[2024] UKUT 310 (AAC)

Section 2 of the Act requires the DBS to maintain the adults’ barred list. By virtue of section 2, Schedule 3 to the act applies for the purpose of determining whether an individual is included in the list. Section 3 provides that a person is barred from regulated activity relating to vulnerable adults if the person is included in the adults’ barred list. Regulated activity is determined in accordance with section 5 of, and Schedule 4 to, the 2006 Act. Both parties agree the appellant was engaged in regulated activity.

Schedule 3 to the Act provides for inclusion by reference to “relevant conduct” by the person included in the list. The appellant must have been engaged in relevant conduct and regulated activity in the past, present or future. Relevant conduct is described in the Act as conduct which endangers or is likely to endanger a vulnerable adult by harming the vulnerable adult or putting the vulnerable adult at risk of harm.

Section 4 of the Act governs appeals. It provides that an appeal may be made to the Upper Tribunal against a DBS decision only on the grounds that the DBS has made a mistake on any point of law or in any finding of fact which the DBS has made and on which the decision was based. Subsection (3) of section 4 provides that, for the purposes of subsection the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.

Permission was granted by Judge Perez on the papers on 6 April 2024. Her decision was made on the basis that there is a real prospect of success of that the DBS made a mistake of fact in finding-

“That on 13/03/2023 you hit PR, an 86 year old vulnerable adult in your care, 3 times on the leg”.

She noted there was only 1 witness SP who according to the appellant had a reason to lie. She also noted that the appellant had no other witness but the DBS does have a witness whose account has not been tested and whose oral evidence would help the Tribunal.

The DBS did not call any witnesses at the hearing today.