[2025] UKUT 036 (AAC)

We are not persuaded that the DBS made a mistake about a material fact in finding that SB had failed to follow safeguarding procedures on 10 August 2022 by failing to secure a commode/shower chair prior to assisting VA to use it. SB (rightly) concedes that the said chair had not been appropriately secured on that day and that VA’s care plan stated that it should have been secured. The latter obligation being imposed by VA’s care plan was accepted by SB in her interview with her manager on 10 August 2022. That admittance provides a sufficient evidential basis for the DBS’s finding that such a requirement was part of the safeguarding procedures Excelcare had in place for VA on 10 August 2022. Nor does SB argue that the DBS was wrong or mistaken in fact in finding that she, SB, failed to secure the chair. The requirement to do so was in VA’s care plan which SB had not read but should have read (see our comment in paragraph 36 above), and her failure to read VA’s care plan formed part of her failure to follow safeguarding procedures and her consequent failure to secure the chair. SB was co-caring for VA with HA that day and it was the responsibility of both of them to ensure that the chair was secured in the tilting position. Although SB referred to HA being a more senior carer, that was only in respect of HA having more experience as a carer including, particularly, for VA. It was no part of SB’s case before us, and there was no evidence to this effect, that she was required to take a subservient role to HA or only do as HA told her.

In all these circumstances, we can find no proper basis for the DBS having made a mistake about a material fact in not making further findings of fact about HA’s role in what occurred on 10 August 2022. On the evidence, including the admissions of SB, the DBS was not mistaken in finding as a fact that SB had failed to follow safeguarding procures in that she (along with HA) had failed to secure/tilt the commode chair before VA used it. Insofar as the DBS were required as part of a judgement as to relative culpability to consider HA and SB’s respective responsibilities and roles, in our judgement it did so sufficiently in its decision.

Nor did the DBS make any material mistake of fact in finding that SB had failed to follow safeguarding procedures on 10 August 2022 by failing to seek medical assistance and by moving VA from the floor without assessing her injuries. Again, the content of the safeguarding procedures and requirements under which SB was working that day can be inferred from her admissions with her Excelcare manager on 10 August 2022. The material safeguarding rules, which SB accepted in the 10 August 2022 interview she knew about from training, including manual handling training, were (i) never to support someone up from the floor, particularly following a fall, and (ii) if someone had hit their head (as VA had), they should not be moved and medical assistance must be called for. On her own evidence, SB (with HA) moved VA from the floor without assessing HA’s injuries and had not called for medical assistance.

Seen from this correct perspective, whether the DBS made a mistake of fact about whether HA was non-verbal or could not communicate at all is, in our judgement, immaterial. SB relies on VA not making any noise, and being conscious, as the reason VA was moved from the floor. However, the core safeguarding faults were moving VA from the floor and not calling for medical assistance (i.e. an ambulance) while VA was on the floor. SB’s assessment of VA’s injuries was irrelevant in terms of those two safeguarding requirements, unless SB was being instructed to make such an assessment by a ‘999’ operator whilst VA was on the floor, which she was not.

We further reject the error of law argument made on behalf of SB that the safeguarding policies/requirements of leaving VA on the floor and calling an ambulance in any fall situation were irrational, and thus that they were requirements SB was not obliged to follow or at least could be excused by the DBS from not following in terms of assessing the harm of SB’s acts. Much was made on behalf of SB of the harm that might have been done to VA had she been left lying face down while waiting, perhaps for a long time, for the ambulance. However, on the facts SB said she could see VA was conscious and breathing. Perhaps more importantly, what this argument leaves out of account is the role the ‘999’ or ambulance service operator would have taken in enabling SB and HA to assess VA while waiting for the ambulance, and whilst VA remained on the floor, had they followed the safeguarding procedures and called an ambulance.

The penultimate error of law argument is that the DBS erred in law in making a disproportionate decision to include SB on both barred lists. The arguments here for SB at times treated ‘disproportionate’ as a synonym for ‘irrational’. That is a mistake. As case law such as the first sentence in paragraph [84] of In re B (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1991 shows, properly understood, the argument that the DBS made a disproportionate decision is not an argument that the DBS erred in law in the procedure it adopted in coming to its decision that it was proportionate to place SB on both lists. The argument here is that the DBS erred in law on 12 May 2023 because the barring decision was disproportionate. We have to decide for ourselves whether the decision was disproportionate (see the same citation from In re B). Following Bank Mellat v HM Treasury (No.2) [2013] UKSC 39; [2014] AC 700, and paragraphs [20] and [74] of that decision in particular, this reduces to the fourth criterion in that case, namely whether the impact on SB’s (Article 8) rights is disproportionate to the likely benefit of the barring decision. This has to be assessed in the context (i) of the appropriateness of barring not being a matter for us (see section 4(3) of the SVGA), and (ii) there being no less intrusive measures available: the DBS must bar a person if the person has engaged in relevant conduct, the DBS has reason to believe they have engaged (or might in the future engage) in regulated activity with children/vulnerable adults, and the DBS is satisfied it is appropriate to include the person on the lists. In other words, the question we have to decide is whether the decision to bar was a disproportionate interference with SB’s rights to work with vulnerable adults and children.

