[2024] UKUT 389 (AAC)

On the 7 March 2023, the Tribunal received an application for permission to appeal from the Appellant, seeking permission to challenge the decision of the DBS dated 22 January 2023 (wrongly dated on the final decision letter as 22 January 2022) to place her name on the Adults’ Barred List pursuant to paragraph 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (“the Act”).

The application was made on two grounds relating to two separate incidents relating to the same service user. The first incident occurred on the 26 July 2021. The second on the 15 November 2021.

Permission was granted to appeal on the second ground, against the decision that the Appellant had behaved inappropriately on the 15 November 2021 by failing to follow a Service User’s risk assessment and risk management support plan by allowing the Service User to remain in his flat listening to a CD, when it was known that the Service User had a tendency to self-harm using any tools available to him. In the event, the Service User broke the CD and used it to self-harm.

The basis for the decision in relation to the second incident, as set out in the DBS decision letter was as follows: “We are satisfied a barring decision is appropriate. This is because it has been established that on two occasions you behaved inappropriately and not the way you would be expected to behave in your role when you have not followed [the service user’s] support plan, risk assessment and protocols in relation to his self-harming. It has been determined that you think you know best as despite being aware of this you allowed him to be alone in his flat with a CD after he asked you to leave, he then broke the CD and used it to injure is arm. You justified this by saying he seemed calm and settled before and had been left alone since previous incidents, however this would not justify your behaviour.”

At the hearing, the Tribunal heard oral evidence from both the Appellant and Ms B, a former colleague of the Appellant’s, who worked with her at the time of the incident. Both were team leaders in the care home where the incidents happened. The only formal evidence before the DBS from Ms B were short notes of an investigation interview by her employer regarding the incident which took place on the 15 November 2022.

At the start of the hearing, Ms B agreed that the notes of interview could be used as her evidence in chief and Mr Wilkinson could cross examine her on the contents and her recollection of the incident. Ms B had been under the impression that she had been called as a character witness but agreed to answering questions about the incident to the best of her recollection at the hearing. She did not have a copy of the tribunal bundle or the notes of the investigation meeting held on the 17 November 2021 setting out her evidence as relied upon by the DBS. Time was allowed for Ms B to read the documentary evidence relating to the investigation before she gave evidence.