[2024] UKUT 401 (AAC)

This ground concerns the proportionality of DBS’ decision to include the Appellant on the list of persons barred from working with vulnerable adults.

In our analysis, the risk that the DBS thought needed to be guarded against was not simply that, as it found, the Appellant had a sexual interest in ‘pre-pubescent girls’. The risk was described with more precision in the DBS’ Structured Judgement Process document as the Appellant being “willing to transgress legal boundaries to satisfy her own needs regardless of the harm that this causes to those in her care”.

The DBS’ finding that the Appellant was willing to transgress legal boundaries to satisfy her own needs was in the nature of a value judgement. It was a judgement that was open to the DBS in the light of its finding that the Appellant had sexually abused her daughter. We say that because the finding related to a child whose vulnerability to exploitation was obviously heightened by her parents’ separation, which left her living in a household overseen by her mother with limited practical opportunities to seek protection elsewhere, and whose stage of development / age meant that sexual abuse was bound to be particularly damaging to her emotional well-being.

We remind ourselves that, while the Upper Tribunal is to determine the proportionality of barring for itself, in assessing proportionality the Upper Tribunal must accord appropriate weight to the decision of the barring authority “as the body particularly equipped to make safeguarding decisions” (B v Independent Safeguarding Authority [2013] 1 WLR 308).

We are satisfied that the Appellant’s inclusion in the vulnerable adults’ barred list is a proportionate response to the risks posed by a person who is willing to transgress legal boundaries to satisfy their own needs. While this case has involved sexual needs, the circumstances of the Appellant’s sexual abuse of her daughter, involving a child particularly vulnerable to exploitation and taking place at a particularly damaging time in the child’s development, demonstrate that the Appellant poses a risk, that cannot be considered insignificant, of transgression of legal boundaries in relation to other vulnerable people in order to meet the Appellant’s own needs, whether they be sexual or otherwise. The Appellant’s inclusion in the vulnerable adults list in not, in our judgement, a disproportionate act. If barring the Appellant from working with vulnerable adults is proportionate, it cannot be irrational. Ground 2 therefore fails.