[2025] UKUT 118 (AAC)

In this case most of the grounds of the appeal are alleged mistake of fact, some of which may give rise to an error of law. Relevant here is the summary set out in PF v Disclosure and Barring Service [2020] UKUT 256 (AAC). At para 51. the Tribunal say;

“a)

In those narrow but well-established circumstances inwhich an error of fact may give rise to an error of law, the tribunal has jurisdiction to interfere with a decision of the DBS under section 4(2)(a).

b)

In relation to factual mistakes, the tribunal may only interfere with the DBS decision if the decision was based on the mistaken finding of fact. This means that the mistake of fact must be material to the decision: it must have made a material contribution to the overall decision.

c)

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.

d)

The tribunal has the power to consider all factual matters other than those relating only to whether or not it is appropriate for an individual to be included in a barred list, which is a matter for the DBS (section 4(3)).

e)

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.

f)

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. Matters of specialist judgment relating to the risk to the public which an appellant may pose are likely to engage the DBS’s expertise and will therefore in general be accorded weight.

g)

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.”

In terms of ground a) above, we accept that the situation that the appellant found himself in was clearly very challenging. It was recognised by his company that he should not have been there by himself. He was the last staff member to be sent alone. We accept that it is more likely than not that the appellant was raising his voice when he spoke as ES was hard of hearing. However, the video evidence is clear that the appellant threatened ES.

He threatened ES 4 times. The words he used were;

“Let me tell you. If you do like this again, I will leave you and I’ll go.”

“Now, if you do that I will leave you. I will go home.”

“If you do that I will go. I will leave you alone”.

“If you do like yesterday, I will leave you and I will go home”

The appellant said this referred to an earlier conversation with ES and her daughter where they told him they thought he would not return that night. We fail to see how this makes a difference; it is clear that these were threats and ES believed them as evidenced by her behaviour. Threatening to leave a vulnerable woman by herself is clearly distressing and causes her psychological harm.

It is also clear from the video that the appellant lifted ES without warning and not in line with the expected techniques. He lifted her by pulling her up by her upper arms which could have resulted in physical harm to her. Mr Fisher submitted that the DBS acknowledged one mistake of fact in that the appellant did not drop ES back onto her bed. However, he said that this is immaterial to the decision and the appellant did not support her into bed and she fell onto the bed. We agree.

In terms of the lift, it appears the appellant was trained to lift although only through eLearning. We saw for ourselves that the lift was without warning and that ES was distressed by it. In the letter from the CEO who decided the appeal against the initial panel’s decision to dismiss, the original panel’s experience is outlined as follows;

“A former Director of Adult Social Care and Children’s Services with particular experience around safeguarding and care.

An experienced retired GP of many years standing with considerable knowledge of health and social care and safeguarding around vulnerable adults.

Someone with considerable experience of a number of roles including school Governor and again related knowledge of safeguarding.”

It appears therefore they were experienced and knowledgeable about safeguarding and more likely than not appropriate lift techniques. In support of this is the evidence of the appellant’s manager who said this: “Picking up [ES] like that is simply wrong. There was no attempt to use alternatives, for example the nearby frame. … Limited space does make moving and handling difficult but no excuses for lifting like this.”

We therefore find that the appellant did threaten ES and did lift her suddenly and in an unsafe way. The DBS made no mistake of fact in coming to this conclusion.

In terms of ground b) above the appellant says he did not delay in responding to ES when she called for him – the DBS said he took 3-4 minutes to respond. He said if that were the case he would not have appeared on the 4 minute video. There was only 4 minutes of footage, and he was there for 12 hours the night before and 3 hours the night of the footage. The barring decision letter says: “You are seen to respond to her after a delay of 3 – 4 minutes, then abruptly pick her up without warning and drop her back on the bed.” As said above the DBS have withdrawn the allegation that the appellant dropped ES on her bed. They say he did not support her. The DBS accept that the appellant at 1 min and 8 seconds into the video recording answered her requests for the lights to be turned off. He physically goes towards her at 3.05. Given this we find that he did not delay in assisting ES to any great extent.

