: You sent videos of a vulnerable adult, [name redacted], to your colleague, [name redacted]; and You actively engaged in an exchange of messages with [your colleague] through Facebook messenger which were derogatory in nature. The DBS is satisfied you have engaged in conduct which harmed or could harm children and vulnerable adults. This is because you have admitted to filming a vulnerable adult without her knowledge or permission and sending the videos via Facebook messenger to your partner / colleague.

The DBS is satisfied that your actions were for your personal entertainment purposes having noted the language used in the exchange of messages that accompanied the videos and your admission that your conduct was that of ‘banter’ albeit wholly inappropriate. The DBS are satisfied that you instigated the exchange of messages with your partner during which you were an active participant in the conversation; you did so whilst on duty in regulated activity and therefore have not demonstrated behaviours consistent with those expected of a person in your role.

The DBS is satisfied that during the exchange of messages, your partner made a number of comments in respect of abusing the vulnerable adult which you did not challenge or report. Whilst there is no evidence that you had any reason to believe that your partner made the comments with the intention of engaging in abuse, you found the comments amusing. It is acknowledged that there is no evidence to suggest any physical abuse occurred prior to or after the exchange of messages however this does not serve to diminish the seriousness of your actions which you have sought to justify as ‘banter’. The DBS have concerns that you did not challenge your partner on his statements made which raises concerns in respect of your ability to safeguard and recognise risk. In addition there are concerns that you have abused your position and the vulnerabilities of a person in your care for yours and your partner’s entertainment.

The DBS acknowledge that the images were sent privately to your partner and were isolated to one exchange of messages, however this does not make your behaviour any less harmful. You instigated the conversation, sharing images of a service user in a vulnerable state, being asleep, and made no attempts to stop the conversation when your partner made abusive comments. Your action in sharing the images had potential to incite your partner to behave in a similar manner and your failure to challenge him on his comments made suggests that your actions had potential for harm to be caused to a vulnerable adult.

Whilst the vulnerable adult appears to have been unaware of the incident, should similar conduct be repeated in respect of another who was aware, or in the presence of other vulnerable adults, it is likely to cause significant emotional harm.

The DBS have concerns that you may film vulnerable adults in the future or engage in conversations of a derogatory nature involving vulnerable adults for personal entertainment. In doing so, there are concerns you may incite others to engage in a similar manner and fail to protect those in your care from the risk of further abuse. Whilst you have acknowledged your conduct was inappropriate, you have failed to fully address the concerns raised by the DBS and therefore it appears likely that you may engage in such conduct again in the future given your explanation of the situation as ‘banter’, suggesting you have minimised the seriousness of your conduct.

Given the potential for significant harm, the DBS are satisfied that it is appropriate to include your name in the Adults’ Barred List.

The behaviour is transferrable to regulated activity with children where there may be opportunities for you to film and discuss children in a derogatory manner. Further, you may not identify or report safeguarding concerns, placing them at risk of significant harm. It therefore is appropriate to include your name in the Children’s Barred List.”

We have underlined one passage in the final decision letter as it relates to the first ground of appeal and whether the DBS erred in law in its approach to whether what NC did on 19 February 2021 amounted to “relevant conduct” under the SVGA.