[2024] UKUT 391 (AAC)

Mr Serr noted that the appeal grounds were drafted before the DBS’s Barring Decision Summary Process Document (‘BDP’) was disclosed. The BDP shows that the representations were fully considered.

The DBS received LADO meeting notes for June and July 2021, D[] Children’s Services Trust notes for August 2021 a reviewing officer’s report as part of a foster care review and AVS’s own statements / representations before making its decision.

Therefore, he submitted that the DBS had the evidence of highly specialised experts in their fields. The attendees for the June and July LADO meetings and the strategy meeting are listed as social work team managers, advances partitioners from the fostering team, social workers independent reviewing officers and the police [36/46/55].

The evidence is said to amount by AVS to “multiple anonymous hearsay” but Mr Serr submitted that the written evidence they gave or relied upon is credible and reliable. Mr Serr accepted that there is some hearsay evidence relied upon by the DBS but there is also a substantial amount of direct evidence. There is no rule against relying on hearsay by the DBS. Hearsay evidence and anonymous evidence commonly makes up information that the DBS relies upon. The standard is of course the civil not criminal standard of proof.

He addressed the five findings of relevant conduct made by the DBS:

In respect of the first finding, the failure of AVS to attend to DM while he was in hospital and rather to hand the responsibility over to a social worker was a serious breach of his foster care duties and led to the child being removed from his care. The LADO notes evidence social services concern as to the harm that this did or could do to DM and highly vulnerable child. This was a particularly difficult time for DM, a time when he needed his carer present and AVS prioritised his own needs and requirements over DM, a child with physical and mental health problems whose mental health breakdown had led to an admission to hospital and to the input of the mental health team. While AVS largely seeks to blame others and takes little responsibility for his action he does accept at least “more could have been done to support DM” [111-112].

The issue in respect of the second finding on contact is very clear. AVS was given an instruction by a social worker on 25 May 2021 on behalf of children services not to contact DM. That instruction was ignored. There is evidence that AVS in fact would continue to ignore instructions not to contact or continue contact with DM. As the BDP states “There was an occasion on 9 August 2021 where DM arrived at AVS’s work, and AVS was advised if this were to happen again then he was to ask DM to leave immediately, however that he did not agree with this course of action”-[213]. This evidences AVS’s inability to adhere to clear instructions and guidance being provided by children services. Such a failure is bound to or at least likely to lead to harm to a child or a vulnerable adult if replicated. Child Services concerns go further and reflect undue influence and coercion on DM by AVS [58-59].

In respect of the third finding, there is clear evidence from the email sent from PS and the LADO notes that child services were very concerned about the morning regime of DM in particular the fact that he was being taken to work with AVS, was getting up much earlier than was required and it was causing him fatigue during the day. It needs to be borne in mind that DM was vulnerable and had significant physical and mental health problems. The fact that he was being taken to work by AVS was further evidence arguably of AVS prioritising his own needs over those of DM.

In respect of the fourth finding, there is no doubt it seems even on his own admission that AVS should not have allowed DM to have medication the prescription for which had expired. AVS should have taken it off DM. He did not. This was a failure on AVS’s part to properly store and dispose of medication. He admits to poor record-keeping. Leaving medication such as this that had expired on the person who had mental and physical health difficulties was an obvious and serious risk. As he states, “I was not aware of a prescription expiry and have only recently come to notice that the course of tablets should have been completed by a certain date (taken prophylactic rather than as required). I also recognise that whilst under significant pressure at this time, I would have been able to keep better records in the style of the fostering organisation should I have my time again”-[114]. The risk is confirmed in notes in the referral by LADO to the DBS at [18] by a nurse RW.

In respect of the fifth finding, the LADO notes in respect of the pornography incident in 2018 would appear clear in that the allegation was against the owner of the business: ‘A’. The notes of the incident are that “Three Sixth Form girls were on work placement at A[] Limited on C[] Road (a graphics design business) and have alleged that the owner has made inappropriate comments towards them and is in possession of a firearm on the premises. Please see attached statements from the girls and image of firearm”-[151. There has been no factual mistake the allegation was against AVS and not anyone else. AVS’s assertion that it was in fact a co-worker is fanciful. He was the sole director of the business at the time [221].