Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 224 (AAC)

Fecha: 01-Jul-2024

On appeal from the Disclosure and Barring Service ( “DBS” )

On appeal from the Disclosure and Barring Service (“DBS”)

DBS Reference: 00982299914

Final Decision Letter: 16 June 2023

This decision is given under section 4 of the Safeguarding Vulnerable Groups Act 2006 (“SVGA”)

The appeal is allowed.

The decision of the DBS made on 16 June 2023 to place the Appellant’s name on the Adults’ Barred List and the Children’s Barred List was based on a material mistake of fact.

Pursuant to section 4(6)(a) of SVGA the Upper Tribunal directs that the Appellant’s name is removed from both the Adults’ Barred List and the Children’s Barred List.

REASONS FOR DECISION

Background

At the relevant time the Appellant was working as a nursing auxiliary on a hospital ward.

It was alleged that, while working as an auxiliary nurse, the Appellant inserted two of his fingers into the vagina or a vulnerable adult patient in his care and applied pressure to the patient’s vaginal wall to cause her to pass a stool, a procedure which was not authorised by his employer.

The Appellant denied the allegations, but his employer, and subsequently the DBS, found on the balance of probabilities that he had done what was alleged.

The DBS decided that the Appellant’s conduct was ‘relevant conduct’ in relation to vulnerable adults (being conduct which endangered a vulnerable adult or was likely to endanger a vulnerable adult), and also ‘relevant conduct’ in relation to children (being conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him or her). The DBS decided that it was both appropriate and proportionate to place the Appellant’s name on both the Adults’ Barred List and the Children’s Barred List.