[2025] UKUT 86 (AAC)

This section includes the findings of fact that we have made in the light of the documentary and oral evidence we have received at this hearing. Our findings of fact are made on the balance of probabilities. If we do not mention a fact that was in evidence, it does not mean we have not taken it into account.

The appellant is a 64-year-old woman who has worked in the care sector for over 18 years with no previous proven allegations against her prior to the matters that led the DBS to make the decision that she challenges in these proceedings.

In 2020 the appellant was working as a Live-In Carer, employed by an organisation we will refer to as FOH, providing care to an elderly person who has mild cognitive impairment and left side weakness due to a stroke. In the language of the SVGA 2006 the elderly person was a “vulnerable adult” and in this decision we refer to her as “VA”.

In August 2020 the appellant was dismissed from her role with FOH for what was described in the dismissal letter as (sic) “threatening and abuse language being used towards [VA] in your care of 05/07/2020” and “CCTV footage showing you being verbally aggressive to [VA]”. This decision was made following a disciplinary process which included the appellant being suspended from work, invited to an investigation meeting, providing a statement, attending an investigatory meeting and a disciplinary meeting. The documentation from FOH indicates that the appellant’s position during the disciplinary process was that she accepted she had behaved as alleged, but argued that she had been provoked by VA. We note that she did not offer this explanation in her statement of 27 July 2020, but in the subsequent investigation and disciplinary meetings she alleged that VA had subjected her to serious verbal racial abuse.

There was CCTV footage of the incidents which the appellant was shown at least parts of as part of the disciplinary process and which Judge Stout was able to show her at the permission hearing in this case (see above). At this hearing, there were some difficulties in playing the CCTV files, but the appellant confirmed in oral evidence that Judge Stout’s description in the grant of permission to appeal (set out above) of what can be seen and heard on the CCTV footage was accurate.

Following the appellant’s dismissal, FOH referred her case to DBS.

On 7 June 2021 DBS sent the appellant a “Minded to Bar” letter and gave her until 4 August 2021 to respond to the allegations. The Minded to Bar letter set out essentially the matters that later appeared in the final decision letter (see below). The letter stated that it enclosed in Annex A copies of all the information relied upon in reaching this stage of the decision-making process. Regarding the CCTV footage, it stated that as she had already seen this as part of the disciplinary process a copy had not been provided, but that if she wished to see a copy of the footage, arrangements could be made for her to view it, or an independent transcript could be sent.

The Minded to Bar letter was sent to the appellant’s home address. According to the appellant, as she works as a live-in carer, she was not at home when it arrived. She says she only received the letter on 30 July 2021, when she returned home for the first time since May 2021, having been away for work in the interim. By that time, the deadline for response was four days away.

Although the DBS’s Barring Decision Process Document (the BDP) includes a note that “Royal Mail Track and Trace has … confirmed that the [Minded to Bar] Letter and bundle dated 7 June 2021 was signed for by SM on 9 June 2021”, DBS has produced no witness to speak to that evidence, nor any documentary record from Track and Trace itself, and counsel for DBS did not at the Upper Tribunal hearing challenge the appellant’s evidence in her witness statement that she only received the Minded to Bar letter on 30 July 2021. In those circumstances, we accept the appellant’s evidence of when the Minded to Bar letter came to her personal attention. In deciding to accept the appellant’s evidence in this respect, we took into account that, so far as concerns the matters on which she was questioned at this hearing, she proved to be a broadly reliable narrator (albeit one whose mode of speaking made following her evidence difficult at times). (See further below.)

As noted, the Minded to Bar letter stated that it included Annex A. However, the appellant maintains that it did not. We return to this point below too.

The appellant considered that in order to prepare her defence she needed to request documents and other evidence from FOH and obtain statements from her own witnesses. She felt that she needed to see the CCTV footage and other documents that DBS had relied on.

She telephoned DBS on 30 July 2021 to request more time, explaining that she had been away from home and needed more time to respond. She says the DBS representative to whom she spoke on the phone said something like, “No I’m sorry we can’t extend. Your representations have to be sent before the due date.” We accept her evidence to this effect, which has not been challenged by DBS.

