[2024] UKUT 239 (AAC)

We have examined all the evidence in the case with care, both that which was before the DBS and that provided by the Appellant as part of her appeal (must of which was not available to the DBS at the time it made its Decision). The evidence that was before the DBS when it made its Decision obviously did not include all the factual representations and evidence we received from the Appellant during the hearing. Those factual representations and evidence, denying the allegations, were in similar terms to the matters contained in the notice of appeal dated April 2022 and OPH (but more detailed).

We make findings of fact on the balance of probabilities as set out below. In light of these, we consider whether the DBS made mistakes of fact in accordance with the approach set out in PF v DBS. The burden of proof remained on the DBS when establishing the facts and making its findings of relevant conduct in its barring decision. Thereafter on the appeal to the UT, the burden was on the Appellant to establish a mistake of fact (see PF at [51]):

Furthermore, ‘In determining whether the DBS has made a mistake of fact, the tribunal will consider all the evidence before it and is not confined to the evidence before the decision-maker. The tribunal may hear oral evidence for this purpose…. In reaching its own factual findings, the tribunal is able to make findings based directly on the evidence and to draw inferences from the evidence before it...The tribunal will not defer to the DBS in factual matters but will give appropriate weight to the DBS’s factual findings in matters that engage its expertise.’

We note that the Appellant attended the hearing of the appeal, gave evidence and was cross examined. This is in contrast to the witnesses relied upon by the DBS who did not. Their evidence was written and untested, it consisted of handwritten or typewritten notes of answers given to questions or in interview.

While potentially less weight is to be given to the written evidence of those DBS witnesses, and their reliability and credibility has been impugned by the Appellant, we have had to balance this against our assessment of the Appellant’s reliability and credibility having heard her give oral evidence.

We are not satisfied that the Appellant was a reliable and credible witness. We set out our reasoning for this in the section below when addressing Grounds 1 and 2 (claiming mistakes of fact in relation to the two findings of relevant conduct). We find that the Appellant’s explanations for why colleagues and a child under her care (N) have made up false allegations against are implausible – inherently unlikely. They are also unsupported by any contemporaneous or documentary evidence.

Further, we are satisfied that the Appellant’s evidence is inconsistent with the contemporaneous evidence and a number of witnesses who gave evidence against her. Her written and oral evidence to the Tribunal was also internally inconsistent and contradicted the earlier accounts given by her to X services, her former employer, in relation to Finding 1. The Appellant’s explanation for the first incident in November 2020, which she has relied on since April 2022, also deviated and was inconsistent with the more contemporaneous account in relation to Finding 1 that she gave to colleagues at the Home and her employer. The Appellant’s contemporaneous account in relation to Finding 1 came close to a full admission to the relevant conduct.