[2025] UKUT 036 (AAC)

The first ground on which the appeal succeeds concerns the third core finding of the DBS. That finding, when read compendiously, is that SB had “failed to follow safeguarding procedures on 10 August 2022 in that she had failed to accurately record and report the incident”. This ground covers the mistake of fact grounds described in paragraphs 9-10 above, and at least part of the error of law ground in paragraph 11 above.

The critical starting point is that the evidence before the DBS and before us does not set out either the “safeguarding procedures” of Excelcare which SB was expected to follow or the “incident reporting procedure” of the same company that SB was required to meet.

The lack of evidence of the written policies and procedures of Excelcare and the error of law ground (that the DBS had failed to identify and consider the safeguarding policies and procedures SB had failed to meet) do not on their own give rise to any material error of law. This is because the DBS’s failure to consider those written policies does not alone and of itself necessarily result in a consequence in the decision on SB’s case, as that (mere) failure does not necessarily establish conduct by SB which, for example, endangered, or was likely to endanger, a vulnerable adult (or child).

We are satisfied, however, that in relation to the other two core findings of fact made by the DBS that the content of Excelcare’s safeguarding procedures can be inferred from the evidence, even though Excelcare’s written procedures were not before us. That inference arises, first, from SB not disputing that VA’s care plan (as part of Excelcare’s safeguarding procedures) required the commode/shower chair to be secured and tilted when VA was sitting in it. And its arises, secondly, from SB’s clear acceptance in her interview of 10 August 2022 with her manager at Excelcare, a matter which was not disputed before us, that she was aware from her moving and handling training (training which we consider part of Excelcare’s “safeguarding procedures”) that she should never support someone up from a fall to the floor, particularly where the person has banged their head, and instead should have called for medical assistance.

However, we are not satisfied that any similar inferences as to the content of Excelcare’s safeguarding procedures or its incident reporting procedure can be made in relation to the third core finding made by the DBS. We have seen no detail as to the terms of Excelcare’s “incident reporting procedure”, and nor did the DBS have that information when it made the barring decision. We therefore do not consider it was open to the DBS, insofar as it did so (see the passages from the Barring Decision Summary and the decision letter cited in paragraph 41 above) to find that SB had failed to follow Excelcare’s incident reporting procedure, or any other “safeguarding procedures”, in not reporting the fall to VA’s daughter or to the third care worker who attended at VA’s home after the incident on 10 August 2022. There was simply no evidence before us showing that SB had been placed under an obligation to report the fall to VA’s daughter or the third care worker, and as such we consider the DBS’s made a mistake of fact in finding that SB had failed to report the fall to either VA’s daughter or the third care worker.

We would accept, indeed infer, from the evidence before us that Excelcare had in place on 10 August 2022, in general terms, an incident reporting procedure. Indeed, SB herself accepted that Excelcare had such a procedure, and having such a procedure would plainly be an important part of a care provider’s safeguarding procedure. However, without the actual terms of that reporting procedure this acceptance can only be at the level of generality, and looking at what SB told her manager at 1.30pm on 10 August 2022, we consider the DBS made a mistake as to a material fact when it held that SB had “failed to accurately record and report the incident”. What SB told her manager on 10 August 2022 was in our judgement an accurate report of the incident. She told the manager on 10 August 2022 that VA had fallen forward out of the chair and hit her head, that SB and HA had moved VA from the floor to the chair and then the bed, and that HA had (wrongly) told the daughter that VA had hit her head on the hoist. That, in our judgement, was an accurate report of the incident.

Further, in the absence of the terms of the incident reporting procedure, or the terms of Excelcare’s safeguarding procedure’s more generally, we do not consider the DBS had a proper factual basis for its finding (insofar as it is a separate finding of fact) that SB had failed to accurately record the incident. The decision letter (see again the passage cited from it in paragraph 41 above) only relies on SB’s failure to report the incident, which we have dealt with above and deal with further below. The Barring Decision Summary passage cited at paragraph 41 above does rely on SB having “failed to record the fall via the incident reporting procedure”. However, we consider this finding of fact was not properly open to the DBS on the evidence, and it was therefore mistaken. We have so concluded because in the absence of evidence as to the exact terms of the incident reporting procedure, we consider there was (and is) no secure basis for finding that SB, instead of or in addition to HA, was obliged by the incident reporting procedure to record the fall. SB told us, which we have no reason to disbelieve on the evidence before us, that it was for HA as the more experienced care worker to report the incident, including the fall, and HA had done this when HA went to Excelcare’s office on 10 August 2022. Insofar as HA when so acting was acting on behalf of SB, there was no evidence before us, or the DBS when it made its decision, that HA did not record the fall via the incident reporting procedure.

