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Factual background
Factual background
RW was, at the time relevant to the allegations at the centre of this appeal, employed as a support worker in a residential care home for vulnerable adults (the “Care Home”). She was referred to the DBS in relation to an incident which occurred while she was at work at the Care Home, and for which she was dismissed by her employer.
RW accepts that while on duty on 25 February 2023, resident AG was persistently seeking her attention, including help with changing the batteries on his remote, and she told him she was busy, and he needed to wait until she had finished what she was doing. She also accepts that when she went to AG's bedroom to put away laundry, AG blocked the doorway and she put her hands on his waist and moved him forwards so that she could pass, which she thought was "normal process".
However, RW’s colleague SB, who was working the shift with RW, gave a very different account of events. SB’s account prompted an investigation by their employer, a referral to the DBS and RW's dismissal from her job.
Following a paper review, the DBS preferred the colleague's account over RW’s and found it proved on the balance of probabilities that RW:
shouted at resident AG (“Allegation 1”);
threatened to knock AG out, pointing a finger in his face (“Allegation 2”);
told AG to shut up, to go to his room and to stay there (“Allegation 3”); and
pushed AG with both hands in his back down the hallway, causing him to stumble (“Allegation 4” and, together with Allegations 1, 2 and 3, the “Allegations”).
On 5 April 2024, having found the Allegations proved on the balance of probabilities, the DBS decided that RW had engaged in "relevant conduct" in relation to vulnerable adults, and that such conduct was transferable to children. It decided that it was appropriate and proportionate to place RW’s name on both the Adults' Barred List and the Children's Barred List (the "Barring Decision").
- Heading
- The decision of the Upper Tribunal is to allow the appeal. The Disclosure and Barring Service’s decision of 5 April 2024 was based on material mistakes of fact
- Factual background
- Legal framework
- The ‘relevant conduct’ gateway
- The Upper Tribunal’s jurisdiction under the 2006 Act
- The relevant authorities
- The Barring Decision
- The Evidence
- SB’s evidence
- AG’s evidence
- RW’s evidence
- RW’s disciplinary interview
- DBS’s evaluation of the evidence
- Summary of DBS’s case before the Upper Tribunal
- Summary of RW’s case before the Upper Tribunal
- The Upper Tribunal’s assessment of the evidence
- Corroboration provided by AG’s evidence
- Impact of inconsistencies on RW’s credibility, and RW’s live evidence before the Upper Tribunal
- RW’s failure to report her concerns about SB
- No reason to doubt SB’s evidence
- The Upper Tribunal’s assessment of DBS’s findings of fact, and the Upper Tribunal’s own findings of fact
- Allegation 1: “Shouted at resident AG”
- Allegation 2: “threatened to knock AG out, pointing a finger in his face”
- Allegation 3: “told AG to shut up, to go to his room and to stay there”
- Allegation 4: “pushed AG with both hands in his back down the hallway, causing him to stumble”
- Conclusions