![[2024] UKUT 247 (AAC)](https://backend.juristeca.com/files/emisores/logo_3a2BKne.png){kind=logo}
‘I acknowledge that those advising the appellant wish the Upper Tribunal to consider the issue of whether the respondent’s decision was proportionate
‘I acknowledge that those advising the appellant wish the Upper Tribunal to consider the issue of whether the respondent’s decision was proportionate.
However, although I do not limit the grant of permission, I judge that the principal issue is simply who is telling the truth: is it the appellant or is it the vulnerable adult (‘VA’) whose identity I have ordered not to be disclosed?
I have given permission to appeal because, in my judgment, there is a realistic prospect that the appellant’s version of events will be believed following the final hearing of the appeal.
I will not be a member of the panel that makes the final decision and it therefore would not be right to give detailed reasons as to why I have reached that conclusion. However, one factor is that there are evidential inconsistencies on both sides.
It has also been a matter of concern to me that, although the appellant’s evidence has been (and will be again) given first-hand and tested under cross-examination, the same cannot be said of the evidence against her. She has not had an opportunity to confront those accusing her or to test their evidence.
The mere fact that VA had capacity at the relevant time does not necessarily mean that her evidence is credible. Every working day people whose capacity is not in doubt give evidence in courts and tribunals that could not be accepted by any sensible person.’
Judge Poynter made further comments about evidence, and made orders for the production of some documentation. Leave to appeal was not restricted. The grounds of appeal are at p4. They cover a number of matters of fact and law. The Court of Appeal has decided in Disclosure and Barring Service v JHB [2023] EWCA Civ 982 at [97] that the scope of the appeal is limited to the grant of permission. As we have decided the case on matters of fact, we do not need to consider the matters of law in the grounds.
DBS made helpful written submissions on 2 April 2023 (p1678) maintaining DBS’s position and drawing attention to some features of material which was not before DBS at the time of the decision. DBS’s position remains that there was no mistake of fact or law. We have taken those submissions fully into account.
It was anticipated that an oral hearing of the appeal would take place. However, the Appellant was bereaved and felt unable to attend a hearing. DBS was neutral about whether an oral hearing was required. The case was therefore determined on the papers on 19 July 2024 before a judge and specialist members.
Both parties were given the opportunity to make further submissions. The Appellant made brief submissions restating her position. DBS did not make further submissions.
- Heading
- The appeal is allowed
- Reasons for Decision
- ‘I acknowledge that those advising the appellant wish the Upper Tribunal to consider the issue of whether the respondent’s decision was proportionate
- The legislation
- Mistake of fact
- ‘Drawing the various strands together, we conclude as follows In those narrow but well-established circumstances in which an error of fact may give rise to an error of law, the tribunal has jurisdiction to interfere with a decision of the DBS under s
- In relation to factual mistakes, the tribunal may only interfere with the DBS decision if the decision was based on the mistaken finding of fact. This means that the mistake of fact must be material t
- In determining whether the DBS has made a mistake of fact, the tribunal will consider all the evidence before it and is not confined to the evidence before the decision-maker. The tribunal may hear or
- The tribunal has the power to consider all factual matters other than those relating only to whether or not it is appropriate for an individual to be included in a barred list, which is a matter for t
- The tribunal will not defer to the DBS in factual matters but will give appropriate weight to the DBS’s factual findings in matters that engage its expertise. Matters of specialist judgment relating t
- The starting point for the tribunal’s consideration of factual matters is the DBS decision in the sense that an appellant must demonstrate a mistake of law or fact. However, given that the tribunal ma
- ‘One way, but not the only way, to show a mistake is to call further evidence to show that a different finding should have been made. The mistake does not have to have been one on the evidence before
- ‘On the reasoning in PF, the decision of the DBS was therefore the starting point for the UT’s consideration of the appeal. JHB did not claim that DBS has erred in law. The UT could not exercise any p
- ‘28. I agree with the observation that there is no longer any point of legal principle raised by this appeal which requires determination by the court, but I do not accept that the parties are in agre
- Section 17
- Analysis of Evidence: general
- Document 1 at page 59
- Document 2 p69
- Document 3 p70
- Document 4 p 71
- Document 5 page 29 This is the investigating officer’s report and we make the following observations
- Document 6 p47
- We make the following observations about that material
- Document 7 care records
- We noted the following significant relevant information
- Our conclusions about reliability relating to JG
- Documents gathered in the investigation relating to DL's account Documents 8, material relating to the disciplinary proceedings
- Document 9, p28
- Document 10. Notes of interview of DL by the investigating officer
- DL’s representations to DBS p75
- Document 11, representations from Citizens Advice 25th of February 2021
- Our findings in relation to DL's reliability
- Conclusions