[2025] UKUT 225 (AAC)

In her closing submissions, Ms Bayley has grouped the error of law grounds of appeal into the following:

We have decided the DBS made the following errors of law in its Barring Decision, and that they were material to its Barring Decision.

The DBS decided JL had contracted thrush on or around 11 September 2021 and that her symptoms of rubbing were to do with thrush symptoms. However, for the reasons set out above the DBS had insufficient evidence before it to properly be able to conclude that JL had a diagnosis of thrush, and that the only cause of her rubbing behaviours was thrush. We do not consider that the CMS documentation provided by VC has resolved either of those issues. This does not confirm JL had a diagnosis of thrush or when it was contracted. Furthermore, the DBS did not obtain evidence about where JL’s diagnosed ringworm was located, in order to rule it out as a potential cause of JL’s rubbing behaviours. The DBS therefore had insufficient evidence before it on which to reach the essential conclusions that it reached as part of allegation 1.

The DBS recorded that AA’s position was that he was absent from work on sick leave from 26 September 2021 to 10 October 2021, but did not evaluate this evidence adequately before concluding that AA uploaded the ABCD document on 29 September 2021. Mr Webster argues in his submissions that the DBS concluded that it was, in effect, a moot point and refers to page 296 of the DBS bundle). However, the DBS has not provided any reasoning at page 296 (or elsewhere in the Barring Decision Summary) to explain that it considered this point moot, or why it did so. Instead, the DBS recorded, without providing any further analysis about it: “However, [AA’s] solicitors have noted that [AA] was off sick on that date and that the documentation was the responsibility of the support workers and not [AA]”.

Mr Webster argues that the DBS does not have to engage with every issue raised by the Appellant, and that Khakh v Independent Safeguarding Authority [2013] EWCA Civ 1341 confirms that it is enough that intelligible reasons are stated sufficient to enable an appellant to know why his representations were to no avail. However, in our assessment, Khakh does not rescue the failure by the DBS to provide any reasoning about its position on AA’s argument that he was on sick leave when the ABCD form was uploaded and therefore did not upload it.

The DBS’s conclusion that AA did not mention sharing JL’s rubbing behaviour with her GP in his previous meetings with VC, fails to address what AA said in the meeting 08 November 2021. It represents an error of law, because it confirms the DBS failed to evaluate the documentary evidence correctly. The DBS has relied on that conclusion to support its assessment that AA’s account was lacking in credibility because the DBS concluded he had not mentioned it earlier. That assessment is undermined by the failure to evaluate the evidence correctly.

The DBS’s rejection of AA’s account of events on 12 December 2021 on the basis that LB and VW’s accounts were consistent with, and corroborated each other, and therefore were more credible than AA’s account. The DBS did not address the inconsistencies between LB’s and VW’s accounts, in particular, about who telephoned whom, before concluding they were corroborative of each other. This is contrasted with a more critical eye that the DBS cast over AA’s account, where the DBS’s assessment was that AA’s account was said to lack the detail provided by LB and VW, although the timings matched, the arrangements for cover and resolving the issue, did not. The DBS’s failure to resolve the conflict in evidence between the evidence of LB and VW affected its evaluation of the evidence overall, and we assessed it formed part of the DBS’s rejection of AA’s evidence. It amounted to an error of law.

Given the above identified mistakes of fact and errors of law, we do not consider it necessary to consider the remainder of the errors of law asserted on behalf of the Appellant.