UT UA-2024-000745-V - [2025] UKUT 129 (AAC)

whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter

This requires a balance. On one side is the severity of the effect of including SLS in the barred lists. She has worked in the care sector for most of her life. Inclusion in the barred lists prevents her working in regulated activity. We do not know what other jobs she has had and assume that she has no other specific qualifications relevant to other employment. That still leaves opportunities in retail, hospitality, catering, office work, cleaning and no doubt others. She will still be able to earn a living, probably comparable in income to her work in the care sector.

On the other side of the balance is the harm that might occur to children or vulnerable adults if SLS were allowed to work in regulated activity. There is no suggestion that she might cause physical, financial or sexual harm to anyone. Her language and attitude, though, shows a lack of respect for them as individuals and of consideration for their feelings. Their integrity is also important. They have full mental capacity for decision-making, but SLS overrode not just their wishes but also their legal right to make decisions even if they were unwise. She had a responsibility both to respect their wishes and to help them understand why they might not be good ones to have.

We have taken account of DBS’s assessment of proportionality. We note that the assessment takes account of ‘some personal stigma for you’. We consider that that stigma would be limited, as there is no public access to the barred lists maintained by DBS. The assessment also refers to ‘impact on your mental health and wellbeing’. We note that SLS told DBS in her representations that the referral was ‘very stressfull for me as this has been ongoing for over a year now.’ We accept that the uncertainty of the DBS process would be likely to cause SLS stress. We do not, though, have any evidence of the effect of barring on her mental health for the future.

It remains for us to decide how the balance should be struck. Our conclusion is that it should be struck in favour of DBS’s decision to include SLS in both barred lists. Given the potential impact of her conduct on children and vulnerable adults, the restriction on her employment is the minimum necessary to protect them.