[2024] UKUT 427 (AAC)

We now stand back to consider the case in the round and whether DBS’s decision in this case was a proportionate and lawful interference with the appellant’s Article 8 rights or not.

We have considered first whether we should adjourn further deliberation at this point in order to give DBS an opportunity to express its views on the question of proportionality in the light of the facts as we have found them to be following this hearing. This could be done by issuing our decision to this point as a decision on a preliminary issue as permitted by rule 5(3)(e). This is an approach that the judge has adopted in another case, but in this case we as a panel do not consider it is necessary to delay resolution of this case further. Although we have received oral evidence from the appellant of which DBS did not have the benefit, in this case her oral evidence has not made much difference to the facts of the case as they appear from the papers. Most of what she said in oral evidence at the hearing she had already said in her submissions to DBS, it was just that in our judgment DBS had not taken proper account of it in the ways that we have identified above.

In those circumstances, we consider that we can lawfully to proceed to make our own determination on proportionality in accordance with the legal principles that we set out above. We begin by giving real weight to DBS’s view that this was a case in which barring was appropriate in the light, in particular, of the appellant’s complicity in locking residents’ doors. We recognise that DBS considered that conduct by itself in principle justified barring and we accept and agree with DBS’s view that this constituted ‘relevant conduct’ for the purposes of the statutory scheme, since even if there were justifications for it, locking rooms normally brings with it a potential for harm.

However, we do not give DBS’s view on proportionality as much weight as we would in most cases because we have found that in reaching that view DBS left out of account many relevant factors and reached perverse or wrong conclusions on the facts of this case in the ways that we have identified above.

We further find that the nature and extent of the risk that the appellant poses to vulnerable adults (or children) in future is very limited. She did not verbally abuse residents and her actions in locking doors were motivated by a desire to keep residents safe. It is concerning that she had not at the time understood that room doors should not be locked without consent save where specifically authorised and that authorisation would not be granted unless it was in the resident’s best interests to protect them from harm, was a proportionate response to the likelihood and seriousness of the harm and if there was no less restrictive alternative. However, the appellant was not well qualified, she was the junior on shift and she was working in a badly run home where inadequate training was provided. These are significant mitigating factors. Once she had been dismissed for locking rooms, it was apparent to her that this was a serious offence and something that should not be done. There is no past history of misconduct in the appellant’s case which might indicate that she is unwilling or unable to learn lessons. In our judgment she is willing and able to learn, and has done so.

We found that DBS’s conclusion that the appellant lacks empathy was perverse. The only proper conclusion on the facts of this case is that she is empathetic to those in her care.

We do share some of DBS’s concerns that the appellant did not take appropriate responsibility for her professional practice. Although she was the junior on shift, she also bears responsibility for decisions that are made and she should also have ‘blown the whistle’ on the situation in this home. However, we do not consider that this factor of itself means that the appellant poses a significant risk in future. We were satisfied that, as a result of her dismissal, she knows in future that she must take personal responsibility, even if she risks losing her job.

In the present case, we therefore find that barring the appellant is more than is necessary to accomplish the legislative objective of protecting vulnerable adults and children. As such, it is disproportionate and unlawful as it breaches the appellant’s rights under Article 8 of the ECHR.

Were it necessary to go further, we would also find that the barring decision in this case failed to strike a fair balance between the rights of the appellant and the public interest in protection of children and vulnerable adults. The effect on the appellant has been very significant: she has suffered emotional distress, she has been unable to work, and she has suffered financial hardship. The impact on the appellant is in our judgment disproportionate to the level of risk she poses to vulnerable adults and children.