[2024] UKUT 318 (AAC)

RR argued that barring should be for “abuse”; and DBS’s factual findings did not come anywhere near showing RR had “abused” service users. This seemed to us, in legal terms (and bearing in mind that the Upper Tribunal has no jurisdiction to question whether a barred list decision by DBS is “appropriate”), to be an argument that DBS’s decision was irrational, or disproportionate.

DBS submitted that the matters that caused RR to be included in the list must be viewed cumulatively; they demonstrated a pattern of conduct by RR of not adhering to rules and guidance for the safety of the service users. DBS argued that RR’s conduct had the capacity to cause harm to a vulnerable adult if repeated and suggested that RR was temperamentally unsuited to work with vulnerable service users.

In our view, and based on DBS’s factual findings (which we have found contain no material mistake), DBS’s decision was not irrational, as there is a pattern of non-compliance with rules and procedures on RR’s part. As far as proportionality of DBS’s decision is concerned, this is at heart a balancing exercise, with, on the one side, the risk RR posed to the safeguarding of vulnerable adults, and, on the other side, the detriment to RR of his being barred (being that he would be unable to work in his chosen field of care). It is well established that in striking this balance, appropriate weight must be given to DBS’s views on safeguarding risk, as this is its specialist field; as well as to public confidence in the safeguarding of vulnerable persons. In our view, and given that DBS’s decision was a rational one, the balance is struck in favour of avoiding the safeguarding risk posed by RR. DBS’s decision was not, therefore, disproportionate.

Finally, we acknowledge that RR felt that he was not afforded “due process”. We have no jurisdiction as regards the process followed by his employer; but as regards the process followed by DBS, we can see no procedural irregularity that would amount to an error of law, and so see no mistake on a point of law in DBS’s decision in this respect.