[2024] UKUT 443 (AAC)

Paragraphs 9 and 10 of Schedule 3 to the 2006 Act deal with behaviour or “relevant conduct” in relation to adults, and are in issue in the present case. So far as is relevant, they provide as follows:

An individual’s appeal rights against a DBS barring decision are governed by section 4 of the 2006 Act:

We highlight sub-section (3), namely that “the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact” and so, in effect, is non-appealable.

In respect of mistake of fact pursuant to SVGA 2006 S.4 (2) (b) the law in this area is comprehensively set out in a series of Court of Appeal cases: AB v DBS (2021) EWCA Civ. 1575; Kihembo v DBS (2023) EWCA Civ. 1574; DBS v JHB (2023) EWCA Civ. 982; and DBS v RI [2024] EWCA Civ. 95. In summary:

An assessment of risk however is generally speaking for the DBS and what is and is not a fact should be considered with care. In DBS v AB (2021) EWCA Civ. 1575 Lewis LJ at para 55 stated:

“the Upper Tribunal may set out findings of fact. It will need to distinguish carefully a finding of fact from value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness. The Upper Tribunal may do the former but not the latter. By way of example only, the fact that a person is married and the marriage subsists may be a finding of fact. A reference to a marriage being a "strong" marriage or a "mutually-supportive one" may be more of a value judgment rather than a finding of fact. A reference to a marriage being likely to reduce the risk of a person engaging in inappropriate conduct is an evaluation of the risk. The third "finding" would certainly not involve a finding of fact.”

The appropriateness of a barring decision is not a matter for the Upper Tribunal on appeal. Unless the DBS has made either an error of law or of material fact, the Upper Tribunal may not interfere with the decision [see R v (Royal College of Nursing and Others) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin)]. Further, if it is argued that a decision to include a person on a barred list is disproportionate to the relevant conduct or risk of harm relied on by the DBS, the Upper Tribunal must afford appropriate weight to the judgement of the DBS as a body enabled by statute to decide appropriateness [see SA v SB & Royal College of Nursing [2012] EWCA Civ 977]; Disclosure and Barring Service v JHB [2023] EWCA Civ 982; Kihembo v Disclosure and Barring Service [2023] EWCA Civ 1547; and Disclosure and Barring Service v RI [2024] EWCA Civ 96 [2024] 1 WLR 4033

In considering the 2023 and 2024 cases in more detail, we note that in JHB (at paragraph 90) the Court confirmed that absent a finding of a mistake, the Tribunal is “not free to make its own assessment of the written evidence”. The latest of the Court of Appeal’s decisions is DBS v RI. In that case the Court approved the observations (in the earlier case of PF v DBS [2020] UKUT 256 (AAC)) that:

“There is no limit to the form that a mistake of fact may take. It may consist of an incorrect finding, an incomplete finding, or an omission. It may relate to anything that may properly be the subject of a finding of fact. This includes matters such as who did what, when, where and how. It includes inactions as well as actions. It also includes states of mind like intentions, motives and beliefs.

The mistake may be in a primary fact or in an inference. There was a discussion at the hearing about primary and secondary facts and about inferences. It became clear that these terms were used in different senses, so we need to make clear what we mean. A primary fact is one found from direct evidence. An inference is a fact found by a process of rational reasoning from the primary facts as a fact likely to accompany these facts. One way, but not the only way, to show a mistake is to call further evidence to show that a different finding should have been made. The mistake does not have to have been one on the evidence before the DBS. It is sufficient if the mistake only appears in the light of further evidence or consideration.”

In PF the Tribunal also confirmed that the onus is on the Appellant to show that a mistake occurred (at paragraph 51(g)). This aspect of the Tribunal’s reasoning was approved by the Court of Appeal in Kihembo at paragraph 26.

The Court in RI then proceeded to hold that an accurate description of the mistake of fact jurisdiction is:

“The Upper Tribunal is entitled to make a finding that an appellant's denial of wrongdoing is credible, such that it is a mistake of fact to find that she did the impugned act. In so doing, the Upper Tribunal is entitled to hear oral evidence from an appellant and to assess it against the documentary evidence on which the DBS

based its decision. That is different from merely reviewing the evidence that was before the DBS and coming to different conclusions (which is not open to the Upper Tribunal)”.

A feature of this is that any mistake of fact must be material to the ultimate decision meaning that it may have changed the outcome of the decision (ME v Disclosure and Barring Service [2022] UKUT 63 (AAC); R (Royal College of Nursing and others) v SSHD [2010] EWHC 2761 (Admin) at paragraph102).

The Respondent’s primary findings of fact, as contained in its Final Decision Letter of 8 August 2022, are as follows:

As indicated above, we heard from the Appellant who was questioned by both the DBS representative and us. She confirmed, when questioned, the details she had set out in her statement to the DBS and Skeleton Argument.

There is only one reported incident as opposed to numerous incidents, this is the first error of fact. The only incident is that of 12 August 2021. There are no other known or reported incidents whatsoever. This incident itself suffers from a severe lack of evidence, there is no CCTV and there are no independent witnesses. The only source of information is an unverified source namely JT. There are no witness statements from any individual against the appellant and there are no verified and corroborated interview notes from any individual against the appellant.

The appellant has shown clear awareness that there was a procedure to be used, that she should have used it but could not do so on this occasion because the equipment was new and thus, she was not trained to use it. The appellant has also shown clear remorse about her conduct and recognised that she must not repeat her conduct again.

This was a one-off isolated incident in the appellant's lengthy career and should have been treated as such. The appellant's actions were not malicious and the appellant's act did not bring or cause any harm to any individual.

The appellant's experience, qualifications and training show that the appellant is a responsible professional who kept herself up to date of the requirements of her role.

The appellant is of previous good character and has no previous convictions, civil action, disciplining actions or complaints against her whatsoever.

In the circumstances, it was not open to the Respondent to arrive at the conclusions they made especially in the light of the weaknesses in the existing evidence and the lack of substantive corroborating evidence.

It is inconceivable, how in the light of the above, a right-minded individual could arrive at a decision on the balance of probabilities, that the Appellant’s conduct warranted the decision of 8 August 2022 to be made.

The Respondent did not make a material mistake of fact in a PF v DBS [2020] UKUT 256 paragraph 51(b) sense.

Having regard to the material that was before the Respondent, its material factual findings were ones that were reasonably open to it on the balance of probabilities. The Respondent acknowledges the ratio in DBS v RI [2024] EWCA Civ 95 and, in particular, paragraphs 28-37.

Without prejudice to the generality of the foregoing, taking the individual alleged mistakes of fact referred to by UT Judge Jacobs at the permission hearing in turn: a. JE denies lifting PF alone, saying she did so jointly with JT. See, in particular, JT’s evidence.

In her investigation interview, JE said that “JT and I picked her up”. The Respondent assessed the credibility of JT’s evidence and considered it to be reliable.

JE denies using a headlock: The Respondent did not find that JE used a headlock. In the Barring Decision Summary document, the Respondent stated: She denied the use of a “headlock” and whilst we take JT’s account to be credible we must consider the use of terminology in that there was no suggestion from JT that she had PF in a head lock. It was more about stance and approach to the lift which was followed by her reaction to PF falling during the transfer. Both provided consistent descriptions that tally with the description of lifting a service user. We have already established that it was an underarm lift which fits this description. The use of the term headlock appears to be a misrepresented interpretation on JT’s part. As a result, this subjective terminology is not evidenced. This misuse of the term appears to have also been considered by the employer who made no established finding in relation to this.

JE denies having handled service users in the same way previously. In her fact find interview JE materially stated:

In her disciplinary hearing, JE denied having done so previously. Having regard to JE’s aforesaid inconsistency and the fact that JE had offered a reason not to use the hoist (it was easier not to), the Respondent’s conclusion was reasonably open to it.

As to the other factors referred to by UT Judge Jacobs when he granted permission:

Even if JE’s case as to this issue is considered to be credible (which the Respondent rejects,) as an experienced healthcare assistant JE should have known to take advice / seek assistance if she was unsure what to do rather than to flagrantly breach the care plan. There is not even a suggestion that JE raised the issue after the fact.

