[2025] UKUT 221 (AAC)

This appeal succeeds. The Upper Tribunal finds that DBS’ barring decisions involved mistakes of law as described in the preceding section of these reasons.

If the Upper Tribunal allows an appeal against a DBS barring decision, section 4(6) of the 2006 Act requires the Upper Tribunal to either direct the Appellant’s removal from the barred list/s or remit the matter to DBS for a new decision. We have given careful consideration to whether we should direct the Appellant’s removal from the barred lists. Despite having found that many of the adverse findings of fact made and relied on DBS were flawed, we do not consider that this is an appropriate case in which the Upper Tribunal, rather than DBS, should decide whether the Appellant is to be barred from working with children and/or vulnerable adults. We therefore remit this matter to DBS for a new decision.

In deciding this appeal, we have carried out a thorough examination of the written and oral evidence. We therefore exercise our power under section 4(7)(a) of the 2006 Act to set out findings of fact on which DBS must base its new decision. Those findings are as follows:

on the night of 13/14 December 2019, while working as a waking night support worker at Home 1, the Appellant was asleep on the sofa in the lounge of that home when, at or around 4 a.m., the sleeping night support worker TE entered the lounge;

prior to the night of 6/7 November 2020, the Appellant had not been provided with, or invited to read, care and support plans for the young people resident at Home 2;

had normal procedures been followed at Home 2, the Appellant would, prior to the night of 6/7 November 2020, have been provided with, or invited to read, care and support plans for the young people resident at Home 2;

on the night of 6/7 November 2020, and on prior night shifts, the waking night member of staff at Home 2 was not expected to complete all cleaning and domestic tasks on the ground floor, and complete the day/night handover process, in the 30-minute period before day staff departed at 10.00 p.m.;

on the night of 6/7 November 2020, the Appellant could not have been present in the office on the middle floor of Home 2 from 10 p.m. until the end of his shift without failing to complete his cleaning and other duties on the ground floor of Home 2;

the Appellant was not on 5 October 2020 given a specific instruction by Home 2’s manager that, during a night shift, he was required to keep the middle floor office open in order to safeguard young people who displayed sexualised behaviour;

prior to the night of 6/7 November 2020, the Appellant was not informed that Home 2 had a policy that the middle floor office door was to be kept open all night;

the Appellant was not instructed by Home 2’s management that he was required, throughout his night shift on 6/7 November 2020, to conduct hourly checks of all or certain residents;

the Appellant failed to make a written record of an incident that occurred at Home 2 about two weeks before the incident of 6/7 November 2020 involving the same two young people as were involved in that incident.