We do not consider the DBS’s decision was disproportionate. It was not therefore in error of law.

An interesting issue may arise as to whether in evaluating whether the barring decision was disproportionate, the Upper Tribunal has to decide this question on the basis of the facts as the DBS found them or the facts which we have found the DBS was not mistaken about. We heard no argument on this issue. The decision of the House of Lords in Huang v SSHD [2007] UKHL 11; [2007] 2 AC 167 might suggest that it is for the Upper Tribunal to decide whether the barring decision was disproportionate having established the relevant facts: see paragraph [15] of Huang. However, it may be an important consideration that the fact finding arose in Huang because the relevant statute enabled what is now the First-tier Tribunal, under section 65 and paragraphs 21(1) an (3) in Schedule 4 to the Immigration and Asylum Act 1999, to review any finding of fact on which the decision was based when deciding whether the decision against the appeal was brought was not in accordance with the law. The error of law jurisdiction in Huang therefore could include reviewing (and redeciding) issues of fact. Under section 4(2) and (7)(a) of the SVGA, however, it may be arguable that ‘facts’ and ‘law’ are kept separate from one another. Moreover, the case law on proportionality is clear that the Upper Tribunal is not carrying out a full merits reconsideration (see B v ISA [2012] EWCA Civ 977; [2013] 1 WLR 124 at paragraphs [14] and [19]) and the Upper Tribunal must give appropriate weight to the DBS’s decision on proportionality (B v ISA at [21]), which arguably must be the DBS’s decision based on the facts as it found them. Given these features of the legal landscape, it may not be open to the Upper Tribunal to base the search for an error of law based on whether the decision was a disproportionate breach of the barred person’s human rights on what the Upper Tribunal has decided are the ‘correct’ facts. That may be said to usurp the DBS’s primary decision making function.

However, as we have said, we have had no argument on this potentially important point. We therefore proceed on an assumption and one that most favours the appellant, namely we evaluate whether the barring decision was disproportionate on the basis only of the facts which the DBS was not mistaken about. This assumption, however, does not assist SB.

Measuring the effects of the barring decision on SB’s Article 8 Convention rights against the importance of barring her from regulated activity, in our judgement the importance of barring outweighs the effects on SB. Putting this another way, we consider the barring decision strikes a fair balance between the rights of the individual, SB, and the interests of the community. The latter includes as a material consideration, per paragraphs [23]-[24] of B v ISA, the need for public confidence in the system for regulating those who work with vulnerable adults and children. We did not, however, hear any argument from either party on this ‘public confidence’ point and our decision does not turn on it.

In terms of the severity of the effects of the barring decision on SB, we recognise that it will prevent her for many years from working with children or vulnerable adults. We accept her evidence that it is these areas of work which are her chosen professions. However, it is important to recognise that the barring decision does not mean SB cannot work or make a living at all. It is not therefore, on SB’s facts, a decision carrying with it the most serious or gravest of effects in terms of SB’s core human rights. In Dalston Projects Ltd v Secretary of State for Transport [2024] EWCA Civ 172; [2024] 1 WLR 327, the weight to be attached the person’s human rights in the proportionality balancing exercise was put in this way:

“[21]….the context will include (1) the importance of the right (e g in A v Secretary of State for the Home Department [2005] 2 AC 68 (“the Belmarsh case”) the rights were personal liberty and the principle of equality, where there was a “suspect” ground, i e nationality); (2) the degree of interference; (3) the extent to which the subject matter is one in which the courts are more or less well placed to adjudicate, both on grounds of institutional expertise (e g they are the guardians of due process but are much less familiar with an area such as the conduct of foreign relations or national security) and democratic accountability (e g when it comes to social and economic policy, including the allocation of limited resources).

As against the interference the barring decision will have on SB’s Article 8 rights, we have to accord appropriate weight to the DBS’s statutory role as the primary decision-maker and its assessment of future risk based on the (correct) findings it made about SB having failed to secure the chair and having failed to leave VA on the floor and seek medical assistance after she fell.

