[2025] UKUT 169 (AAC)

The decision of the Upper Tribunal is to allow the appeal.

The case is remitted to the DBS for a fresh decision.

The DBS are directed to keep the appellant on the lists pending the making of a new decision.

This is the Appellant’s appeal against the Disclosure and Barring Service’s (DBS from now on) final decision, dated 17 May 2024 [10-14] to include him on both the Adults’ and Children’s Barred List under Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (‘the 2006 Act’).

The appellant was granted permission on 25 October 2024 [208-212] to appeal, on the grounds that it was arguable that the DBS had made a mistake of fact and that the decision to place the Appellant on the Adults’ Barred List and Children’s Barred list was disproportionate. The appeal is opposed by the Respondent.

There is no dispute that JO met the criteria for regulated activity under the relevant provisions of the Safeguarding Vulnerable Groups Act 2006 (‘the SVGA’) by reason of his role as a Healthcare Assistant with SW residential care home (referred to as ‘the care home’ from now on.

The appellant lodged an appeal with the Upper Tribunal on 1 July 2024 [2-9].

We held an in-person hearing at Field House, London which the Appellant attended – he was not represented. We heard oral evidence from the Appellant and had a witness statement from a former colleague of his who we shall refer to as ‘ES’. We had an electronic bundle of documents and references in [ ] are to the page number in the bundle. We had a skeleton argument and a bundle of authorities from the Respondent. The Appellant had a hard copy of both.

This was a private hearing. We refer to the Appellant as “JO” or “the Appellant” throughout in order to preserve his privacy and anonymity. For that same reason, we make the rule 14 Order included at the head of this decision and will refer to other individuals by initials only.

The appellant had submitted by email on the Friday before this hearing on the Monday some additional documentation – that consisted of, his own written submissions, a statement from a colleague who had worked with him (ES) and an email form the NHS confirming an application for a role with them had been withdrawn. Those were sent to the DBS’ representative and added to the Tribunal’s bundle.

In the appellant’s written submissions he disclosed that he was still awaiting a trial in the criminal proceedings which related to the primary allegation in this appeal. Neither the tribunal nor the DBS were aware prior to that that a prosecution had been pursued. At the start of the hearing the panel clarified with the Appellant the status of the criminal proceedings and he told us that a date for trial had been fixed for February 2026. We explained to him that he could ask us not to proceed with the Tribunal proceedings given there was a risk that evidence taken in this hearing could incriminate him in the criminal proceedings and we gave him the opportunity to go and take advice from the solicitors representing him in the criminal proceedings. The appellant declined that opportunity and made it clear that he wished to proceed with the appeal.

As the Appellant was representing himself we took his oral evidence by allowing him to read out his statement [222 226] and by the Tribunal panel asking questions before he was cross- examined by the DBS’ counsel.

There are several ways under Schedule 3 to the 2006 Act in which a person may be included on one or other of the two barred lists. This appeal is concerned with discretionary barring. This may be on the basis of either an individual’s “relevant conduct” – in effect their past behaviour – (paragraphs 9 & 10) or the risk of harm they pose now and for the future (paragraph 11). This appeal concerns the former of those two discretionary routes to barring.