[2024] UKUT 286 (AAC)

The DBS’s second finding of relevant conduct was that:

At no stage did the Appellant deny this finding. By way of context, she explained that she had seen a celebrity visitor to the home and on what she described as an unpaid break during the working day she went to get a photograph with them outside the home. It was during the time of COVID restrictions. She stated that did not understand that PPE policy applied during her breaks outside the home. We accept her evidence – albeit that again it is mitigation and does not reveal any mistake of fact in the finding.

While there had also been an allegation that the Appellant had then posted the photograph on social media in breach of the Employer’s social media policy, this was not relied upon by the Employer.

Therefore, there was no mistake of fact in Finding 2.

We do note that while the DBS relied on this finding as constituting relevant conduct within the Final Decision Letter, it did not go on to say anything else about it in the letter nor rely on it as a reason for the barring decision. Therefore, it is not clear if it played a material part in the barring decision.

Further, it is by no means clear that the finding constitutes relevant conduct as a matter of law. There is no suggestion that any vulnerable adult was actually put at risk of any harm by the Appellant’s conduct. The question is then whether, if the Appellant’s conduct were repeated in respect of a vulnerable adult, it would put them at risk of harm. This would depend on how close the Appellant was standing to the other person without wearing a facemask or PPE – ie whether if the conduct was repeated in relation to a vulnerable adult there would be a risk of the Appellant passing on or contracting COVID or any other infectious disease which in turn might put all residents at risk of contracting it.

There was no evidence relied upon by the DBS or reasoning in the barring decision process document as to why the finding constituted relevant conduct or posed a risk of harm to an actual or hypothetical vulnerable adult. The rationale set out in the barring decision process document was limited to the following (essentially that it was a breach of PPE policy):

We therefore find that there was a mistake of law in relation to this finding. The DBS failed to provide any reasons or evidence in its final decision letter or barring decision process document as to why the finding of fact it relied upon constituted relevant conduct (ie. if repeated in relation to vulnerable adults would cause a risk of harm).

In light of our findings that there was a material mistake of fact in relation to the first finding of relevant conduct and a mistake of law in relation to the second finding of relevant conduct, we have decided to remit the Appellant’s case to the DBS for a fresh barring decision based upon the findings we have made above (see sections 4(6)(b) & (7)(a) of the Act). Given that there has been an admission by the Appellant to much of the first finding of relevant conduct in relation to the catheter incident, and there is no dispute that it constitutes relevant conduct, it would not be appropriate for us to direct the Appellant’s removal.

The DBS will need to reconsider the appropriateness and proportionality of including the Appellant on the ABL in light of the findings we have made.

It is therefore unnecessary for us to decide whether the decision to bar the Appellant was proportionate and whether there was any other mistake of law based upon the findings it relied upon.

Nonetheless, we offer some observations upon the proportionality of the barring decision to assist the DBS in re-making its decision.