The likely benefit of the barring decision is, putting it very broadly, that it will prevent SB from harming other vulnerable adults and children. That risk of SB harming other vulnerable adults and children, giving appropriate weight to the DBS’s view about the same, in our judgement is properly and particularly based on SB’s reaction to VA’s fall. What happened on 10 August 2022 may have been a one-off event but that is because, on her own evidence, it is something that SB had not encountered before. This is not an issue that was explored in any detail before us (see further what we say in paragraph 74 above). However, our judgement on the evidence which was before us is that, notwithstanding her 6 years of care work and her training, SB did not insist on reading VA’s care plan and then panicked/froze when VA fell. As a result, she did not follow that which she later accepted she knew should be done and wrongly moved VA from the floor despite knowing VA had hit her head on the floor. So acting could have had very serious consequences for VA, as moving her head and neck in an unsecure way could have exacerbated any head or brain injury. Given the risk to others evidenced by SB’s acting outwith the safeguarding rules she knew about and was expected to work under, the likely benefit to the community as a whole of barring SB from working with vulnerable adults and children did not, in our judgement, amount to a disproportionate interference with SB’s Article 8 human rights.

We should add that we have given consideration to the character references provided by SB in making the above proportionality assessment. Those references, however, do not address what occurred on 10 August 2022 and SB’s breach of Excelcare’s safeguarding rules on which we have found the DBS were entitled to rely. Moreover, insofar as the references attest to SB’s good work record for 6 years, we have already taken this into account in paragraph 87 above.

We also add that we did not find the decisions in AA v DBS [2023] UKUT 110 (AC) and JA v DBS [2023] 204 (AAC), which were relied on by SB, of any real assistance as to the correct approach to proportionality in SB’s appeal. Both AA and JA would seem to have turned on their own facts. In addition, the comments made in JA about proportionality were obiter (see paragraph [69] of JA) and were not, seemingly, grounded in relevant case law such as Bank Mellat (No.2). As for the AA decision, it appears that the Upper Tribunal found there were mistakes of fact in the DBS’s decision and those factual mistakes as to relevant conduct meant (see paragraph [65] of AA) that “including the Appellant [on either barred list] on the basis of this relevant conduct cannot reasonably be considered to be appropriate”. The subsequent discussion in AA about whether it was disproportionate to include AA on either barred list may also be viewed as being obiter. Insofar as it was not obiter, the decision would seem to turn on its own particular facts which involved ‘occasional’ failure to respect the cared for person’s wishes, facts which have little or no read across to SB’s failings in this appeal.

SB’s final ground of appeal concerns the part of the DBS’s decision that included her name on the children’s barred list. She argues that it was irrational, and thus in error of law, for the DBS to have based this part of its decision on it being reasonable to consider that SB could be presented with similar situations with children and thus (for the DBS) to consider her to also present a significant risk to children. It is said by SB that the DBS have not explained how such “similar situations” could arise with children, and therefore this part of the decision was irrational/and/or disproportionate.

We do not consider the DBS erred in law in including SB on the children’s barred list. The children’s barred list is not just about young children, as SB sought to argue. It includes children up to the age of 18. We do not consider it was irrational (or disproportionate) for the DBS to include SB’s name on the children’s barred list. Irrationality as an error of law ground is a very high bar. We consider that given the failures we have found the DBS was entitled to find in respect of SB’s care for VA on 10 August 2022, and the future risks which those failures evidenced, the DBS was entitled rationally to conclude amounted to conduct which was transferable to children if SB was in the future to work with children: see MG v DBS [2022] UKUT 89 (AAC) at paragraph [57-[58]. In this respect we bear in mind that “relevant conduct” includes, per paragraph 3(4)(1(b) of Schedule 3 to the SVGA, “conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him”.

It is, moreover, not the case that the issue of transferability is limited to cases involving serious sexual offending or conduct. Nor does transferability depend on the DBS showing (per OR v DBS [2023] UKUT 160 (AAC) a risk of harm arising from a “willingness to exploit vulnerabilities and to cross ethical boundaries”. That language was obviously appropriate in the OR case but it was not seeking to lay down a legal requirement for all cases.

The reasoning of the DBS for transferability of risk and placing SB on the children’s barred list is short. In the decision letter it reads:

“It's reasonable to consider that you could be presented with similar situations with children, you are therefore also considered to present a significant risk to children.”

In the circumstances, and insofar as SB challenged this reasoning as being inadequate on this appeal, that reasoning when read in context was adequate and was sufficiently based on the evidence.