[2025] UKUT 221 (AAC)

DBS’ barring decision making process document (BDMP) contained “no evidential analysis”;

TE’s interview clearly shows that, following a brief look, she wrongly assumed that the Appellant was asleep in the lounge of Home 1. There is no evidence that the Appellant’s eyes were shut or that TE made any attempt to interact with him. A finding that the Appellant was asleep can only be made by inference from the reported circumstances. Since the Appellant is of good character, a finding that he was asleep, whether or not based on an inference, would only be legitimate if supported by cogent evidence;

the Barring Decision Making Process document (BDMP) shows that DBS misread the evidence in finding that the Appellant said ‘he would not change any of his actions’. What he actually said was that he ‘could not have done anything differently’ which does not show a lack of insight and should have been excluded as a risk factor. Similarly, there is no evidence to support the BDMP findings that the Appellant “did not care about [service users] when he slept on shift at all” and “prioritised his own comfort by lying on the couch” (there was no evidence that lying on the couch in Home 1 was not permitted);

DBS found that the doorbell could be heard clearly from the lounge but, in that case, why was the Appellant issued with a mobile phone so that he could let young people in? There was no evidence that service users were woken by the doorbell which would be expected if it were as loud as DBS contend.

the evidence shows that one of the young people entered the Appellant’s office at 6.55 a.m. and could not, therefore, have been in another young person’s bedroom at that time. Other evidence shows that the young people were discovered together at 7.20 a.m. and the LADO minutes suggest that “[YP1] alleged that about 6.40am…Child [YP2] knocked on his door and asked him for sex”. All this supports the Appellant’s case that the incident occurred during the handover period and not five hours earlier, which strengthens his case that hourly checks were done as required. These errors of fact were clearly material to the barring decision;

comments that the Appellant is said to have made to LW (manager of Home 2) during an informal conversation should not have been relied on as a risk factor. There is no evidence that the Appellant failed to ask to see YP1 and YP2’s paperwork. This should not have been relied on as a risk factor. The same applies to the findings that the Appellant failed to carry out required visual checks, and failed to appreciate that the service users had emotional, behavioural and social difficulties;

the Appellant’s argument that, had he been made aware of the nature of the risks associated with these young people, he would have viewed hourly checks as inadequate, was supported by the LADO’s recommendation for heightened safeguarding measures at Home 2. In any event, there was little or no evidence that the Appellant was actually required to undertake nightly visual checks. The LADO minutes stated that “day staff provide night staff with updates…to let them know if anything has occurred which requires visual observations to take place…LW…adds that nightly visual checks would usually only be completed if they were presenting as unsettled or dysregulated”. The minutes also suggest that hourly checks were only implemented after the 7 November 2020 incident, and confirm the onerous cleaning duties of waking night staff which, of themselves, made it impossible for waking night staff to supervise bedrooms all night. DBS now argue that it is irrelevant whether hourly checks were required but this overlooks that DBS made an adverse finding that the Appellant failed to adhere to Home 2’s safeguarding and monitoring procedures;

it was not open to DBS to find that hourly checks were not performed solely because a written record was not made;

if, as DBS seem to suggest, night waking staff were required to monitor children throughout the night, they should not have been allocated cleaning, washing and ironing duties on a different floor to that on which young people slept. It was impossible for night staff to do both things;

the young people’s documentation has not been “considered” (which we assume means produced in evidence) and so DBS was not entitled to conclude that the Appellant failed to support young people in line with their care plans. The same applies to Home 2’s safeguarding and monitoring procedures;

there was no evidential basis for DBS’ finding that, had the earlier incident been reported, the subsequent incident may have been prevented. And DBS had no evidence that the incident required reporting and to whom. Nevertheless, the Appellant acknowledged the need to ‘handover’ the incident, which he did, but reasonably assumed it was for day staff to write up the incident;

it is not disputed that the young people’s ‘paperwork’ was locked in Home 2 manager’s office. The employer was ultimately responsible for the safety and wellbeing of young people in its care and, as such, it was their responsibility to ensure that all staff were aware of relevant information. Bank staff rely on a thorough handover of risk yet there is no evidence that the Appellant was made aware of any risk related to YP1 and YP2’s sexualised behaviour. These considerations were not taken into account, or not given appropriate weight, when DBS made the adverse finding that the Appellant failed to read the young people’s documentation;

overall, DBS’ failure to appreciate the context to the incident of 7 November 2020 led to it making findings of fact, and drawing inferences, which were not open to it on the evidence. This failure also suggests that DBS did not assess the facts fairly and impartially;

DBS unfairly refused to ascribe any blame to the Appellant’s former employer. Their characterisation of the Appellant’s criticisms as ‘baseless’ went against the weight of the evidence, in particular the LADO meeting minutes.

the Upper Tribunal may examine the same material as was before DBS and come to a different conclusion ‘in circumstances where mistake has been demonstrated’;

a finding may be wrong where the Upper Tribunal has evidence not before DBS, which demonstrates that a DBS finding was wrong;

the Upper Tribunal’s error of law jurisdiction allows it to hold that a barring decision was unreasonable, irrational or disproportionate;