[2025] UKUT 075 (AAC)

This is an appeal by the appellant under section 4 of the Safeguarding Vulnerable Groups Act 2006 (SVGA 2006) against the decision of the respondent Disclosure and Barring Service (DBS) of 16 January 2024. DBS decided to include her in the children’s and adults’ barred lists pursuant to (respectively) paragraphs 3 and 9 of Schedule 3 to the SVGA 2006 because DBS was satisfied that she had slept whilst on duty as a Night Support Worker on 27 September 2022, thereby placing service users at risk.

Judge Stout granted permission to appeal on the papers in this matter in a decision sent to the parties on 13 May 2024. The reasons for granting permission conveniently summarise the parties’ positions and grounds of appeal as follows:-

16.

In this case, DBS placed the appellant on both barred lists because it concluded that the appellant had slept whilst on duty as a Night Support Worker on 27 September [2022]. DBS took into account that the risk to service users had been increased by the appellant failing to inform colleagues that she needed to take a break despite a phone being available for her to use. DBS also took into account that she had taken a quilt to work with her, from which it inferred that she planned to sleep.

17.

In her grounds of appeal, the appellant denies sleeping on shift, denies endangering service users, denies that there was a phone available for use to notify other staff, denies planning to sleep and advances mitigating circumstances for fatigue including that she was (unknown to her at the time) pregnant. She also attaches a letter dated 23 December 2022 from Sean King (Operations Director) for her employer who heard her appeal and sought to withdraw the referral to DBS on the basis that there were other individuals working as Waking Night Support Workers in the building at the time of the incident so that she was not lone working and did not pose a risk of harm to vulnerable adults.

18.

I am satisfied that it is arguable that DBS erred in fact and/or in law in deciding to place the appellant on the children’s and adult’s barred lists. In particular, it is arguable that the factual basis for the decision may be wrong as the appellant alleges. It is also arguable that the decision was disproportionate and/or a breach of the appellant’s Article 8 rights. Given the mitigating factors that the appellant relies on, the fact that it was a single incident, and the limited risk posed to service users as a result, it is arguable that the decision to bar the appellant and thus prevent her from continuing to work in the sector in which she has qualifications, training and experience was disproportionate.