Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 277 (AAC)

Fecha: 25-Jun-2024

Jurisdiction of the Upper Tribunal

Jurisdiction of the Upper Tribunal

Section 4(2) of the Act confers a right of appeal to the Upper Tribunal against a decision by DBS under paragraph 3 of Schedule 3 (amongst other provisions) only on grounds that DBS has made a mistake

on any point of law;

in any finding of fact on which the decision was based.

The Act says 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” (section 4(3)).

Permission to appeal was given by the Upper Tribunal (Judge Citron) in a decision issued on 11 January 2024. The permission decision noted that

DBS’s core factual findings were based on documentary evidence, including:

(i)

an undated email from HA about his interaction with AR on 23 May 2022 (pages 57-59 of the Upper Tribunal bundle)

(ii)

note of employer’s “investigatory interview” with AR on 25 July 2022, with an handwritten note at the end stating that DC Vince attended on 1 August 2022 and read it to AR who verified it to be accurate (pages 141-143 of the Upper Tribunal bundle)

(iii)

note of employer’s “investigatory meeting” with HA on 1 June 2022 (pages 60-72 of the Upper Tribunal bundle).

HA had indicated that, if permission to appeal were given, the Upper Tribunal would hear oral evidence from

(i)

HA, denying core factual finding a.; denying, and giving relevant context for, core factual finding b.; and denying core factual finding c.;

(ii)

three other persons who worked at the neurological rehabilitation centre where HA worked at the relevant time:

JRL, a registered social worker, who had trained/mentored HA, and who could speak to core factual finding c. in particular;

GLW (whose written evidence is at page 55 of the Upper Tribunal bundle); and

RK (whose client was in the room next to AR’s at the neurological rehabilitation centre, at the relevant time).

The permission decision concluded that it was realistically arguable that the oral evidence above, which was not available to DBS, could, if deemed credible, provide information sufficient to show that DBS made mistakes in the findings of fact on which its decision was based