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Conclusions
The basis for a “relevant conduct” barring decision
Paragraphs 9 and 10 of Schedule 3 to the 2006 Act deal with behaviour or “relevant conduct” in relation to adults and are in issue in the present case. So far as is relevant, they provide as follows:
(1) This paragraph applies to a person if—
it appears to DBSthat the person —
has (at any time) engaged in relevant conduct, and
is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults, and
DBS proposes to include him in the adults’ barred list.
DBS must give the person the opportunity to make representations as to why he should not be included in the adults’ barred list.
DBS must include the person in the adults’ barred list if—
it is satisfied that the person has engaged in relevant conduct,
(aa) it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults, and
it is satisfied that it is appropriate to include the person in the list.
(1) For the purposes of paragraph 9 relevant conduct is—
conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult;
conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him;
...
A person's conduct endangers a vulnerable adult if he—
harms a vulnerable adult,
causes a vulnerable adult to be harmed,
puts a vulnerable adult at risk of harm,
attempts to harm a vulnerable adult, or
incites another to harm a vulnerable adult.
Rights of appeal
An individual’s appeal rights against a DBS barring decision are governed by section 4 of the 2006 Act:
(1) An individual who is included in a barred list may appeal to the Upper Tribunal against—
…
a decision under paragraph 2, 3, 5, 8, 9 or 11 of Schedule 3 to include him in the list;
a decision under paragraph 17, 18 or 18A of that Schedule not to remove him from the list.
An appeal under subsection (1) may be made only on the grounds that DBS has made a mistake—
on any point of law;
in any finding of fact which it has made and on which the decision mentioned in that subsection was based.
For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.
An appeal under subsection (1) may be made only with the permission of the Upper Tribunal.
Unless the Upper Tribunal finds that has made a mistake of law or fact, it must confirm the decision of DBS.
If the Upper Tribunal finds that DBS has made such a mistake it must—
direct DBS to remove the person from the list, or
remit the matter to DBS for a new decision.
If the Upper Tribunal remits a matter to DBS under subsection (6)(b)—
the Upper Tribunal may set out any findings of fact which it has made (on which DBSmust base its new decision); and
the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise.
Caselaw
In Disclosure and Barring Service v AB [2021] EWCA Civ 1575 [2022] 1 WLR 1002 (DBS v AB) the Court of Appeal considered the respective roles of the Upper Tribunal and the DBS. In particular:
[43] By way of preliminary observation, the role of the Upper Tribunal on considering an appeal needs to be borne in mind. The Act is intended to ensure the protection of children and vulnerable adults. It does so by providing that the DBS may include people within a list of persons who are barred from engaging in certain activities with children or vulnerable adults. The DBS must decide whether or not the criteria for inclusion of a person within the relevant barred list are satisfied, or, as here, if it is satisfied that it is no longer appropriate to continue to include a person's name in the list. The role of the Upper Tribunal on an appeal is to consider if the DBS has made a mistake on any point of law or in any finding of fact. It cannot consider the appropriateness of listing (see section 4(3) of the Act). That is, unless the decision of the DBS is legally or factually flawed, the assessment of the risk presented by the person concerned, and the appropriateness of including him in a list barring him from regulated activity with children or vulnerable adults, is a matter for the DBS.
At Paragraph 54 there was a warning that the UT could not simply remake a decision with which it disagreed. And at paragraph [55] of Lewis LJ made the following observations on the nature of the findings of fact made by the Upper Tribunal:
[55]. The Upper Tribunal also made findings of fact and made comments on other matters. Section 4(7) of the Act provides that where the Upper Tribunal remits a matter to the DBS it "may set out any findings of fact which it has made (on which DBS must base its new decision)". It is neither necessary nor feasible to set out precisely the limits on that power. The following should, however, be borne in mind. First, the Upper Tribunal may set out findings of fact. It will need to distinguish carefully a finding of fact from value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness. The Upper Tribunal may do the former but not the latter. By way of example only, the fact that a person is married and the marriage subsists may be a finding of fact. A reference to a marriage being a "strong" marriage or a "mutually supportive one" may be more of a value judgment rather than a finding of fact. A reference to a marriage being likely to reduce the risk of a person engaging in inappropriate conduct is an evaluation of the risk. The third "finding" would certainly not involve a finding of fact. Secondly, an Upper Tribunal will need to consider carefully whether it is appropriate for it to set out particular facts on which the DBS must base its decision when remitting a matter to the DBS for a new decision. For example, Upper Tribunal would have to have sufficient evidence to find a fact. Further, given that the primary responsibility for assessing the appropriateness of including a person in the children's barred list (or the adults' barred list) is for the DBS, the Upper Tribunal will have to consider whether, in context, it is appropriate for it to find facts on which the DBS must base its new decision.’
