[2024] UKUT 224 (AAC)

Schedule 3 to the SVGA applies for the purposes of DBS determining whether an individual is included in either or both Barred Lists.

Under Section 3(2)(a) SVGA a person is barred from “regulated activity” relating to children if they are included in the Children’s Barred List, and under Section 3(3)(a) Under Section 3(3)(a) a person is barred from “regulated activity” relating to vulnerable adults if they are included in the Adults’ Barred List.

The Appellant has been included by the DBS on the Children’s Barred List pursuant to Schedule 3, Part 1, paragraph 3 SVGA (which relates to children and is headed “Behaviour”) and in the adults’ barred list pursuant to Schedule 3, Part 2, paragraph 9 SVGA (the equivalent provision relating to vulnerable adults, which is also headed “Behaviour”).

Paragraph 3 of Part 1 of Schedule 3 to the SVGA provides:

“3.

(1) This paragraph applies to a person if –

(a)

it appears to DBS that the person—

(i)

has (at any time) engaged in relevant conduct, and

(ii)

is or has been, or might in future be, engaged in regulated activity relating to children, and

(b)

DBS proposes to include him in the children’s barred list.

(2)

DBS must give the person the opportunity to make representations as to why he should not be included in the children’s barred list.

(3)

DBS must include the person in the children’s barred list if —

(a)

it is satisfied that the person has engaged in relevant conduct,

(aa) it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children, and

(b)

it is satisfied that it is appropriate to include the person in the list. ...”

By section 5(1) of the 2006 Act, a reference to regulated activity relating to children must be construed in accordance with Part 1 of Schedule 4. By section 59 SVGA “child” means a person who has not attained the age of 18. Regulated activity relating to children includes any form of care or supervision of children (paragraph 2(1)(b) of Schedule 4), and any form of advice or guidance provided wholly or mainly for children (paragraph 2(1)(c) of Schedule 4) carried out frequently by the same person (paragraph 1(1)(b) of Schedule 4).

“Relevant conduct” in relation to children is explained in paragraph 4 of Part 1 of Schedule 3 to the SVGA as follows:

“4.

(1) For the purses of paragraph 3 relevant conduct is –

(a)

conduct which endangers a child or is likely to endanger a child;

(b)

conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him;

(c)

conduct involving sexual material relating to children (including possession of such material);

(d)

conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to DBS that the conduct is inappropriate;

(e)

conduct of a sexual nature involving a child, if it appears to DBS that the conduct is inappropriate.

(2)

A person’s conduct endangers a child if he –

(a)

harms a child,

(b)

causes a child to be harmed,

(c)

puts a child at risk of harm,

(d)

attempts to harm a child, or

(e)

incites another to harm a child. …”

Paragraph 9 of Part 2 of Schedule 3 to the SVGA provides:

“9.

(1) This paragraph applies to a person if-

(a)

it appears to DBS that the person—

(i)

has (at any time) engaged in relevant conduct, and

(j)

is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults, and

(b)

DBS proposes to include him in the adults’ barred list.

(2)

DBS must give the person the opportunity to make representations as to why he should not be included in the adults’ barred list.

(3)

DBS must include the person in the adults’ barred list if-

(a)

it is satisfied that the person has engaged in relevant conduct,

(aa)

it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults, and

(b)

it is satisfied that it is appropriate to include the person in the list.”

By section 5(2) SVGA, a reference to regulated activity relating to vulnerable adults must be construed in accordance with Part 2 of Schedule 4. By section 60 SVGA, a vulnerable adult means any adult to whom an activity which is a regulated activity relating to vulnerable adults by virtue of any paragraph of paragraph 7(1) of Schedule 4 is provided.

“Relevant conduct” in relation to vulnerable adults is explained in paragraph 10 of Part 2 of Schedule 3 to the SVGA as follows:

“10.

(1) For the purses of paragraph 9 relevant conduct is –

(a)

conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult;

(b)

conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him;

(c)

conduct involving sexual material relating to children (including possession of such material);

(d)

conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to DBS that the conduct is inappropriate;

(e)

conduct of a sexual nature involving a vulnerable adult, if it appears to DBS that the conduct is inappropriate.

(2)

A person’s conduct endangers a vulnerable adult if he –

(a)

harms a vulnerable adult,

(b)

causes a vulnerable adult to be harmed,

(c)

puts a vulnerable adult at risk of harm,

(d)

attempts to harm a vulnerable adult, or

(e)

incites another to harm a vulnerable adult.

…”

The Appellant does not dispute that he has in the past been engaged in regulated activity relating to vulnerable adults or that he might seek to be engaged in regulated activity with vulnerable adults or with children in the future. Indeed, the reason he has pursued his appeal is that he wants very much to return to a role helping patients.

The Appellant also accepts that the conduct which the DBS has found him to have engaged in would amount to ‘relevant conduct’. His case is simply that he has not engaged in that conduct.