[2025] UKUT 86 (AAC)

The appellant’s argument on ground 5 was that the decision was disproportionate to the suffering that she has endured as a result of having no income and in particular given the length of time that she has worked without proven incident in the care sector and the impact on her as an older person who may struggle to secure alternative employment at a late stage in her career.

Applying the approach laid out in KS v DBS [2025] UKUT 045 (AAC), we have considered for ourselves, giving due weight to the views of DBS, whether the decision is disproportionate in the light of the evidence that we have before us. That evidence has in fact been limited in this case as a result of the appeal focusing on the procedural issues we have dealt with above. The particular factors as to the appellant’s age, employment history and career prospects that Judge Stout at the permission stage considered it arguable DBS had left out of account, we are now satisfied were not left out of account. These factors are dealt with in the Barring Decision Process Document, and we accept DBS’s submission that these matters were not left out of account. We recognise, also, that there was a limit to what DBS could take into account as regards these factors given that the appellant had not made substantive representations about the decision so that DBS had little to go on.

While we can see that it is possible that DBS may, having considered the appellant’s representations, conclude that barring is disproportionate in this case, we ourselves are satisfied that the decision as it stands does not constitute an unlawful interference with the appellant’s rights under Article 8 of the European Convention on Human Rights. Applying KS, we are satisfied that the objective of protecting children and vulnerable adults is sufficiently important to justify limiting the appellant’s fundamental rights, and that the barring decision in this case is rationally connected to the objective. We are satisfied that the appellant poses some risk to vulnerable adults and children, based on the appellant’s conduct on the “Shouting” video, which shows a loss of temper, and verbal and emotional abuse directed towards the VA, sustained over some minutes, coupled with some physical aggression in knocking the door into the chair. We respect DBS’s view that this conduct is sufficient to justify barring. We accept that there is no less intrusive measure that could have been used without unacceptably compromising achievement of the objective as no other measure would prevent the appellant from being employed in any context with children or vulnerable adults. We agree with DBS that, on the evidence as it stood at the date of DBS’s decision, her age, past employment history and impact on her of the decision are not sufficient to outweigh the public interest in the protection of vulnerable children and adults. The position may now be different, but on the basis of the circumstances as they were at the time of the decision, it was not unlawful.