Part of the DBS’s argument before us was about whether SB had agreed with HA to lie about VA having hit her head on the hoist and thus had ‘gone along with the lie’. Mr Ryan clarified later that the DBS was not, and had not, relied on SB herself having lied about VA having hit her head on the hoist. That clarification was welcome. There is nothing in the evidence before us to support any finding that SB had said VA had hit her head on the hoist. Moreover it should be noted that Excelcare in its letter of 17 August 2022 acknowledging SB’s resignation stated “[w]e appreciate your honesty in this matter”. However, we should add that we did not see the relevance of whether SB and HA had (or had not) agreed to lie to the daughter about the fall. We say this because it was no part of the DBS’s finding that SB had failed to accurately report and record the incident that she had agreed with HA to lie about the fall. Nor was any part of that finding based on what SB had reported (or may not have fully reported) to her manager on 10 August 2022. The DBS’s finding about SB’s failure to report was limited to SB not reporting the fall to the daughter (and the third care worker), and thereby not correcting HA’s lie to the daughter.

SB is also entitled to succeed on this appeal because we accept her argument that the DBS erred in law when making its decision by failing to take into account all the relevant evidence about whether SB had shown insight and remorse for what had occurred on 10 August 2022.

We set out the core relevant parts of the DBS’s decision on which relied SB relied under this ground of appeal, which read:

“The DBS are concerned that your additional representations indicate that you have not accepted responsibility for your actions and have attempted to place all blame onto [HA]. This demonstrates a lack of insight/understanding into the need for you to speak up against poor practices which may place vulnerable adults at risk.”

SB also sought to rely on the passage in the decision letter which reads:

“It is concerning that you have demonstrated an attitude that your behaviour was ok because you were following your colleagues lead, despite knowing this was incorrect.”

And:

“It's also concerning that you have failed to recognise the harmfulness of your behaviour and have focused only on the impact it has had on yourself and your future aspirations.”

SB points out that in its earlier decision of 29 March 2023 (a decision which the DBS then reviewed and replaced with the decision under appeal) the DBS acknowledged SB had:

“accepted responsibility for your behaviour and apologised for it.”

The additional representations were made by SB’s then solicitors and are dated 5 May 2023. It is apparent from their content that they were intended to be additional representations and not replacement representations. The representations request at their outset that the DBS take them into account “in conjunction with our previous representation[s]”. The additional representations were not therefore intended to amount to the sum total of SB’s representations.

We assume, which a fair reading of the 5 May 2023 letter might suggest is the case, that the DBS’s above characterisation of the content of the additional representations is correct. We also accept that the DBS correctly identified those representations as being additional representations. And we further accept that the DBS was entitled to be concerned that those additional representations on their face may have sought to place all the blame onto HA and did not show SB accepting responsibility for what had occurred.

All of that said, however, what the DBS’s decision making fails to show is any attempt to weigh those representations against that which SB had previously represented or said about the incident, which had led the DBS to find or conclude as it had in its 29 March 2023 decision. By way of example, the previous representations from the same solicitors of 25 April 2023 (which the DBS were also asked to take into account in the 5 May 2023 representations), state, inter alia, that the unfortunate incident had taught SB to learn from the experience and to make sure protocols were followed without question. That statement did not appear in the 5 May 2023 representations. Moreover, in our judgement the 25 April 2023 representations cannot fairly be characterised as placing all the blame on HA.

Furthermore, in a letter of 2 March 2023 SB told the DBS how she had identified her mistakes which should not have happened, that she now had insight into what she had done which was wrong, and she accepted full responsibility for her actions.

Moreover, on the same day the incident had occurred, SB told her manager, in answer to a question about whether SB was “comfortable with the decisions that [she] made and the steps [she] took after the fall”, SB answered:

“No, I am very angry and upset and what is done is done, I can only be totally honest with you, we should have called an ambulance at the time so she could get the proper treatment straight way.”

And then in answer to a further question as to whether SB would have told anyone about the fall if VA’s face had not swollen, SB answered:

“Definitely, I would have called the office straight after, she is an elderly frail lady, she might have bruised, we had to keep an eye on her I would not have kept this secret. That was not my intention.”

