[2024] UKUT 391 (AAC)

Ms Bayley noted that proportionality was addressed in the Appellant’s letter of representations [para 70 to 77] and the Notice and Grounds of Appeal [p202, para 61 to 63] and further submissions on behalf of the Appellant (now Appellant) [p275-276].

She submitted that the BDP demonstrates a superficial and inadequate assessment of necessity and proportionality was applied. The only factors considered to relate to the impact of a bar upon the Appellant at proportionality stage are the potential impact on the Appellant's mental health, stigma and being prevented from carrying on regulated activity.

She contended that assessing proportionality requires the balancing of the seriousness of the impact on the Appellant’s rights against the possible seriousness of the consequences to vulnerable adults and children were he not to be included in the lists. No assessment was made by the Respondent of the likely seriousness of the consequences to vulnerable adults and children of not including the Appellant in the barred lists, which required an assessment of both the likelihood of further incidents arising and of the likely seriousness of such incidents.

Ms Bayley argued that the Respondent must have regard to the principles of proportionality in all its findings. In this case, that means that the bar should be no more than necessary to meet the legitimate aim of safeguarding vulnerable groups. Assessing necessity requires consideration of other, less drastic, action that might reasonably be expected to be taken, not necessarily by the Respondent, to eliminate or reduce a risk. The Respondent was aware that DM was removed from the Appellant's care and that he was deregistered from fostering. It was unnecessary for the Appellant to further be included in the barred lists.

She submitted that the allegations relate very specifically to the Appellant's parenting skills and his ability to remain as a foster carer. It is unlikely that the Appellant would apply to foster again, however if he did, there would be a robust checking system which undoubtedly would reveal the concerns raised by D[] Children's Services Trust. The decision to bar was, in all the circumstances, disproportionate.