Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 286 (AAC)

Fecha: 22-Jul-2024

Discussion: Findings of Fact and Analysis of grounds of appeal

Discussion: Findings of Fact and Analysis of grounds of appeal

100.

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 (most of which was not available to the DBS at the time it made its Decision).

101.

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. The Appellant’s factual representations and evidence denying many of the allegations, were in similar terms to the grounds contained in the notice of appeal dated 14 September 2023.

102.

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 and DBS v RI. 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]):

‘The starting point for the tribunal’s consideration of factual matters is the DBS decision in the sense that an appellant must demonstrate a mistake of law or fact. However, given that the tribunal may consider factual matters for itself, the starting point may not determine the outcome of the appeal. The starting point is likely to make no practical difference in those cases in which the tribunal receives evidence that was not before the decision-maker.’

103.

Furthermore, the UT stated in PF:

‘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.’

104.

The Appellant relied upon her notice of appeal and the submissions of fact she made therein as set out above. She supplemented this with oral evidence of fact given during the appeal hearing. As noted above and below, her oral evidence was consistent with the factual representations she made in the notice of appeal.

105.

We also 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 consisted of written notes of answers given to questions from the Employer and it was untested by cross examination so that potentially less weight is to be given to the written evidence of those DBS witnesses. As is made apparent below, their reliability and credibility has been impugned by the Appellant. Therefore, we have had to balance our assessment of their reliability and credibility against our assessment of the Appellant’s reliability and credibility having heard her give oral evidence.

106.

We are satisfied that the Appellant was a reliable and credible witness in the oral evidence that she gave the Tribunal. We set out our reasoning for this conclusion in the section below when addressing Grounds 1 and 2 and the alleged mistakes of fact in relation to the findings of relevant conduct.