![[2024] UKUT 379 (AAC)](https://backend.juristeca.com/files/emisores/logo_3a2BKne.png){kind=logo}
Ground One : That the DBS failed to carry out a fair and appropriate information gathering and assessment exercise, in breach of the requirements of natural justice
Ground One: That the DBS failed to carry out a fair and appropriate information gathering and assessment exercise, in breach of the requirements of natural justice.
Ground Two: The DBS was wrong to find that LM had slapped his son in 2018.
Ground Three and Four: The DBS was wrong to find that LM had threatened to kill his partner in 2013 and had hit his partner in 2013.
Ground Five: The DBS was wrong to find that LM demonstrated sexualised behaviours to work colleagues in 2007 (three colleagues were identified).
Ground Six: The DBS was wrong to find that LM sexually assaulted a colleague in 2013.
Ground Seven: the DBS was wrong to find that LM had demonstrates sexualised behaviour towards co-workers in 2018.
This decision will take these grounds in turn.
The following evidence was before the Upper Tribunal which was not before the DBS when they made their final decision:
Investigation report concerning incident which took place in 2008 from the relevant care home concerning sexualised behaviours towards work colleagues in 2007.
Letter from care organisation to one of the complainants concerning the 2007 incidents from 2008.
Witness statement of LM.
Witness statement of LM’s wife, CP.
Witness statement of manager of the care home involved in the 2007/2008 incidents (although she started work there after the incidents took place although whilst they were being investigated).
Decision of the Nursing and Midwifery Council Fitness to Practice Committee held in January 2024 and April 2024. This relates to matters of sexual misconduct in 2018.
Why the DBS should not bar me submissions made by LM.
LM had legal representation until the hearing of this matter, and so detailed grounds of appeal were filed which included relevant legal submissions and submissions about the nature and sufficiency of the evidence upon which the DBS relied. The legal representative was not present at the hearing. We allowed LM to try and have his representation reinstated (as it was removed shortly before the hearing in June 2024), but it was not to be. We sought at the hearing to adjust aid LM to present his case including:
Seeking to have him elaborate on his submissions and evidence by allowing him to give evidence in chief and acting in an inquisitorial manner.
Asking that counsel for the DBS and ourselves sought to explain the legal principles in ways that a lay person could understand.
Checking in and summarising complex material in bite sized chunks.
LM and his wife both spoke English very well and showed no difficulty in understanding the nuances of English speech.
- Heading
- This decision is given under section 4 of the Safeguarding Vulnerable Groups Act 2006 ( “SVGA” )
- Ground One : That the DBS failed to carry out a fair and appropriate information gathering and assessment exercise, in breach of the requirements of natural justice
- DBS’s findings and the Barring Decision
- The statutory framework
- Duty to maintain the Barred Lists
- Criteria for inclusion in the Barred Lists
- Appeals of decisions to include, or not to remove, persons in the Barred Lists
- Ground One – has the DBS made an error of law in its approach to or gathering of evidence about LM’s appeal
- Allegations concerning sexual misconduct
- Allegations concerning LM’s children and relationship with his wife
- In respect of sexual misconduct
- In respect of allegations concerning his children and his wife
- Grounds 2 – 7
- Ground Two: The DBS was wrong to find that LM had slapped his son in 2018
- Ground 3 and Ground 4: The DBS was wrong to find that LM had threatened to kill his partner in 2013 and that LM had hit his partner in 2013
- Grounds 5 – 7: initial considerations on issues of propensity
- Ground Seven: “The DBS was wrong to find LM had demonstrated sexualised behaviours with colleagues in 2018”
- Ground 5: the DBS was wrong to find that he had demonstrated sexualised behaviour in 2007 by VM, EH, KW
- Internal investigation which took place in 2008 about events in 2007
- Ground 6: Sexual assault at a care home in 2013
- Conclusions