At the further interview the next day, in the context of SB’s manager exploring with her why she had not corrected HA’s lie to VA’s daughter, SB said:

“I understand, we have learnt totally different in training, I know it was wrong, I have no words to say other than sorry, I am not thinking about myself at themoment, I only hope VA is going to be okay. I didn’t sleep last night, thinking, why did we do that…..

….I should have done the right thing, we should have called the ambulance and daughter immediately, I shouldn’t have list[en]ed to HA, I let myself down”

The statements made by SB immediately in the aftermath of VA’s fall on 10 August 2022 are plainly relevant to whether she had accepted responsibility for her actions (as is her letter of 2 March 2023) and whether she was showing remorse. The statements SB made on 10 and 11 August 2022 are also relevant to whether SB overall thought her “behaviour was ok” and whether she had failed to recognise the harmfulness of her behaviour and had focused only on the impact on herself and her future aspirations. In our judgment, the above highlighted statements SB made in her interviews on 10 and 11 August 2022 do not support the findings or the conclusions of the DBS we have set out in paragraphs 54 and 55 above. Indeed, given the highlighted statements from SB’s interviews, we can see why the DBS seemingly accepted in its earlier 29 March 2023 decision that SB had accepted responsibility for her behaviour and apologised for it.

For error of law purposes, however, the point is that the DBS had to weigh all of the evidence going to whether SB had accepted responsibility for her actions and had shown remorse, and it failed to do that in its decision. Putting this perhaps another way, the DBS failed to consider the totality of all the relevant evidence concerning whether SB accepted responsibility for her actions on 10 August 2022 and thereby erred in law.

We reject the DBS’s submission that its consideration of SB’s representations and evidence as to her responsibility and remorse was sufficient. It may be, as the DBS argued, that its earlier decision of 29 March 2023 had a more nuanced basis: because, having made the acknowledgement set out in paragraph 56 above, it continued “however your insight appears limited to the impact your behaviour has had on yourself and your career rather than the harmfulness of it”. Those concluding words may themselves have failed to take account of SB’s evidence in her 10 and 11 August 2022 interviews. However, the DBS’s acknowledgement quoted in paragraph 56 above is no more than demonstrative of the evidence from SB which supports her having accepted responsibility for her behaviour, and apologised for it, and it is that evidence of SB which the decision has not sufficiently taken into account. Nor are we persuaded by the DBS’s arguments about the quality or depth of the responsibility shown by SB. That judgement had to be made having considered all the relevant evidence, which was not done in SB’s case.

Nor are we persuaded by the DBS’s argument, if we understood it correctly, that its decision was about the risk of future harm being caused by SB and, as part of that, the DBS was not satisfied that SB would in future challenge a colleague’s wrong behaviour. We recognise that the assessment of risk is for the DBS. However, in making that assessment it had to take into account all relevant evidence. How SB viewed her role in what had occurred with VA on 10 August 2022 (including whether SB considered she had acted correctly in following and not correcting HA) in our judgment was plainly relevant to that assessment, and that required the DBS to consider all the relevant evidence going to those issues.

This point can be put another way. It is clear from the DBS’s decision letter that it took into account the additional representations as relevant evidence about SB’s insight and understanding about the need for her to “speak up against poor practice” and the need for her to report wrongful behaviour carried out by a worker who was more senior then her. The DBS therefore plainly considered that evidence about SB’s acceptance of her responsibility for her actions was relevant evidence (which it was). However, having taken that step in its decision making, the DBS was required to consider (and show through its reasons it had considered) all such relevant evidence, and that it failed to do.

We consider this is sufficient to dispose of this ground of appeal. SB argued in addition, or in the alternative, that the DBS made a mistaken factual finding that she had “not shown insight and remorse” for her actions on 10 August 2022. An initial concern we have here, which was not addressed in argument before us, is can it be said to be a finding of fact whether someone has “shown insight and remorse”. It is at least arguable that this ‘finding’ is instead an evaluative conclusion based on all relevant evidence. The latter is off limits for the Upper Tribunal: see SB at paragraph [55]. Although the discussion in paragraph [55] of SB is about the Upper Tribunal exercising the fact finding function located in section 4(7)(a) of the SVGA, it is also relevant in our judgement to deciding whether the DBS made a finding of fact about which it may have been mistaken. The second concern we have is, ignoring the first concern, whether the DBS actually made a finding of fact in its decision that SB had not “shown insight and remorse”. None of the passages in the DBS’s decision on which SB relies (see paragraphs 54 and 55 above) make such a finding. The passage from the decision letter in paragraph 54 above does refer to SB having a lack of insight, but (i) that is in a more limited context of a need for SB to speak up, rather than her insight more generally, and (b) in any event, is tied to the DBS (legally wrong) view that the sole relevant evidence was that found in the additional representations. It is therefore not a finding of fact (if it can be a finding of fact) that SB had not more generally “shown insight and remorse”. Given these concerns, we do not consider we can or should find on the evidence before us (including SB’s oral testimony which we have set out above) that the DBS made a mistaken finding of fact that SB had not shown ‘insight and remorse’.

