[2024] UKUT 286 (AAC)

The Appellant gave cogent evidence as to the impact that the barring decision has had upon her which we accept.

She stated that she had struggled to find work as she had spent her most of her working life in care. After taking a break from care work in 2018-2020 because she had suffered a lot of anxiety and depression, she had specifically gone back in to care work because of COVID. Barring had greatly impacted her life, caused her much mental stress and financially affected her - she nearly lost her home by way of eviction. She had rented her house and had three young people at home. Luckily, she had subsequently been able to go into working for a pharmacy after working for a bank. She was now working towards pharmacy qualifications, her confidence having been shot. Her manager has offered for her to go on a course for the NHS to qualify as a pharmacy technician but she would not be able to do that or progress in her job while subject to the barring decision. She had no intention to go back into care work even though she had loved it - it was not a job she loved anymore. She would not be able to progress in pharmacy work and work in hospitals or prisons or in a dispensing capacity if she stayed on the barred lists and she would like to progress in her career.

She did not believe that she presented any risk of harm to any vulnerable adult, had never caused harm and there had never been any other report against her. She had received so many letters and cards from families of those she had cared for. This was a one-off silly mistake - she felt that her reputation had been ruined and she was too ashamed to tell her father about it.

Given the findings of relevant conduct that the DBS had made, it was not a “perverse” or irrational decision by DBS to have included the Appellant on the ABL at the time it made its decision. There is a high bar for perversity/irrationality challenges to barring decisions and we are satisfied that the decision to bar was neither perverse nor irrational but one the DBS was entitled to reach at that time. Obviously, the DBS will have to re-decide whether it is appropriate and proportionate to bar the Appellant from regulated activity with vulnerable adults based on the findings we have now made.

The decision that it was “appropriate” in all the circumstances to bar JLA is outside our jurisdiction to examine but we will always need to consider the proportionality of any barring decision.

We next consider if there was any mistake of law in the barring decision made at the time on the grounds of proportionality. It is accepted that barring represents an interference with a person’s private life for the purpose of Article 8 of the Convention but the question is whether it is proportionate.

In summary, the proportionality of DBS’s decisions to include individuals on the barred lists should be examined applying the tests laid down by Lord Wilson in R (Aguilar Quila) v Secretary of Stage for the Home Department [2012] 1 AC 621 at para 45: