Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 250 (AAC)

Fecha: 22-May-2024

The grant of permission to appeal

The grant of permission to appeal

In response to case management directions permitting JW (following disclosure by DBS of documents held by it) to amend her “reasons for appealing” as set out in her application form for permission to appeal, JW’s solicitors submitted a “perfected grounds of appeal” document on 4 August 2023. This made a number of factual assertions:

at paragraphs 7 to 10, it asserted facts about JW’s background

at paragraphs 12 to 26, it asserted facts about the “background” to the “barring incident”

at paragraphs 27 to 34, it asserted facts about the “barring incident” itself;

It then recited relevant law. At paragraph 41, under the heading “Grounds”, it said that

JW accepted that the “primary finding of fact” made by DBS was accurate

JW’s appeal was on the basis that

(i)

DBS failed to show that JW engaged in relevant conduct; and/or

(ii)

DBS’s decision was disproportionate, irrational and/or perverse in all the circumstances;

The document then set out enumerated grounds as follows:

ground 1: mistake of fact and error of law: primary finding of fact of creating a risk or causing emotional and physical harm – paragraphs 43 and 44; paragraph 44 contains 13 bullet points under the heading “Holding the door closed”, and one under the heading “Telling Miss X that she did not like working with her and called her violent and unpredictable”, all making factual assertions

ground 2: secondary findings of fact re: risk posed

ground 3: error of law: the structured judgement process is flawed

ground 4: proportionality of the barring decision.

Permission to appeal was given by the Upper Tribunal (Judge Citron) in a decision (the “permission decision”) issued on 5 October 2023. The reasons given in the permission decision were as follows:

“The grounds of appeal essentially rest on factual assertions by JW, to the effect that the key finding of fact on which DBS’s decision was based failed to take into account relevant and important contextual facts such as:
• it was not JW’s role to provide care for Miss X (see paragraphs 15 and 23 of the “perfected” grounds of appeal)
• only two female staff were permitted to change Miss X’s pad (see paragraph 28 of the “perfected” grounds of appeal)
• Miss X had caused serious physical injury to other members of staff (see paragraph 25 of the “perfected” grounds of appeal)
• JW held the door closed to protect herself and Miss X (see paragraphs 29 and 44 of the “perfected” grounds of appeal)
It seems to me arguable that factual assertions of this kind could be proved by JW on the balance of probabilities, and that, if they were so proved, that DBS made a mistake in the finding of fact on which the decision was based, and/or on a point of law, by omitting important and relevant context.”