Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 286 (AAC)

Fecha: 22-Jul-2024

No mistake of law

97.

Mr Reichhold relied on the fact that the Appellant did not appear to have set out, expressly, any specific mistake(s) of law. However, bearing in mind the grant of permission in this respect, he submitted that:

On the DBS’s core findings, the Appellant’s conduct unarguably constituted “relevant conduct” within the meaning of the Act, as conduct likely to put a vulnerable adult at risk of physical and/or emotional/psychological harm (or indeed was likely to cause such harm). It is also noted that the Appellant has left open the possibility of undertaking care work in the future [6].

The DBS expressly carried out a proportionality assessment, including the impact of the barring decision on the Appellant, and her ECHR rights [140] [163].

It was appropriate and reasonably necessary to include the Appellant in the ABL, as the legitimate and important aims of DBS, and the wider safeguarding regime, could not be adequately met by other less-restrictive means. Those important aims outweighed, and continue to outweigh, the Appellant’s rights.

98.

By comparison to the present case, the Tribunal may wish to consider the UT’s approach in JA v DBS [2024] UKUT 60 (AAC). In that case, the appellant care worker was included in the children’s barred list and the ABL on the basis that JA “slept on shift during your waking night shift, leaving service users in your care without support for up to 1 hour” (at §1). It was argued on the appellant’s behalf that the barring decision was disproportionate. The UT disagreed, and concluded that:

“23.
[…] We consider that DBS made a proper assessment of JA’s Convention right under Article 8. This was the only occasion on which JA had fallen asleep on duty. She had been subject to numerous spot checks in the past and had always been awake at the time of the visits, although she told us that it was usual for the managers to ring the door bell. In those circumstances, it may seem harsh to ban her from any work in regulated activity with children and vulnerable adults. But the legislation allows only two options: to bar or not to bar. Unlike other regulators, DBS has no power to suspend a care worker for a period or to impose conditions on her working in the sector.
24.
When JA fell asleep, it was not just something that could have happened to anyone. She did not suddenly find herself overcome by illness or fatigue. She was not exhausted after a long run of night shifts. She was not inexperienced at adjusting to staying awake throughout the night. She was a seasoned night worker, she knew it was her responsibility to stay awake, and she had her own experience as well as her employer's policy to rely on to help her remain watchful. Although she could call on her fellow carer, it was her duty to ask for help. Her co-worker was entitled to sleep and was not responsible for overseeing or checking on JA. JA was the first line of protection for the residents should anything happen. Despite that, she set herself up to fail without taking even the simple precaution of having a mug of coffee to keep her awake. In those circumstances, we consider that it was proportionate for DBS to exercise its protective role as it did and include her in the lists.”

99.

Mr Reichhold therefore submitted that the DBS’s decision was proportionate, and that it was not irrational or unreasonable (in the Wednesbury sense) to conclude that there is a risk of the Appellant engaging in relevant conduct in the future.