Absence of previous complaints. The Respondent did not find that there had been previous complaints. It did note, however, that the disciplinary process had thrown up some other examples of what appeared to be poor practice.

JE’s training record: It is unclear what point was made on JE’s behalf at the permission hearing in this regard. The training record confirms that JE had had up to date manual handling training. JE confirmed in her interview that she had completed her moving and handling training twice. Insofar as JE may be asserting that she ought to have received training directly relating to PF’s new chair (as JE’s witness statement in support of her appeal perhaps suggests) or that JE may be seeking to imply that she had not been trained as to how to use the hoist:

Absence of any investigation into the allegation of rough handling: JT referred to JE’s approach as “often very rough”. In the Barring Decision Summary document, the Respondent stated: “In establishing the above findings we can equally determine the admitted actions, as described by JT, amount to physical handling that is “rough”. The act of lifting someone by their arm, when they are unable to weight bear, then moving them by their underwear, amounts to unnecessary physical handling that is excessive.”

Having assessed the use of terminology in JT’s statement, it is reasonable to conclude that when coupled with the admissions from [JE], the admitted actions were representative of a “rough”, “abrupt” and “brusque” approach on 12 August 2021 and more generally in her interactions with service users.

Insofar as, contrary to the Respondent’s case, the Upper Tribunal may find that the Respondent made a mistake of fact: fundamentally, JE admits that, contrary to an unambiguous care plan (which she had read and understood), JE made the decision to lift a vulnerable service user without a hoist, thereby placing her at considerable risk. None of the impugned matters in this appeal speak to that central issue.

The Respondent made no mistake of fact within the meaning of s.4(2) SVGA 2006 so that the Respondent’s decision must be confirmed pursuant to s.4(5) SVGA and the appeal dismissed. If the UT finds, contrary to the above, that the Respondent did make any material mistake of fact, the UT is invited (subject to the nature and scope of the mistake) to:

In considering the evidence we have found nothing to suggest that the person lifted without the hoist came to any harm. We also note that it was only JT who saw JE do this but they did not complain. We appreciate that she did not follow the care plan and did not lift the patient using the hoist.

JT's evidence about JE requiring the patient to stand and change the pad at the same time is not accepted by us as we think it is impossible to do both. We feel that there is missing evidence about what happened here. We question JT’s reliability and thus find him not to be particularly credible. We wonder if he had a motive in doing what he said. We note that there seems to have been no verification of JT’s evidence by the DBS, rather a simple assertion by them that they found him “credible”.

We note that JE has done nothing like this before. We also note that she said to us when she gave evidence that she lifted the patient under the arm and did not act in the way that JT suggested.

The suggestion that JE was brusque with patients is only one person's view (that of JT) and we can find no evidence that this suggestion was ever put to her. This suggests to us that DBS were relying on an assertion, not a fact.

We also note the suggestion made by JT that JE lifted the person up by her knickers is not supported by evidence and we do not find it credible. She did admit to not using the hoist but that does not mean that she was in any way compromising the safety and well-being of the patient in the steps she took. Our concerns about the credibility of JT’s assertion on this point leads us to question the credibility of all his evidence.

The appropriate course of action may have been disciplining or dismissing JE but that was an internal matter for the care home to consider and not for us to comment upon.

We are not satisfied that the DBS had sufficient reliable evidence upon which to base their decision and given what we concluded in regards to JT’s evidence about JE’s handling of PF, the DBS have, therefore, clearly made a mistake of fact in reaching the decision that they did. In addition, the assertions (as we find them to be) about JE being “rough”, “abrupt” and “brusque” are not based on reliable (or even any) evidence and are likewise mistakes of fact.

Bearing in mind the legal framework and, in particular, paragraphs 17 to 20 above, in light of our findings, we considered whether to remit the matter to the DBS for further consideration. Given the length of time since the incident (three years) and the nature of the one-off incident and that our findings of mistakes of fact go to the nature of the decision and may have resulted in a different decision, we have come to the conclusion that JE should be removed from both lists.

The DBS is directed to remove JE’s name from both the Adults’ and Children’s Barred Lists.