[2025] UKUT 079 (AAC)

Mrs Aziz invited the Upper Tribunal to give considerable weight to the Appellant’s oral evidence at the hearing, at which her evidence was tested under cross-examination and, she said, stood up. By contrast, the evidence of witnesses OB and JN, upon which the DBS relied in reaching its findings of fact has not been tested, and should be given less weight.

The Appellant’s case is that each of the findings summarised in paragraph 17 above was mistaken and, because the DBS based the Barring Decision on those mistaken findings, the Barring Decision was wrong, the appeal should be allowed, and the interests of justice require the Upper Tribunal to direct that the Appellant’s name be removed from the Adults’ Barred List. The Appellant’s case was that it was her colleague JN who had caused harm, while she had done no wrong and had done her best to assist MW.

Mrs Aziz also argued that irregularities in the way that the Appellant’s employer had dealt with matters, failing to give the Appellant verbal or written warnings before referring her to the DBS, resulted to procedural unfairness. She argued that the Barring Decision was also disproportionate.

The DBS resists the appeal, arguing that it was entitled to make the findings that it did on the balance of probabilities based on the evidence before it. The DBS says it was entitled to give weight to the evidence of the Appellant’s colleague JN, who had admitted wrongdoing himself and so had no apparent motive to give a false account of the events of 15 June 2023, and was entitled to give less weight to the Appellant’s evidence, given that she had given inconsistent accounts in her initial interview with the investigating manager, in her subsequent written representations to the DBS, and before the Upper Tribunal.

Mr Fullbrook, for the DBS, argued that nothing the Appellant said in her evidence at the hearing before the Upper Tribunal indicates that any of its findings was mistaken. In the alternative, he argued that even if the Upper Tribunal is persuaded that the DBS was mistaken to find that the Appellant had herself transferred MW back to her bed following her fall, such a mistake would not have been material to the Barring Decision because the Appellant’s failure to report MW’s fall promptly and having misled the nurse in charge about the events of that night would by themselves have caused the DBS to place her name on the Adults’ Barred List.