We should add, however, that the evidence SB gave to us, which we have summarised above, will form part of the evidence the DBS will need to take into account when it makes its new decision on SB’s case under section 4(6)(a) of the SVGA.

The third, and final, ground of appeal on which the appeal succeeds is the DBS’s failure to take into account the character references provided by SB to the DBS. This was part, but a distinct part, of her proportionality ground of appeal. It was not addressed by the DBS in its written submissions. Mr Ryan’s argument before us was that the DBS consideration of the character reference was sufficient. We do not agree. There is no consideration of the character references in the decision letter of 12 May 2023. We accept that the decision letter has to be read alongside the record of DBS’s decision making process set out in the Barring Decision Summary document (the BDS”). Unlike the decision letter, the character references are noted and summarised in the BDS as it appears at pages 223 and 224 of the Upper Tribunal bundle. However, other than the BDS listing this evidence, at no stage does the BDS grapple clearly (if at all) with this evidence.

The character evidence may to some extent be said to be quite general in nature. But where, by way of example, a care coordinator from Excelcare says, on 13 July 2022, that SB (on the face of it in her role as a care worker with Excelcare) was “amazing” and it had been a pleasure having SB in the care coordinator’s team, that evidence needed to be addressed as it was evidence of SB’s competence as a care worker as testified to by a more senior member of staff. That evidence obviously came before the incident on 10 August 2022 and so could not have taken that incident into account. However, we do not consider it was sufficient for the DBS to address that (and the other character references, which refer to SB’s honesty, trustworthiness and reliability), if that is what the DBS was doing, by saying in the decision letter (and the BDS):

“It's acknowledged that you had worked in a care provision role for 6 years and that there had been no concerns about your behaviour during this time. However, given your most recent conduct the DBS are concerned that you don't have the right problem solving skills to deal with stressful situations which often occur within regulated activity. The DBS are satisfied that you failed to recognise the seriousness of the incident and the service user's potential injures despite your experience in care. The DBS are therefore satisfied that vulnerable adults placed in your care are in danger of being subjected to physical and emotional harm through your neglectful behaviour.”

We do not consider this is a sufficient explanation encompassing the character references because: (i) it is not clear it is addressing those references, and (ii) it fails to show that the DBS had weighed in its consideration that if, for example, SB had been an ‘amazing’ member of a care team and would seemingly (on the DBS’s assessment) often have had to deal with stressful situations, SB may have developed the right problem solving skills over those 6 years and her reaction to VA’s fall may therefore have been a one-off mistake which was not likely to be repeated.

We recognise that in SB’s oral evidence to us she told us that she had had no similar issues with those she had cared for in her 6 years of caring before VA’s fall on 10 August 2022. That evidence may well be relevant to whether SB had in fact developed the necessary problem solving skills over those 6 years to address that which confronted her when VA fell on 10 August 2022, and therefore whether her reactions to the fall were an out of character one-off or evidenced a propensity by SB not to be able to deal properly with care situations such as the one that she was confronted with on 10 August 2022. However, this is not evidence on which the DBS relied in its decision nor is it part of the DBS’s reasons for that decision.

The above grounds are the grounds of appeal on which SB succeeds. Section 4(6) of the SVGA requires us to either remove SB from the barred lists or remit the matter to the DBS for a new decision. Removing SB from the both barred lists is only available if, per AB, we consider that was the only decision available to the DBS on the law and the correct facts. Given we are not allowing the appeal on any other grounds, and therefore the two other core findings remain intact that SB failed to secure VA’s commode/shower chair (thus allowing VA to fall) and ‘wrongly’ moved VA from the floor after she had fallen, we do not consider removal from the lists is or was the only available decision open to the DBS.