There is also the guidance of the Upper Tribunal (Farbey J, Upper Tribunal (UT) Judge Jacobs and UT Specialist Member Ms Joffe) in PF v Disclosure and Barring Service [2020] UKUT 256 (AAC); [2021] AACR 3:
[39] There is no limit to the form that a mistake of fact may take. It may consist of an incorrect finding, an incomplete finding, or an omission. It may relate to anything that may properly be the subject of a finding of fact. This includes matters such as who did what, when where and how. It includes inactions as well as actions. It also includes states of mind like intentions, motives and beliefs.
And at:
[49] We prefer to avoid talking in terms of respect, or in terms of the starting point for the tribunal’s consideration beyond saying that an appellant must demonstrate a mistake of law or fact. We put it like this. The DBS’s reasoning will be before the Upper Tribunal and the tribunal will take account of it for what it is worth in the context of the evidence as a whole. At one extreme, it may be of little assistance. If the tribunal has received significant further evidence (such as oral evidence that would not have been available to the DBS), it is likely that its evaluation of the evidence that was before it will have been overtaken so that the only appropriate approach will be for the Upper Tribunal to begin afresh. At the opposite extreme, it may play a significant role.
And they concluded as follows:
Summary
[51] Drawing the various strands together, we conclude as follows:
In those narrow but well-established circumstances in which an error of fact may give rise to an error of law, the tribunal has jurisdiction an error of fact may give rise to an error of law, the tribunal has jurisdiction to interfere with a decision of the DBS under section 4(2)(a).
In relation to factual mistakes, the tribunal may only interfere with the DBS decision if the decision was based on the mistaken finding of fact. This means that the mistake of fact must be material to the decision: it must have made a material contribution to the overall decision.
In determining whether the DBS has made a mistake of fact, the tribunal will consider all the evidence before it and is not confined to the evidence before the decision-maker. The tribunal may hear oral evidence for this purpose.
The tribunal has the power to consider all factual matters other than those relating only to whether or not it is appropriate for an individual to be included in a barred list, which is a matter for the DBS (section 4(3)).
In reaching its own factual findings, the tribunal is able to make findings based directly on the evidence and to draw inferences from the evidence before it.
The tribunal will not defer to the DBS in factual matters but will give appropriate weight to the DBS’s factual findings in matters that engage its expertise. Matters of specialist judgment relating to the risk to the public which an appellant may pose are likely to engage the DBS’s expertise and will therefore in general be accorded weight.
The starting point for the tribunal’s consideration of factual matters is the DBS decision in the sense that an appellant must demonstrate a mistake of law or fact. However, given that the tribunal may consider factual matters for itself, the starting point may not determine the outcome of the appeal. The starting point is likely to make no practical difference in those cases in which the tribunal receives evidence that was not before the decision-maker.
In AB v DBS [2022] UKUT 134 (AAC) the Upper Tribunal considered the competing arguments in AB v DBS [2021] EWCA Civ 1575 and PF v DBS:
The question is then where this all leaves the Upper Tribunal in practical terms in the exercise of its appellate jurisdiction in safeguarding cases.
On the one hand, the Court of Appeal has stated that “the assessment of the risk presented by the person concerned… is a matter for the DBS” (DBS v AB at paragraph [43]).
On the other hand, in cases in which the DBS relies on a risk of harm under paragraph 5 of Schedule 3, rather than ‘relevant conduct’ under paragraph 3, the Upper Tribunal may have to determine as a question of fact whether a person “may—(a) harm a child, (b) cause a child to be harmed, (c) put a child at risk of harm” (etc) (see paragraph 5(4)).
There is, in our view, a way of squaring this circle while respecting both Court of Appeal authority and the primacy of statute (and in particular section 4(1) to (3) of the 2006 Act). We return to the ambiguity we identified in the passage from DBS v AB discussed at paragraph 34 above. We are satisfied that the Court of Appeal was saying no more than that the element of the risk assessment which is part and parcel of the assessment of appropriateness for the purposes of deciding whether to place the individual on a barred list is non-appealable. This reading is consistent with the fact that any decision taken under paragraph 5 of Schedule 3 – which, as we have seen, necessarily includes some findings as to risk – to include an individual on the Children’s Barred List is undoubtedly appealable (see section 4(1)(b)). To that extent we do agree with Mr Geering.
In this context, however, we make a distinction between (i) deciding as a matter of fact whether a person poses a risk; and (ii) deciding on the level of the risk posed by way of a risk assessment.
Concluding that they could make findings about the risk issues which were findings of fact whereas findings on the level of risk were not.
The Court of Appeal said that was impermissible, because the UT was only entitled to carry out its own evaluation of the evidence that was before the DBS if it had first identified that the DBS had made a finding which was not available to it on the evidence on the balance of probabilities.
Oral evidence
In his oral evidence at the Tribunal hearing JO maintained a consistent and absolute denial of the allegations made against him. In relation to the incident where he was alleged to have fallen asleep at work he believed that he was being set up by KF who checked on him an unusual number of times and he had been told by a member of the domestic staff that he should ‘watch his back’ as KF was going to report him for sleeping. He denied having been asleep and said that he had seen KF and JH approaching him when they came upstairs and had greeted them. He confirmed that the disciplinary investigation meeting had accepted what he had said about the amount of ironing he had done whilst upstairs and the online course he had been doing on his ‘phone whilst lying on the floor’ and had decided to give him the benefit of the doubt and take no further action.
