[2025] UKUT 008 (AAC)

Mr Atanda sought to persuade us that OS’s ECHR Article 6 rights had been breached by the DBS’s reliance on Kim’s hearsay evidence. This submission is misconceived. It is a well-established principle that in general terms the DBS system is compliant with human rights legislation. Indeed, Wyn Williams J has held that “the absence of a right to an oral hearing before the [DBS] and the absence of a full merits based appeal to the Upper Tribunal does not infringe Article 6 EHCR” (R (on the application of) Royal College of Nursing and Others v Secretary of State for the Home Department [2010] EWHC 2761 at [103]). More particularly, we were not persuaded that there was any unfairness to OS in the two respects alleged.

So far as Kim not giving direct evidence – either to the DBS or before ourselves – was concerned, the answer is that her evidence has to be assessed in the round. Just because it is hearsay evidence does not mean it has to be excluded. Rather, her evidence has to be assessed for what it is worth and in the context of other evidence to determine its reliability, bearing in mind that the Appellant has not had the opportunity of having it tested by cross-examination and by questions from the panel. Even allowing for that, we found Kim’s evidence to be credible and reliable, not least as it was consistent in several respects with the evidence from Linda.

So far as the shift in the terminology of allegation 1 was concerned (from lifting to assisting in lifting), this argument is simply hopeless. The change in terminology simply reflected, no more and no less, the DBS’s further consideration of the evidence, including OS’s own representations. In any event it is not in dispute that OS and Kim lifted Edward up together – both Kim and OS said as much. The allegation did not expressly state or even suggest that OS had been the instigator of this manoeuvre. There is accordingly no conceivable unfairness in the DBS’s decision to redraft the terms of allegation 1.

At the hearing Mr Atanda submitted in addition that there had been further unfairness in that Mr Serr had framed the Respondent’s case in terms of the overriding importance of honesty, whereas allegations of dishonesty had played no part, Mr Atanda argued, in the original DBS allegations on which the barring decision had been made. This submission lacks any merit. For example, it completely overlooks Mr Serr’s detailed response to the appeal on behalf of the DBS, dated 16 April 2024, which made it perfectly clear that “the issue however is that OS was repeatedly dishonest about the incident to both the NOK and the employer” (at para 46, original emphasis). OS accordingly has had ample time to prepare his case and has not been taken by surprise.

It follows that we conclude that the error of law grounds of appeal are not made out.