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Ground 4 – whether MC had caused “emotional harm” to W etc
Ground 4 – whether MC had caused “emotional harm” to W etc
Ground 4 is set out at para 12(4) – and paras 28-31 – of the Grounds dated 15 December 2023.
There was no mistake of fact: it is clear from the CCTV Footage that MC caused at least some emotional harm to W. No more is required. We are satisfied that the inference can and (in practice) must be drawn from the footage and W’s reactions (within it) to MC’s interventions and from the fact that W did indeed then contact the police.
If more evidence was required, there is more: in what appears to be another incident report [225] (before the decision-maker in Decision 2 but not Decision 1) [“the Other Report”], there is evidence that W remained agitated for some time after the Incident and after calling police, including after the “night staff” arrived and asked him whether he was “okay”.
Once again: it would not be material in any event – the Relevant Conduct had the clear and obvious potential to cause significant emotional harm to W (and put him at risk of a wider deterioration in his mental health with all the adverse consequences which could follow – drug use, self-harm, etc). That would be sufficient to fall within the definition of harm for the purposes of relevant conduct within the Act.
- Heading
- The decision of the Upper Tribunal is that the Appellant’s appeal against the first decision of the DBS dated 13 July 2022 is allowed in part. There was a mistake of law in including him on the Childr
- REASONS FOR DECISION
- Factual background
- The DBS procedure in relation to Decision 1
- The DBS procedure in relation to Decision 2
- The procedure in relation to the Appeal to the UT
- The CCTV Footage
- Legal framework
- a. “on any point of law” (section 4(2)(a) of the Act)
- Relevant general tests/principles
- The grounds of appeal and the Appellant’s submissions
- Facts Found
- Discussion and Analysis
- The 8 grounds of appeal for which permission was granted
- Ground 2 – whether MC “invaded” W’s personal space etc
- Ground 3 – whether MC had no regard to what the manager had said etc
- Ground 4 – whether MC had caused “emotional harm” to W etc
- Ground 5 – whether MC failed to report and/or concealed his conduct etc
- Ground 6 – whether MC had demonstrated “callousness” etc
- Ground 7 – whether there was a “significant risk” of future harm etc
- Ground 8 – in relation to the “transferability” to children etc
- The three grounds of appeal pursued at the hearing
- Issue 1 : Whether the DBS applied the correct statutory test and evidential threshold in deciding to bar the Appellant, including whether it adequately considered mitigating evidence or contradictory
- Issue 2 Proportionality issue : Whether the indefinite bar constitutes a disproportionate interference with the Appellant’s rights under Article 8 of the European Convention on Human Rights (“ECHR”)
- Allowing in part the appeal against Decision 1 – inclusion on the Children’s Barred List
- Conclusions