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The Appellant’s evidence
The Appellant’s evidence
The Appellant denied the allegations of relevant conduct and material facts found in the Final Decision Letter in material and significant respects. In terms of written evidence, the Appellant relied upon his notice of appeal and the representations of fact made together with his witness statement. He supplemented this with oral evidence of fact given during the appeal hearing. The Appellant gave evidence in chief at length supplementing his witness statement and was cross examined by Mr Serr in relation to all of his evidence. The Appellant’s factual representations and evidence denying many of the allegations, were in similar terms to the grounds contained in the notice of appeal dated 16 September 2022.
Mr Serr suggested that none of the findings of relevant conduct contained mistakes of fact and there was no mistake of fact in any of the matter relied upon in the DBS barring decision. He put the relevant pieces of documentary evidence to the Appellant and suggested his account was neither reliable nor credible.
As noted below, the Appellant’s oral evidence was largely consistent with the factual representations he made to the DBS in several sets of submissions, in the notice of appeal and his witness statement. The evidence that was before the DBS when it made its Decision obviously did not include all the factual representations and evidence we received from the Appellant during the hearing.
In summary, we have come to the conclusion and find that the Appellant’s written and oral evidence was largely consistent, reliable and credible for the reasons we give below. We give reasons where we have not accepted certain parts of it.
We have examined all the evidence in the case with care, both that which was before the DBS and that provided by the Appellant as part of his appeal (most of which was not available to the DBS at the time it made its Decision).
We make findings of fact on the balance of probabilities as set out below. In light of these, we consider whether the DBS made mistakes of fact in accordance with the approach set out in PF v DBS and DBS v RI. The burden of proof remained on the DBS when establishing the facts and making its findings of relevant conduct in its barring decision. Thereafter on the appeal to the UT, the burden was on the Appellant to establish a mistake of fact (see PF at [51]):
‘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 may consider factual matters for itself, the starting point may not determine the outcome of the appeal. The starting point is likely to make no practical difference in those cases in which the tribunal receives evidence that was not before the decision-maker.’
Furthermore, the UT stated in PF:
‘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 oral evidence for this purpose…. In reaching its own factual findings, the tribunal is able to make findings based directly on the evidence and to draw inferences from the evidence before it...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.’
We make findings of fact in relation to the evidence and give our reasons in the section below. We make findings of fact – both of primary facts and secondary facts (inferences from primary fact). However, it is not within our jurisdiction when considering whether there have been mistakes of fact to make our own evaluative judgments (for example, what was reasonable for the Appellant to do or whether there would be a risk of repetition). The proper evaluative judgements which should be made based upon the primary facts found are a matter for the DBS. we would not interfere unless such judgments are based upon mistakes of primary fact or are irrational (contain a mistake of law).
- Heading
- The decision of the Upper Tribunal is to allow the appeal of the Appellant
- Rule 14 Anonymity Orders and directions
- The Background
- "Based on the enclosed information, it appears, on the balance of probabilities, that
- Fostering review meeting minutes, 27 January 2022
- Character references
- The Respondent’s barring decision dated 20 June 2022
- Findings of Relevant Conduct
- The material relied upon by the DBS at the time of barring in support of the findings of relevant conduct
- Contacting DM between 25/5/21 and 12/821
- Waking DM early and bringing him to work
- Failing to dispose of medication with which DM then overdosed 6/6/21
- Showing pornography et al in 2018
- Failed to sit at hospital with [DM] on the morning of 24/25 May 2021, as alleged or at all
- Failed to dispose of medication which DM no longer required, as alleged or at all
- Shared with DM his wishes for the outcome of the D[] Children's Services Trust investigation Caused DM physical and/or emotional harm
- Came to conclusions based on inferences that it was not entitled to draw from the evidence Came to a barring decision that was, in all the circumstances, disproportionate
- The decision to include the Appellant on the Children's Barred List was, in all the circumstances, disproportionate Law
- it is satisfied that the person has engaged in relevant conduct, and
- it is satisfied that it is appropriate to include the person in the list
- on any point of law
- If the [ Upper] Tribunal remits a matter to [DBS] under subsection (6)(b)–
- a. “on any point of law” (section 4(2)(a) of the Act)
- remit the matter to DBS for a new decision
- DBS’s submissions
- No material mistake of fact
- The decision was disproportionate
- Transferability/Proportionality
- Conclusions on the Appeal
- Discussion: Findings of Fact and Analysis of grounds of appeal
- The Appellant’s evidence
- Post Hearing application for the admission of late evidence
- The Appellant’s representations from 3 June 2021 and assessment of his reliability
- Ground 1
- Finding 2: On dates between 25 May 2021 and 12 August 2021 you continued to contact DM, aged 15, despite having being [sic] re-quested not to for the wellbeing of DM following DM being removed from yo
- Finding 3: On dates between 20 August 2020 and 24 May 2021, you woke DM, aged 15, at 5.30 a.m. on mornings before school, bringing him to work with you and having him complete work/school work prior t
- Finding 4: On a date prior to 25 May 2021 you failed to dispose of medication which DM, aged 15, no longer required, leaving remaining medication in DM's possession who subsequently took an overdose o
- Finding 5: On a date in 2018, you showed a pornographic image of oral sex that you had as your computer screensaver, showed an air gun and pellets in your drawer, and repeatedly asked three school gir
- Conclusions on mistakes of fact in five findings of relevant conduct
- Erroneous Inferences – Appellant submissions
- Remedy – Remittal to the DBS pursuant to section 4(6) (b) & 7 of the Act
- Mistake of Law - Proportionality
- Appellant’s submissions on Proportionality
- Discussion
- Conclusions