Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 318 (AAC)

Fecha: 30-Jul-2024

Jurisdiction of the Upper Tribunal

Jurisdiction of the Upper Tribunal

Section 4(2) of the Act confers a right of appeal to the Upper Tribunal against a decision by DBS under paragraph 3 of Schedule 3 (amongst other provisions) only on grounds that DBS has made a mistake

on any point of law;

in any finding of fact on which the decision was based.

The Act says that “the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact” (section 4(3)).

Permission to appeal was given by the Upper Tribunal (Judge Citron) in a decision issued on 11 April 2024. The permission decision indicated the kind of evidence RR would present at a substantive hearing, to support an argument that there was a material mistake in DBS’s factual finding, as follows:

Finding 1: RR’s evidence would be that he did drink some “Lambrini”, but that it was a very small volume (and so DBS’s finding made the mistake of omitting material context); and that he did have the permission of the service users who owned it (and so DBS’s finding was mistaken to have found otherwise). The permission decision also noted that, according to the internet, “Lambrini” was a light and fruity pear cider;

Finding 2: RR’s evidence would be that he would not have drunk the alcohol (cider) without first consulting his manager (and so DBS’s finding made the mistake of omitting material context);

Finding 3: RR’s evidence would be that this happened infrequently and well away from service users, in particular when he was approaching the toilet (and so DBS’s finding made the mistake of omitting material context);

Finding 4: RR’s evidence would be to deny that he did not follow service users’ support plans. The permission decision noted that, in addition, the documentary evidence suggested that a “language barrier” may have been a factor here (see for example page 93 of the Upper Tribunal bundle (DBS’s “barring decision summary” document)) – yet DBS’s finding did not resolve whether this was the reason for the problems identified. This was arguably a mistake of failing to make a necessary and material finding of fact;

Finding 5: RR’s evidence would be that there was nothing in his (RR’s) behaviour (such as the allegation that RR “got too close” to JP) that, considered objectively, caused JP to not eat or drink; in any case, RR’s evidence would be that his (RR’s) conduct did not cause JP not to eat or drink (as JP often did this, regardless of which member of staff was assisting him); hence, the finding by DBS was mistaken.

The permission decision concluded that it was realistically arguable that RR’s oral evidence, which was not available to DBS, could, if deemed credible, provide information sufficient to show that DBS made material mistakes in all or some of its findings of fact.