[2024] UKUT 239 (AAC)

are they no more than are necessary to accomplish it?

In assessing proportionality, the Upper Tribunal has ‘…to give appropriate weight to the decision of a body charged by statute with a task of expert evaluation’ (see Independent Safeguarding Authority v SB [2012] EWCA Civ 977 at [17] as set out above).

We are satisfied that each of questions a)-d) should be answered in favour of the barring decisions being proportionate. There is no real question that the legislative objective of safeguarding vulnerable groups is sufficiently important to justify barring and that barring is rationally connected to protecting those groups.

On a reasonable and objective view, we are satisfied that the DBS was entitled to conclude that it was appropriate and reasonably necessary to bar GR in order to achieve its (important and) legitimate safeguarding aims.

On the fact of this case, having heard all the evidence, we are satisfied that barring is necessary and strikes a fair balance between GR’s right to a private life and the interests of the community. The DBS expressly carried out the “balancing act” exercise required and we have done the same. We are satisfied that the DBS was entitled to consider that the Appellant presented a risk of harm to children at the time of the decision. Her lack of reliability, insight and acceptance at the appeal hearing regarding the incident in Finding 2 confirmed that the Appellant posed a risk of repeating similar acts remained ongoing at the time of the barring decision in April 2022.

We also accept that, taken together with Finding 1 in respect of J in November 2020: (a) they show an escalation in misconduct and a failure to adhere to a warning; (b) the earlier sub-findings are similar in nature to the later conduct in that they are a failure to adhere to professional boundaries; and (c) there was already an allegation, albeit not one that was substantiated at the time, that GR had previously allowed J to visit her house.

Allowing N, a vulnerable 16-year-old in her care who was looked after and had been the victim of abuse or neglect, to smoke cannabis at her house under her supervision may have been capable of constituting a criminal offence (if proved to the requisite standard). More importantly, GR’s actions were likely to expose N to a real risk of physical, emotional or psychological harm. The fact that GR told N to lie to conceal the drug taking by asking him to tell PS, if he asked, that they had been out for a long drive is also concerning.

While the conduct was directed to children it was not ‘child specific’. GR has demonstrated a repeated failure to follow rules designed for safeguarding. She has encouraged or permitted N to break the law by smoking prohibited drugs together, conduct which if repeated towards a vulnerable adult (N was 16) would put them at risk of obvious harm. Her inclusion in the ABL contains no mistake of fact or law.

The DBS also expressly had regard to the adverse impact that a barring decision would or may have on GR’s Article 8 rights to private and family life– in particular the impact on her employment opportunities to work with children. GR has highlighted her long history in care and the impact of the barring on her [211]. We do not seek to underplay the impact of the barring upon her and upset it has caused her, particularly given GR’s previously long and unblemished professional history and the references that speak well of her. Thankfully she has been able to obtain alternative employment outside the care sector or other regulated activity. We accept that barring has significantly disrupted GR’s life.

In upholding the finding of fact that GR smoked cannabis in her own home with N, a vulnerable young person whom she was supposed to care for and asked N to lie about it if challenged, we are not satisfied that the decision is disproportionate.

As GR continues to deny Finding 2 (as well as initially seeking to unpick Finding 1 during evidence in chief which she had previously admitted to), she has demonstrated insufficient insight or self-reflection to establish that she does not pose a risk of repeating similar conduct. She has taken no other corrective actions to establish a reduced risk of causing harm and the passage of three years since the second incident (two years since barring) is not sufficient in itself to demonstrate a reduced risk.

While it might in principle be possible for GR to demonstrate a change of attitude/ approach, and/or insight and self-reflection, to the extent that she might be regarded at some point in the future as a tolerably low risk, GR had/has not demonstrated that she had the necessary insight or tools to do so at the time of the barring decision or now. Paragraphs 18 and 18A of Schedule 3 to the Act allow for reviews of the barring decision to be conducted if fresh evidence comes to light and is presented by the Appellant or on the expiry of the minimum barring period in this case.

Therefore, we are satisfied that when making the barring decisions, the DBS correctly concluded that no other measures were in place sufficient to adequately safeguard children or vulnerable adults from GR participating in regulated activity and committing further acts of misconduct/neglect etc.

We consider that barring was no more than necessary and struck a fair balance between GR’s rights and that of protecting the public interest in safeguarding vulnerable groups – it was therefore a proportionate decision having regard to the relevant conduct the Appellant had committed and the future risk she posed as at April 2022.

We are satisfied that the DBS was entitled to conclude that GR, on the evidence available at the time and now heard, should be barred from working with children or vulnerable adults in regulated activity. There was no mistake of law in the barring decisions.

As noted above, the issue of whether it was “appropriate”, in such circumstances, to place GR on the CBL and ABL is beyond the jurisdiction of the UT, unless the same was either irrational or disproportionate. We are satisfied that the Appellant has not established that barring was either irrational nor disproportionate for the reasons we set out above.

We are therefore satisfied that the DBS did not make material mistakes of fact or mistakes of law when making the barring decision on 29 April 2022 to include the Appellant on the CBL and ABL.