[2025] UKUT 192 (AAC)

Ground 8 is set out at para 13(8) of the Grounds. The Appellant submits that there was an error of law in relation to Decision 1 because there was no evidence from which it could be inferred he posed a risk of harm to children in the future or that the risk of harm to adults was transferrable to children. He had never committed relevant conduct against children and so should not have been included on the CBL in Decision 1.

Decision 2 cannot be relied on by MC in the way referred to in or suggested by the Grounds. Significantly, the DBS made no substantive decision on the transferability of the risk of harm to children in relation to the CBL in Decision 2. It never got that far because that decision-maker was not first satisfied that the (pre-requisite) “test for regulated activity” (as it is sometimes referred to) in relation to children was met. We address below whether that was the correct decision and whether there was a mistake in law in including the Appellant on the CBL in Decision 1.

However, whether or not the test for regulated activity with children was engaged, in relation to Decision 1 the DBS would have been entitled to include MC in the CBL as well as the ABL, having regard to the broad definition of Relevant Conduct within the Act (as including conduct which “if repeated against or in relation to children” would, in effect, be likely to put that child at risk of harm) among other things.

It is not in dispute that there was no evidence that MC had in past committed relevant conduct against children. The DBS relied upon their assessment MC posed a risk of harm to children in the future (harm which if repeated against children would constitute relevant conduct). We accept the risk to children was rationally assessed and transferable for the reasons the DBS relied upon in Decision 1. The transferability to children could reasonably be inferred from MC’s attitude towards a vulnerable adult in his care. The DBS’s reasoning contained in the final decision letter in Decision 1 was rational:

“Given your behaviour driven by a belief that you are entitled to behave in a harmful manner towards service users with a lack of empathy with those in your care, it is considered likely that you could repeat your harmful behaviour in regulated activity with children. Repeating this behaviour would cause emotional harm and therefore it is appropriate to include you on the Children's List.”