[2024] UKUT 126 (AAC)

… On the other hand, the incident appears to have been a fast moving one with the possibility of accounts and recollections becoming confused. I cannot find, in the material before me, a first-hand account of events from AD. Whilst it is said of the child that he has no reason to lie, he was aged only 12 at the time, he does have health issues which may impact upon the accuracy of his evidence, and the accounts of what he said to the appellant might point to a strong dislike of her. There has been no prosecution. The evidence does not necessarily seem to tie the injuries to the incident. The appellant’s account of events has not been tested and found wanting at an event such as a full disciplinary hearing.

The threshold for the giving of permission is not an overly demanding one (see above). Bearing that in mind, I consider the DBS may have made a mistake of fact in its finding that the appellant assaulted the child and in its related finding that she threatened to do so again by indicating if he were to hit her, she would hit him back. I also give permission (though this was not expressly sought) on the basis that, even absent a mistake as to fact, the outcome may have been disproportionate bearing in mind there was only a single incident of concern, there may have been a lack of appropriate training provided to the appellant so as to equip her with the skills to deal with aggression displayed towards her, she may have been provoked (there seems to be little doubt she was subjected to appalling verbal abuse at some point during the incident) and her employment opportunities will be limited by her inclusion in the CBL.”.