[2025] UKUT 117 (AAC)

Proportionality

If we are right about Ground (1) above then that is sufficient to dispose of the appeal. We recognise, however, that we may be wrong about how the legislation applies to cases like this. It may be that, for the purposes of deciding whether conduct is relevant conduct within paragraph 10(1)(b), it is only necessary to consider whether, if Child A had been a vulnerable adult, the appellant’s conduct would have endangered that vulnerable adult in the same way. That is not what the legislation actually says, hence our approaching Ground (1) as we did. However, if we were wrong about that, then we accept that, if Child A had been a vulnerable adult, the appellant’s conduct in refusing to leave her abusive partner would have presented much the same risk to the vulnerable adult as to Child A. Further, although the appellant does not have a vulnerable adult in her family at present, we accept that the definition of “relevant conduct” may require only that consideration be given to what the situation would be if, at any point whether now or in the distant future, a vulnerable adult were to be in the appellant’s care at home as a member of her family. If so, we accept that vulnerable adult would be endangered if the appellant repeated her conduct.

If that is how the legislation is to be approached, then we consider that many of the points we have made when considering Ground (1) become relevant instead in relation to Ground (2) and the question of whether it is proportionate to bar the appellant.

In accordance with the legal principles we have set out above, the question of whether a barring decision is a proportionate interference with the appellant’s civil right to practice a profession, and her Article 8 rights, is a matter for this panel to decide, giving due weight to the view and reasoning of DBS. Applying the approach set out in KS, we accept that the first stage of the proportionality test is met: the objective of protecting children and vulnerable adults is sufficiently important in principle to justify the limitation of the appellant’s rights.

The second stage asks whether the decision to bar the appellant was rationally connected to the statutory objective. At this point, it is in our judgment important to note that although it is often said that the statutory objective is the protection of children and vulnerable adults, that in fact over-simplifies the position in a way that does not matter in most cases, but does matter in this case. The SVGA 2006 scheme does not purport to be a scheme for the protection of children and vulnerable adults in all contexts. It is limited to the sphere of regulated activity. It is the purpose of other frameworks (the criminal law, social services, the Family Court) to deal with risks that arise outside the sphere of regulated activity.

Section 5 of the SVGA 2006 defines regulated activity relating to vulnerable adults by reference to Part 2 of Schedule 4 (while regulated activity in relation to child is to be construed in accordance with Part 1 of that Schedule). Although regulated activities as there defined may be carried out in the home environment, section 58 of the SVGA 2006 provides that the Act does not apply to “any activity which is carried out in the course of a family relationship”, or “in the course of a personal relationship … for no commercial consideration”. Under that section, “family relationships” include not only actual family relationships but also relationships “between two persons who … live in the same household, and … treat each other as though they were members of the same family” and “personal relationship” includes relationships between or among friends or friends of the family.

As the risks of the appellant’s conduct relate (on the evidence we have) solely to her history of remaining in relationships with abusive partners, the risks are, it seems to us, rationally only capable of arising in the context of activities that she may carry out for children and vulnerable adults in the course of a family or personal relationship. Only such persons are, it seems to us, realistically likely to be at any risk as a result of the appellant remaining in abusive relationships. On the evidence we have, there is in our judgment no rational basis for supposing that her abusive partner(s) (if she has entered into further such relationships) would visit her at work so that her conduct in remaining in that relationship could pose a risk to children or vulnerable adults in a professional context by exposing them to the risk of abuse or witnessing abusive conduct. There is also no evidence of her conduct when away from her abusive partners (at work or otherwise) posing a risk to children or vulnerable adults. Indeed, DBS specifically accepted that it did not consider that the appellant had a ”an impulsive, chaotic and unstable lifestyle”.

We acknowledge that arrangements can be made for children and vulnerable adults to be placed with a carer in the carer’s own home (where risks from a carer’s abusive partner would be real), but arrangements for home placements of this sort (fostering/adult fostering/childminding, etc) are always, in the experience of this panel, subject to detailed vetting of the home circumstances by the placing local authority or Ofsted. In any event, it is clear that DBS did not consider that the appellant’s home circumstances constituted a reason for barring.

It follows in our judgment that there was no rational connection between the barring decision and its object of protecting children and vulnerable adults in the context of regulated activity. As such, DBS’s decision to bar fails the second stage of the proportionality test.

If we needed to go on, we would conclude that the decision also fails at the third and fourth stages.

It fails at the third stage because there are, as we have noted, other frameworks for protecting children and vulnerable adults within the context of personal and family relationships, and for protecting those who are cared for in a non-family relationship within a person’s home. Barring is not therefore the least intrusive means of achieving the statutory objective in the appellant’s case.

As to the fourth stage balancing exercise, even if we were wrong at the second stage, and we should have concluded that there was a rational connection between the statutory objective and the decision to bar the appellant, we would at the fourth stage have concluded that the extent of any risk posed by the appellant in the context of regulated activity is so small that DBS has struck the wrong balance in this case. The risk is small because of the matters we have already identified. The reality is that such risk as there is arises not from the appellant’s conduct, but from personality traits such as poor problem-solving and coping skills. However, there is no evidence that these skills have ever affected the appellant in the context of caring for vulnerable adults. Having poor problem-solving and coping skills is not, without more, evidence from which it can reasonably be concluded a person poses a risk of harm to vulnerable adults. The burden is on DBS to show that it does. DBS’s approach in the decision letter of expecting the appellant to provide evidence that she has been conducting herself appropriately in the workplace inappropriately reverses the burden of proof in this respect.

Against the minimal evidence of risk, we must set the impact on the appellant. Although we have not had the benefit of hearing from her in person, and although we note that she has apparently managed to find alternative employment, it is clear from her grounds of appeal that DBS’s decision had a significant impact on her, coming as it did so closely after the evidently distressing decision by the Family Court to remove Child B from her care. We accept that DBS’s decision had a significant effect on the appellant’s well-being and mental health, as well as on her job prospects and, at least in the short-term, her financial situation.

In our judgment, the impact on the appellant was disproportionate to the objective of barring in this case.

We add this: we have fully taken into account the reasoning in DBS’s decision letter in the course of this decision, and have given weight to DBS’s views in making our own proportionality assessment. However, the weight we have given to DBS’s views has been limited by the errors that we have identified in DBS’s understanding of the evidence (or lack of evidence) it had about the appellant’s conduct. That said, we do acknowledge and accept DBS’s view that, in general terms, the fact that a person has had children removed from their care by the Family Court is a ‘red flag’ that means their case warrants consideration for barring. However, as we have endeavoured to explain, the mere fact that a child has been removed from a person’s care is not enough. In such cases, DBS needs to ensure that it obtains the right evidence, and carefully identifies what that evidence reveals about the individual’s conduct that may be relevant to the risk the individual may pose if carrying out regulated activity. The burden is always on DBS to establish that a barring decision is justified in fact and law.