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Jurisdiction of the Upper Tribunal
Jurisdiction of the Upper Tribunal
Section 4(2) of the Act confers a right of appeal to the Upper Tribunal against a decision by DBS under paragraph 3 of Schedule 3 (amongst other provisions) only on grounds that DBS has made a mistake
on any point of law;
in any finding of fact on which the decision was based.
The Act says that “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” (section 4(3)).
Permission to appeal was given by the Upper Tribunal (Judge Citron) in a decision issued on 16 April 2024. The permission decision stated that
DBS’s factual finding was principally based on the written statement of BG (the only other support worker present at the incident) on page 34 of the Upper Tribunal bundle
from what SCK said at the “permission” hearing on 3 April 2024 (and consistent with his written account on page 39 of the Upper Tribunal bundle), SCK’s account of what happened differed materially from that given by BG; in particular, SCK’s account was that
he was, as part of putting a “pad” on an uncooperative service user with one hand, holding MDC’s hands to MDC’s chest with his other hand, to try to stop the service user biting him
he did not “smack” MDC (with “excessive force” or otherwise), but rather that, in reaction to MDC biting his hand, he moved his hand rapidly out of the way and, in so doing, inadvertently hit the side of MDC’s face with his hand; and
in response to MDC calling him “a bastard”, SCK did not call the service user’s son “a bastard”.
SCK’s evidence would also be that when, as recorded on page 35 of the Upper Tribunal bundle, SCK’s manager, “FO”, said that he (SCK) had said on “Saturday” (the day after the incident) that he (SCK) had “hit” MDC, SCK had been using the word “hit” in the sense of unintentional, rather than intentional, physical contact (and that SCK did not always pick up the nuance of English words, as he was not a native speaker).
it was realistically arguable that SCK’s oral evidence, which was not available to DBS, given at a substantive hearing of the Upper Tribunal, could, if deemed credible, provide information sufficient to show that DBS made material mistakes in the findings of fact on which its decision was based.
- Heading
- The decision of the Upper Tribunal is to dismiss the appeal. The decision of the Respondent made on 19 June 2023 (DBS reference DBS6191 01002574580 ) to include SCK in the adults’ barred list is confi
- DBS’s decision
- Jurisdiction of the Upper Tribunal
- Documentary evidence in the Upper Tribunal bundle
- The Upper Tribunal hearing
- Review of the evidence, our findings of fact, and conclusions on whether DBS made mistakes in its factual findings
- No mistake on point of law
- Conclusions