[2024] UKUT 442 (AAC)

SS’s appeal is replete with disagreement and challenge to the DBS’s assessment of the risk she poses and the need for her to be included on the barred list at all. These are challenges which amount to an invitation to the Tribunal to ‘merely review the evidence that was before the DBS and come to different conclusions’. Such an invitation is expressly one that the Tribunal ought to decline (see RI).

It is not correct to characterise the DBS’s conclusion that there was a risk of the misconduct being repeated as a mistake of fact. By definition, such a conclusion is not looking to the past and seeking to determine, as a matter of fact, what has happened. Rather it is looking to the future and making a judgment or evaluation as to what is likely to occur. It follows that this point is an attempt by SS to challenge the evaluation of risk made by DBS as opposed to a finding of fact.

The core of SS’s appeal is to point to the apology, the length of her service, and other aspects of her conduct since the incident and to allege that these matters were not given due weight. But this submission is not correct. There are several elements to this.

First, as a matter-of-fact DBS considered each of these points. The decision twice referred to SS’s apology and recognised its relevance. The decision letter also expressly referred to the length of SS’s employment, her previous good character, and her ongoing work in the health sector. In other words, DBS was aware of SS’s representations on these matters and gave them due weight.

Second, DBS was entitled to reach a judgment that the apology showed limited insight into the lived experience of vulnerable adults and that it was insufficient to mitigate the risk of repetition. The fact that an apology has been made may be relevant to risk but cannot be viewed as a ‘trump card’ which expunges DBS evaluation of risk.

Third, DBS’ conclusion on the length of SS’s service was properly open to it. It concluded that this was equally capable of meaning that SS ought to have known how inappropriate her actions were. It follows that SS has not shown an error of fact or law in relation to the apology of SS’s length of service. In truth the height of her objection is as to the conclusions that DBS reached as to future risk, which are not properly before the Tribunal.

Fourth, DBS were aware of SS’s contention that she ‘ha[s] continued working in the health sector without concerns being raised] but noted that SS, ‘ha[d] provided no documentary evidence of this’. In the circumstances of this case this was sufficient to address SS’s submissions. There was clear evidence of relevant conduct, clear evidence of a lack of insight, and clear evidence that the risk subsisted. The fact that that risk had not come to fruition in a short period between SS being dismissed and a barring decision being made did not alter this conclusion.

Fifth, DBS was aware of SS’s reflections, apology, and lack of intent to harm residents. All of these matters of fact were acknowledged and considered in favour of SS. In that respect there was no error of fact in respect of any of them. Instead, SS seeks to encourage the Tribunal to consider the DBS’s evaluation of these factors and to urge a different evaluation onto the Tribunal. This is not open to SS in this appeal. Moreover, DBS’s conclusions were plainly properly open to it.

A consideration of the public interest is inherent in decisions of this type. The whole purpose of the DBS is to represent the public interest in ensuring the protection of the most vulnerable in society. More strikingly, SS cannot show a mistake of fact or law in the DBS’s analysis of risk. Having found a risk to vulnerable adults and children, the public interest militated in favour of a barring decision. This was self-evident.

Finally, the DBS did not make an assumption (still less a lazy one) about SS’s risk to children. Rather, DBS considered the nature of the misconduct that SS had committed and evaluated how that misconduct (if repeated) would affect children. DBS properly concluded that the nature of SS’s misconduct was such that it would pose a real risk to children. Its conclusions in this respect were lawful.

The DBS conclusion is that the appeal should be dismissed. However, if, contrary to DBS’s position, the UT concludes that there was a material error of fact or law and is minded to uphold the appeal:

In the event the UT is considering upholding the appeal and remitting to DBS with the Appellant’s name removed from the ABL/CBL in the interim, the UT is invited to provide its factual findings to the parties and invite submissions on the issue, so that submissions can be made on the basis of any relevant factual findings of the UT, before a conclusive decision be made by the UT on whether to remove the Appellant from the CBL/ABL.