By letter dated 3 August 2021, the appellant repeated her request for an extension of time. This letter was drafted for her by someone with legal experience to whom she had gone for advice. In this letter, she argued that her rights under Article 6 and 8 of the ECHR were engaged by DBS’s processes. She repeated her explanation for why she needed more time and also informed DBS that it had not sent her the CCTV evidence and other documents relied on by DBS. She pointed out that the Minded to Bar letter had stated, “If you are unable to provide written representations, please contact us to discuss alternative options” such as making oral representations, but that this option had not been given to her when she called on 30 July 2021.

The appellant was questioned at length at this hearing about whether or not and when she had received Annex A. Although the appellant at times appeared to become confused about the chronology (understandably so, given the passage of time), she seemed to us to have a firm recollection of not having the documents when she went to see the legal advisor, but having been sent them for the first time after she had asked for them in the letter of 3 August 2021. This was surprising to the panel because if she had been sent what was (so far as DBS is concerned) a ‘second’ copy of Annex A, we would have expected to see that mentioned in the documents that were before us. As it was, neither the appellant or DBS had mentioned it before the hearing. As such, we as a panel had provisionally formed the view during her oral evidence that the appellant was just confused about when she received the documents, but in closing submissions counsel for DBS then said that in fact he had checked and it was accepted by DBS (contrary to the impression given by some of his questions to the appellant during oral evidence) that DBS had sent out a ‘second’ copy of Annex A when the appellant asked for the documents. This led the panel to re-evaluate the appellant’s evidence on this point, which now appeared to be reliable. This, together with the documentary evidence of what the appellant wrote and said to DBS at the time, leads us to accept that (whether or not DBS sent Annex A with the Minded to Bar letter on 7 June 2021), the appellant herself did not knowingly receive either the letter or Annex A at that time, but saw the letter for the first time on 30 July 2021 and Annex A for the first time when it was sent by DBS sometime after her letter of 3 August 2021.

DBS responded to the appellant’s letter of 3 August 2021 by letter of 17 August 2021. DBS’s letter states as follows:-

Why we are writing to you

Thank you for your letter received 5 August 2021 asking us to extend the time limit to make representations. Unfortunately, we cannot agree to your request.

What happens next

As the date for submitting your representations (4 August 2021), has already passed we will now assess the information alongside all of the other information we have received and make a final decision.

On 24 August 2021 DBS issued a decision letter informing the appellant that it had decided to place her on both the children’s and adult’s barred lists. The letter explained that DBS was satisfied on the balance of probabilities that on 15 May 2020 the appellant verbally, emotionally and physically abused VA by:

The letter explained that DBS was satisfied that the appellant had engaged in relevant conduct in relation to vulnerable adults, specifically conduct which endangered a vulnerable adult or was likely to endanger a vulnerable adult.

DBS explained that it was satisfied that if that conduct was repeated against or in relation to a child it would endanger that child or would be likely to endanger him or her.

DBS stated that it was satisfied that the appellant had engaged in regulated activity with children and/or vulnerable adults because she worked as a Live In Carer with FOH and had previously applied for the role of Child and Adult Workforce Healthcare Assistant with United Kingdom Home Care Association Limited.

DBS acknowledged that placing her on the adults’ and children’s barred lists would prevent her from working in her chosen career and exercising her skills and that this was likely to have a significant impact on her financial circumstances and ability to earn an income and was a significant interference with her rights under Article 8 of the ECHR.

However, DBS concluded that the appellant posed an unacceptable risk of future harm to vulnerable adults and children that could not sufficiently be safeguarded otherwise than by inclusion on the lists with effect from 23 August 2021.

DBS explained that inclusion on the lists would last indefinitely, but that she could apply for a review in 10 years’ time, i.e. from 23 August 2031.

DBS explained her right to appeal to this Tribunal and also notified her that she could apply to make representations out of time.

The appellant then requested to make representations out of time, on 10 September 2021, attaching a copy of her 3 August 2021 letter and explaining again that she wished to have an opportunity to comment on the evidence relied on by DBS and to submit details of the racial abuse to which she was subjected by her “alleged victim”.

By letter of 29 September 2021 DBS refused the request stating:

We are unable to grant permission for this request as you had opportunity to submit representations at the time but did not do so.

By letter dated 7 October 2021, the appellant then made an application for a review of the decision.

This application was acknowledged by DBS in a letter dated 2 November 2021, who provided her with a form to complete and information about the grounds on which a review may be sought.

The appellant did not make a review application.