[2025] UKUT 075 (AAC)

DBS’s final decision was issued on 16 January 2024. DBS’s principal finding was expressed as follows:

On the night shift of 27 September [2022], whilst in your role of Night Support Worker, you slept whilst on duty thereby placing service users at risk by failing to ensure that they were monitored and supported as required throughout the whole of the shift.

DBS stated that it was accordingly satisfied that the appellant had engaged in relevant conduct in relation to vulnerable adults as her conduct in sleeping on shift endangered or was likely to endanger the vulnerable adults in her care. DBS explained that it considered that if this conduct were repeated in relation to children it would also endanger or be likely to endanger them.

DBS went on to explain why it considered it to be appropriate to bar the appellant, and the key parts of the final decision letter so far as relevant to the present appeal are as follows:

We are satisfied a barring decision is appropriate. This is because we are satisfied that the information around this case shows that on 27 September 2022, whilst employed by CareTech Community Services as a Night Support Worker in a residential setting for severely disabled adults, you slept whilst on duty. We are satisfied that this behaviour endangered vulnerable adults in your care and as such that it constitutes relevant conduct for Adults.

It is acknowledged that your employer, Care Tech Community Services, requested a

withdrawal of this referral to DBS following the completion of the appeal process, however, whilst the appeal process acknowledges error around the relevance of two witness statements, it upholds the original findings. It also states that you placed residents at unnecessary risk, which could have resulted in serious harm, as such we are satisfied that this undermines Care Tech’s recommendation for the withdrawal of this referral on the grounds that you were not lone working and which was also contradicted by your own statements that you were working alone on the upper floor. We are satisfied that the withdrawal recommendation was based upon the issue of consistency in decisions made by the company in relation to similar cases, rather than on the specific risk presented in this case. As such it remains the duty of DBS to consider the future risk.

…

Whilst it is acknowledged that you had been working in this responsible role for a period of around 3.5 years prior to this incident, we are satisfied that you chose to sleep whilst on a waking night duty, in charge of a floor of 6 severely disabled residents whom needed hourly checks, regular pad changes and general supervision to prevent accidents such as falls and choking. We are satisfied that the risks from this behaviour were increased by you failing to inform your colleagues that you needed to take a break, despite a telephone being available for you to use, as such leaving the service users on your floor unmonitored.

Whilst you stated in your representations that no phone was available, you had previously stated that you could not access a phone due to a member of staff being asleep in the office, however, we are satisfied that the sleep-in staff was your manager, and that if you had felt too ill or too tired to fulfil your role you could have woken her, either to use the phone or to request her to provide cover, as this is one of the many purposes of a sleep-in being available. … It is acknowledged that you now inform via your representations that you were unknowingly in the early stages of pregnancy at the time of this behaviour, and that this rather than your studies made you tired. However, regardless of the cause of your tiredness, we are satisfied that you were aware that you were not, under any circumstances allowed to sleep during a waking nightshift, whether on a break or not, as the service users needed a member of staff to be alert to their needs at all times. We are also satisfied that you had failed to keep your manager up to date about your issues with and treatments for migraine, which you stated made you feel sleepy and as such may at times have had a detrimental impact upon your ability to meet the requirements of the role, including completing the more routine but necessary tasks. As such concerns remain that you made a series of decisions prior to and during this shift which demonstrated a pattern of irresponsibility.

Whilst it is acknowledged that you had been employed in this caring role for almost 3.5yrs when this incident occurred, we are satisfied that you failed to consider the emotional impact of this behaviour upon the severely disabled service users in your care, at being left without supervision and support for their multiple needs. We are also satisfied that this lack of thought for the residents was present in your choice to bring into work your own quilt to cover yourself, and that it demonstrates that you had pre-planned to sleep whilst on duty, or that at the very least you had chosen a course of action which made it more likely that you would fall asleep on duty. We are satisfied that you demonstrated little remorse for, or insight into the potential impact of your behaviour upon service users within your representations, as such concerns remain that you lack empathy with those in your care and that you are likely to repeat similar behaviour within other regulated activity roles.

We are satisfied that you planned to sleep on waking night duty, or at the least chose a course of action which made this behaviour more likely, and that you did not ensure other staff covered the needs of the residents on the floor you were responsible for, as such we are satisfied that both irresponsibility and lack of empathy are causal factors in your behaviour. Whilst there is no evidence that you wished any physical or emotional harm to come to the service users, we are satisfied that the risk of future harm is too serious to ignore as the service users were left with no one to attend to either their routine or emergency needs and were therefore placed at risk of events such as falls or being left in their own incontinence. We are also satisfied that you were fully aware that your role required you to be awake and alert to the needs of residents at all times of the shift.

If you were to continue to work with adults in the regulated activity sector, you would

always be required to follow the policies which are in place to safeguard service users from harm. Given your irresponsible disregard for such policies whilst in this role in order to meet your own needs, despite being aware of the potential consequences for the service users, we are satisfied that it is likely you would repeat such behaviour. Such behaviour could cause harm to or endanger a vulnerable adult and as such we are satisfied that it constitutes relevant conduct for Adults. Therefore, we are satisfied that it is appropriate to include you on the Adults’ Barred List.

Whilst this behaviour was not against or in relation to a child, in any roles within the

Children’s regulated activity sector, you would be likely to be tasked with similar supervision duties and would similarly be required to strictly adhere to policy in order to protect the children from harm. Given your failure to meet these responsibilities in this role, in order to meet your own needs, we are satisfied that it is likely you would repeat such behaviour within a role with children. Such behaviour could cause harm to or endanger a child and as such we are satisfied that it constitutes relevant conduct for Children.

Therefore, we are satisfied that it is appropriate to include you on the Children’s Barred List also.

In examining the proportionality of your inclusion on both the Adults’ and Children’s Barred lists, your rights under Article 8 of the Convention on Human Rights have been considered as follows:

It is acknowledged that inclusion will exclude you from working in all regulated activity roles and that this would exclude you not only from care sector roles but also prevent you from continuing your career progression into nursing. It is also acknowledged that this would reduce the scope of work available to you and could have a negative impact upon your income and consequently your standard of living.

It is also acknowledged that a bar would exclude you from voluntary roles within the

regulated activity sector and may also bring with it a sense of personal stigma. However, your rights must be considered alongside the rights of the children and vulnerable adults whom would be reliant upon you for their care, and we are satisfied that you represent an unacceptable risk of harm by continuing to engage in regulated activity roles with them.

It is acknowledged that you do not have any police cautions or criminal convictions and that you have not previously been referred to DBS. However, there is no guarantee that the circumstances of your dismissal from this role would be disclosed to any potential employers, and as such it is considered that there is insufficient information available for them to make an effective safeguarding decision upon when considering you for a regulated activity position.

As such we are satisfied that a barring decision is a necessary safeguarding measure.

Therefore, we are satisfied that it is both appropriate and proportionate to include you on both the Adults’ and Children’s Barred Lists.