Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 19 (AAC)

Fecha: 13-Dic-2023

Our decision on the substantive appeal

Our decision on the substantive appeal

27.

We organise our analysis of this appeal against the decision, as follows:

was there a mistake in any of DBS’s three “main” factual findings (about the May 2021, 2019, and November 2019 incidents)?

was there a mistake in any of DBS’s other factual findings, on which it based its decision?

was there a mistake on a point of law, in that “relevant conduct” had not been made out?

was there any other mistake on a point of law?

28.

As regards [27a] above, we are satisfied that none of the three “primary” factual findings was plainly “wrong”; all were supported by evidence; there was of course evidence pointing in the opposite direction – that the incidents did not take place – primarily, that of CW; plus, inferences that could be drawn (to the same effect) from the facts that

there was no further reporting back from the supply agency about the 2019 incident, as was requested in the email from the LADO to the supply agency of 12 April 2019; or that

that supply agency did not flag “safeguarding concerns” when it gave a reference from CW; or that

as regards the May 2021 incident, the police decided not to take further action; or that not all the children in the class described every aspect of the incident;

however, these points do not come close to persuading us that DBS’s findings were wrong or unsustainable or outside the generous ambit within which reasonable disagreement is possible (to pick up the terminology of the relevant case law as cited in JHB at [72]): to infer from any, or all, of the facts above, that the facts as found by DBS were “wrong” may be possible, but it certainly is not required.

29.

As regards [27b] above, similarly, we find no mistake in DBS’s other “primary” factual findings (as opposed to “secondary” or “inferential” factual findings), such as that that CW caused P to cry and that he created a fearful class. As for DBS’s “secondary” factual findings “by inference” from primary facts – chiefly, that CW caused emotional and physical harm – this is best considered together with [27c] above, as the key issue in establishing “relevant conduct” here is whether CW “harmed” a child. In our view, DBS’s inference, from the primary facts of the three main incidents, that, in each, one or more child was harmed, emotionally and/or physically, was not wrong or unsustainable or outside the generous ambit within which reasonable disagreement is possible, given that:

each incident involved, on the primary facts, confrontational physical interaction with a child (i.e. hitting, pushing, grabbing, scratching, or pushing the child) (in the case of the November 2019 incident, it was done “passively”, by not allowing the child to go to the toilet); and

the evidence indicates that P was very upset, and the same (about the children involved there) can reasonably be inferred from the facts of the two 2019 incidents.

In this analysis, we find it unnecessary to search out substitute words for, or “gloss”, the word “harm” (as used in the statute (paragraph 4 of Schedule 3 to the Act)); it is an ordinary English word and its meaning is self-evident. We do, however, note that the statute does not require any particular level, or degree, of harm; “harm” (itself) is all that is required.

30.

On this point, we, as a panel, may have some sympathy for drawing a different inference from the primary facts (namely, that one or more of these incidents was not serious enough to cause harm) – but, as before, that is some way from being able to say that the inference as drawn by DBS was plainly wrong. It follows that there was no error of law on DBS’s part in concluding that “relevant conduct” had been made out.

31.

As regards [27d] above, it does not seem to us that the decision was irrational or one which no reasonable decision-making body could arrive at, given that (as we have just concluded) there was no mistake in the factual findings on which the decision was based. As a panel, we may tend to view the incidents concerned as being towards the less serious end of the “safeguarding” spectrum; however, that is far from saying that it was irrational or otherwise wrong in law for DBS to take a conservative, risk-averse approach; and in any case, the “appropriateness” of including CW in a barred list is not a matter for us. The fact that other bodies (the Teaching Regulation Agency, or the police, or a supply agency) made other decisions (about prohibiting CW from teaching, or pursuing a police investigation, or ceasing to engage CW) at other points in time does not persuade us that there has been a mistake on a point of law by DBS, given that the decision was taken at a different time and/or for a different purpose.