We accept the evidence of the appellant that he was running out of options and was thinking about how to respond. Getting out of the bed was not dangerous to ES as the bed was on the floor. We accept that the appellant was in the room and watching ES. However, we find even if this is a mistake of fact it is not material to the decision given our finding that the appellant did threaten the ES and lifted her in an unsafe way.

In terms of ground c) the appellant said he expressed remorse. We do not accept this. He was clear today that the way he lifted ES and the threats he made to her were justified. He said if he was in the same situation he would not do anything differently.

In terms of ground d) that the DBS failed to take into account ES was very challenging, the appellant should not have been there by himself, he was in darkness, he had worked 12 hours with ES the day before, and this was his 5th day of night shift. The appellant says the company should not have let him go by himself; the staff after him were doubled up and still found it challenging. We agree that the evidence is he should not have gone to assist ES alone. This was recognised by his manager when she offered the appellant the shift on the second day. After this incident the company made sure that two carers attended.

However, we do not find the DBS made a mistake of fact or law in coming to the decision despite the challenges the appellant faced. The DBS do recognise that the situation was challenging for the appellant in the decision letter. “The DBS acknowledged your previous track record of five years with no complaints and that you had acted appropriately in a challenging situation with [ES] for 12 hours on the previous night.” The fact that the shift was challenging does not affect the fact that the threats or unsafe lifting occurred. The DBS were entitled to find that the lift and the threats were relevant conduct under Schedule 3 of the SVAA in that the conduct was likely to endanger a vulnerable adult.

In terms of ground e) ES did not complain: the complaint was made by her son with whom the appellant had disagreed the day before. We agree with the DBS that this ground must fail. How the evidence came to the DBS is not relevant to their finding of relevant conduct. Their remit is to safeguard vulnerable adults and the provenance of the evidence in this case is irrelevant unless it affected the credibility of it. As we have the video recording of the threats and the unsafe lift, the credibility is not in question. Even if ES’s son was complaining out of some sort of malice, given the appellant had not agreed with him the day before, it is not his evidence that the DBS relied upon. It was the video. The DBS did not make a mistake of law or fact relying on this evidence.

In terms of ground f) the appellant says that the company paid him money in settlement of his claim before the Employment Tribunal. The agreement is in the bundle. This is not relevant to the DBS who are exercising a safeguarding function. They had objective video evidence of conduct of the appellant on which they relied. They made no mistake of law or fact in barring the appellant on the evidence before them or before us today.

In terms of ground g) the appellant contends that he did not give consent to being recorded and his company did not know he was being recorded. He says because of this the DBS should not have relied on the video evidence. The DBS is not a court of law where admissibility of evidence is proscribed. The video stands as objective evidence and so by relying on it the DBS made no mistake of fact or law. Their function is to protect vulnerable adults and on the evidence before them, there was no mistake of fact or law.

In terms of ground h) the DBS did not ask anything of ES’s daughter or of ES. Whilst that is a fact it would not have changed the video evidence before them and before us today. They were entitled to rely on the evidence in the video.

In terms of ground i) the appellant says no harm was done to ES. It is clear to us that ES was distressed which is psychological harm. It is also clear that given the way she was lifted it is likely that she could have suffered physical harm. Given that the appellant says he would do the same thing again, it is likely that another vulnerable adult would suffer physical or emotional harm if the appellant was not barred. The DBS made no mistake of fact or law on this ground.

In terms of ground j) this is related to proportionality. Given the appellant had an unblemished history and was in challenging circumstances without appropriate support, was the decision of the DBS to include the appellant on the barred list disproportionate? If it was, it is an error of law.

