[2025] UKUT 079 (AAC)

Although the grounds for which permission was sought and granted related only to arguments about mistake of fact, Mrs Aziz sought to argue that the Barring Decision was marred by mistakes of law. We deal with those arguments briefly for the sake of completeness.

The first argument was that the Appellant’s employer had acted unfairly by failing to give the Appellant verbal or written warnings before referring her to the DBS. This argument is misconceived, because it doesn’t allege any unfairness in the decision making of the DBS, and in any event the Appellant’s employer was under an obligation to make a prompt referral to the DBS so that the DBS could assess the evidence for itself. The DBS gave the Appellant an opportunity to make representations, which the Appellant duly did (see pages [77]-[83] of the appeal bundle). It is clear from the DBS’s ‘Barring Decision Summary’ document (see pages [90]-[110]) that the DBS considered what the Appellant said in her representations and it explained how it factored that into its decision making.

It was argued further that the DBS failed to consider the Appellant’s previously unblemished career working with vulnerable adults, or made a decision that was disproportionate, given the profound impact that a decision to place her name on the Adults’ Barred List would have on the Appellant in terms of preventing her from pursuing her vocation as a carer and depriving her of her livelihood. However, the Appellant did not make any assertions about having a “previously unblemished career” when she sent her written representations to the DBS, let alone provide any evidence of it. As such the DBS can’t be criticised for failing to take her record into account. In any event, given the seriousness of the findings made against her, barring would still have been open to the DBS even in the context of a pristine prior work record. As to proportionality, we performed our own assessment of proportionality (in line with the recent decision of a Presidential Panel of the Upper Tribunal in KS v DBS [2025] UKUT 45 (AAC)).

While we acknowledge that the impact of barring on the Appellant was likely to be considerable, the potential for harm should there be a repetition of the ‘relevant conduct’ for which she was responsible in this case was great. MW was a very vulnerable patient and, due to her dementia, she was unable to communicate the pain that she must have suffered (given the bruising to her face and legs that gradually became apparent) or to alert staff to the fact that she had fallen. There was a very real risk that she could have sustained serious injuries in the fall. It is apparent from her patient notes in the appeal bundle that she was still in hospital 13 days after the incident (see page [66] of the appeal bundle). In her evidence before the Upper Tribunal the Appellant sought to evade responsibility for patient MW, notwithstanding that she was jointly charged with providing her with personal care when she witnessed an incident that “panicked” her because it indicated that she could have suffered a serious injury. Rather than act in accordance with her training to alert others to the situation and to allow MW to be properly assessed and to receive appropriate treatment, the Appellant sought to conceal the incident. In her oral evidence the Appellant insisted she had done nothing wrong. This indicates a striking lack of insight and a risk that she might act similarly should she be permitted to work with vulnerable adults and should similar circumstances arise in the future. As such, we are not satisfied that the Barring Decision was disproportionate.

The other criticisms that Mrs Aziz makes of the Barring Decision in her skeleton argument, while couched in the language of error of law, amount in substance to a simple disagreement with the DBS’s assessment of the evidence, with the ultimate outcome of the barring process, and with the adequacy of the DBS’s reasons for the Barring Decision. We are not persuaded that the Barring Decision involves any material mistake of law and we are satisfied that it is explained with adequate clarity in the Final Decision Letter and the ‘Barring Decision Summary’.