Although part of JO’s case was that he was subjected to differential treatment as the only black male member of staff he did not provide any clear examples of others being treated more favourably. He told us about a female colleague (“S”) who had been accused of sleeping at work and had been suspended from work and then allowed to return – he did not think she had been subject to any disciplinary sanction but did not know the details. But he also said that she had not wanted to work upstairs because she was concerned about falling asleep and being checked up upon which suggested that spot checks were not uncommon. His belief stemmed from his perception that he was checked up on more than others and a comment from a black colleague that said she thought the spot checks were because all those on shift that night were black.
In relation to the incident on 2 September 2023 when giving personal care to JD he said that JD could be aggressive and disorientated when woken for personal care in the night and that he had proved to be aggressive and resistant on that night. He adamantly denied all the allegations against him and pointed to the lack of evidence of any injury to JD. When describing how he had had to hold JD’s hands to clean them JO gestured holding his fists up in front of him to demonstrate how JD had responded. But when it was put to him that it looked a little like a boxing stance and might have prompted some joking about wanting to box JO was very clear that there had been no discussion about boxing and no punching, even in jest. He accepted that he had held JD’s hands but not forcefully and said he had guided his legs as he had been turned in bed so there was no possibility that JD could have banged his legs on the radiator. He also denied the allegations of slapping, pinning him down or throwing/holding a pillow over him. He could suggest no motive for LB making up the allegations other than his belief that she was friends with KF and there were some form of workplace politics at play.
Conclusions
The central question for us was whether the DBS made a mistake of fact in their decision to place JO on the Vulnerable Adults and Children’s Barred Lists. We have had the benefit of hearing from JO and have listened carefully to all his evidence.
We are satisfied that in relation to the central incident on 3 September 2023 the DBS were entitled to accept the findings of the Care Home that JO had caused physical and emotional harm to a vulnerable service user. He had denied the allegations at the time and had maintained that position throughout but there was nothing in his evidence to the Tribunal which convinced us that those findings were mistaken or that there was something missing. LB’s evidence was credible and no motive for her to fabricate the story has been established. The suggestion that she was friendly with KF, the member of staff who had accused JO of sleeping had been denied by her and was nothing more than supposition by JO. His belief that he was being treated differently, perhaps because of his colour, was not substantiated as another member of staff was also disciplined for being found asleep and we were not told that she was not black. It was not only JO who was subjected to spot checks, we heard S was also worried about being checked up on whilst working upstairs. In any event they are likely to be common practice in any care home.
The additional witness statement which we had from JO’s former colleague ES was a good character reference but she did not witness the interaction with JD and could only say that the allegations were inconsistent with the man she knew.
However in respect of the second allegation about sleeping at work we conclude that the DBS did make a mistake of law as they did not take account of the evidence accepted by the Care Home [161- 163] that JO had undertaken online training at the time when it was suggested he was found asleep, had completed a larger volume of ironing than was usual and had done all jobs well. Although the DBS noted in the BDS that the Care Home had given the benefit of the doubt and accepted that he was resting rather than sleeping [190] it refers only to the credibility of the two witness statements made against him and does not reference the other evidence which the employer took into account in deciding to take no further action and accept JO’s explanation. Those are omissions which amount to a mistake of law.
Disposal
The relevant law is set out in section 4(5)-(7) of the 2006 Act as follows:
Unless the Upper Tribunal finds that DBS has made a mistake of law or fact, it must confirm the decision of DBS.
If the Upper Tribunal finds that DBS has made such a mistake it must—
direct DBS to remove the person from the list, or
remit the matter to DBS for a new decision.
If the Upper Tribunal remits a matter to DBS under subsection (6)(b)—
the Upper Tribunal may set out any findings of fact which it has made (on which DBS must base its new decision); and
the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise.
Section 4(5) does not apply, as we have concluded that the DBS’s decision involved relevant mistakes of fact. So, we are not obliged to confirm the DBS’s decision. Accordingly, the choice for disposal is between either directing the DBS to remove the Appellant from the Lists or remitting the matter to DBS for a new decision (section 4(6)(a) or (b) respectively).
We have decided that it is appropriate to remit this appeal. That we are remitting just means that the DBS has to make a new decision, this time on the basis of all the facts that were before them and taking into account the matters which we found the DBS erred in law in failing to take into account. The new decision will be whether or not he should remain on the lists; the appellant should be aware that the DBS might again decide that he should be on the lists.
Given that we have not found any mistakes of fact in relation to the main incident and we have found only errors in respect of the lesser allegation we think it appropriate to leave the appellant on the lists until the DBS have reconsidered their decision. The DBS are therefore directed to keep the appellant on the lists until the new decision is made.
Judge Fiona Monk
Chamber President of the WPAFCC
Sitting as a judge of the Upper Tribunal
Upper Tribunal Member Suzanna Jacoby
Upper Tribunal Member John Hutchinson
Authorised for issue on 29 May 2025