We were fortunate to have the benefit of the decision in KS v Disclosure and Barring Service [2025] UKUT 045 (AAC) which was issued on 7 February 2025. This case was heard by a panel comprising two judges and a specialist member, appointed to decide the proper approach for the Upper Tribunal to take on the issue of proportionality of a decision of the DBS. It is therefore the approach we will follow in deciding whether the decision to include the appellant on the vulnerable adults’ list was proportionate given it is an interference with his Article 8 rights. Article 8 is a qualified right and so interference is permitted in accordance with the law and if it is necessary in a democratic society.

The DBS set out their consideration of proportionality in the final decision letter:

“It is acknowledged that you worked as a support worker for five years with no concerns raised previously. It is also acknowledged that you have all the relevant training to care for a challenging vulnerable adult such as [ES].

However, the DBS currently has no guarantee that this behaviour would not be repeated with a risk that you could move and handle vulnerable adults incorrectly, shout, then verbally abuse them causing both physical and emotional harm.

The DBS have significant concerns about this harmful behaviour carried out within regulated activity as this may be repeated should you continue to be engaged in any regulated activity in the future. The safeguarding concerns raised by this behaviour have been considered by your employer to be serious and resulted in your dismissal.

On balance, a decision to include you in the Adults’ List is the only certain measure that will protect vulnerable adults. This is because the provision of basic safeguarding protection and care is considered fundamental within regulated activity. There are concerns that you may fail to provide the basic care and safeguard the needs of any vulnerable group who relied upon you for protection - therefore it is considered appropriate to include you in the Adults Barred List.

Consideration has been given to the interference into your private life in line with Article 8 of the European Convention on Human Rights 1998 and it is acknowledged that a bar will prevent you from working and extending your career within this chosen profession as a support/care worker working with vulnerable adults, thereby limiting the career options available to you and your ability to earn an income.

However, on balance and in order to safeguard vulnerable groups, it is considered both appropriate and proportionate to include you in the Adults’ Barred List.”

The panel comprising two judges and a specialist member in KS determined that the Upper Tribunal shall apply the proportionality analysis by addressing four issues as formulated by Lord Reed in Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700. We follow their guidance here.

Whether the objective measure is sufficiently important to justify the limitation of a protected right.

Paragraph 58 of KS: “The measure is the barring scheme under SVGA and DBS’s decision under that scheme. Its objective, in the most general terms, is to protect children and vulnerable adults from harm by those entrusted with their care in regulated activity.” In this case the objective of adding the appellant to the Adults’ Barred List is sufficiently important to justify interfering with the appellant’s exercise of his Article 8 Convention right.

whether the measure is rationally connected to the objective

The DBS’s decision under the barring scheme prohibits the appellant from engaging in regulated activity. This is rationally connected to the barring scheme.

whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective.

As in KS there are only three options open to the DBS. “It may: (a) include the person in one of the lists, but not the other;(b) include the person in both lists; or (c) decide not to include the person in either list. It has no power to limit the extent to which the bar applies. It cannot apply a temporary bar while it investigates the case or limit the scope of the bar to specified types of regulated activity. Nor can it permit a person to engage in regulated activity but subject to conditions.” (para 61 KS).

In this case if the appellant could have been subject to conditions, for example, only working with another carer for a specified period and attending training on lifting, the imposition of a barring order may have been disproportionate. However, given those options are not available, the only option for the DBS was to bar the appellant from working in regulated activity with vulnerable adults.

whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter

The effect that the barring order has on the appellant is significant. This may have been disproportionate given the appellant’s impeccable history, the fact that he was not supported by his company, that he had worked five night shifts in a row and ES was particularly challenging to care for, if he had showed some remorse and willingness to address the behaviour. However, when asked in cross examination whether he would do anything differently were he to be faced with the same situation again, he said firmly that he would not. He clearly believed that how he behaved to ES did not cause or was likely to cause her harm. It clearly did. Given this, and the harm he could cause to another vulnerable adult should he behave in the same way, barring the appellant from regulated activity with vulnerable adults is proportionate and the only way under the legislation to achieve the objective.