[2025] UKUT 221 (AAC)

any mistake of fact must be material to the barring decision;

the Upper Tribunal must carefully distinguish findings of fact from value judgments based on DBS’ findings of fact, such as an assessment of risk or evaluations of the relevance or weight given to findings of fact in assessing appropriateness;

a disagreement about the evaluation of the evidence is not ‘an error of fact’ and, if the material before DBS permits a particular finding on the balance of probabilities, the DBS did not make a mistake in making that finding;

if the Upper Tribunal allows an appeal against a barring decision, it should remit the matter back to DBS to reconsider whether barring is appropriate back unless no other decision but removal from the barred list/s is permissible following the Upper Tribunal’s decision.

the allegation that the Appellant was asleep was the subject of a “thorough investigation” by the former employer and “found proven”; his claim to have been praying rather than sleeping was rejected and, in DBS’s submission, “wholly improbable”. The appeal against Finding 1 is hopeless;

the appeal against Finding 1 is really an impermissible attempt to persuade the Upper Tribunal to evaluate differently the evidence that was before DBS. This is shown by the Appellant’s arguments that “disproportionate weight” was given to a piece of evidence or that there was “no direct evidence of the Applicant being asleep, but only the inference to be drawn”.

again, the Appellant really asks the Upper Tribunal to make different findings of fact on the same evidence that was before DBS;

the Appellant completed no paperwork to record his supposed hourly checks, nor did he record hearing a child visit the toilet at 2 a.m. and, on his account, shut his office door to read a book, which prevented him from adequately monitoring the children, or not monitoring them at all. The Appellant’s excuse for nor recording his actions – no pen available – is “somewhat feeble and improbable”;

the Appellant said that he did do hourly checks so the question whether such checks were required is of little importance;

the Appellant was expressly told by LW on 5 October 2020 that he needed to be in the staff office on the middle floor with the door open to safeguard the children who displayed sexualised behaviours;

the Appellant accepted during his interview with LW that he was supposed to read service users’ paperwork. DBS were entitled to find on the evidence that the Appellant should have sought out care plans, even if not provided by the employer, particularly given the behaviour witnessed shortly before the young people were discovered in a bedroom together. The Appellant was an experienced carer and fully trained. Had the care plans been consulted, the Appellant would have been aware that both young people posed sexual safeguarding risks;

in the absence of any written records completed by the Appellant, DBS would have been entitled to rely on the former employer’s finding that the two young people had been together in a bedroom since 2 a.m. In fact, DBS did not make any express findings about how long the children were together in a bedroom, but there was clear evidence before DBS that the incident did not happen during the very brief handover period but at some earlier time:

the Appellant’s failure to report the earlier incident was “inexcusable”. DBS’ finding that he failed to report it was properly supported by the evidence (Home 2’s managers comments when interviewing the Appellant) and the Appellant himself said that he may have forgotten what he had been told. He also accepted that he should have ‘handed over’ the incident to day staff;

the Appellant’s criticisms of the former’s employer’s practices are baseless and contradicted by the LADO minutes. DBS took into account the LADO’s recommended changes to procedures, but these recommendations do not undermine the barring decisions. LADO minutes also record that the employer acted quickly and efficiently in response to the incident.

before the events of Findings 2 and 3, the Appellant was given a final written warning for sleeping on duty, and an express instruction, before the events of Finding 2, to keep the door to the office open “to safeguard children with highly sexualised behaviours”;

had the Appellant not failed to report the earlier incident, the incident on 7 November 2020 may not have occurred;

on the night of Finding 2, the Appellant failed to follow a young person from the toilet back to his bedroom so that he could avoid meeting the young person’s needs and, instead, closed his office door, read a book and failed to keep a note of his supposed hourly checks;

by failing to seek out service user documentation in advance, the Appellant’s actions / inactions led directly to children suffering harm and to them making allegations of physical and sexual abuse against each other, as evidenced by the finding that the LADO referral threshold was met.