[2025] UKUT 192 (AAC)

The first two issues are alleged errors of law alleging the DBS failed to apply the correct statutory thresholds or failed to provide procedural fairness in making its Decisions.

These grounds are taken together and dismissed.

MC has not disputed the core factual matrix in these proceedings. He makes no substantive challenge to his relevant threatening behaviour relating to the Incident. That lack of challenge on the facts was/is not surprising given, among other things, the evidence within the Bundle relating to the CCTV Footage and the “community resolution”.

The DBS decision-maker had not had direct access to the CCTV Footage at the time of Decision 1 (due to an issue with the way the Provider had tried to provide it [96]). But it was/is sufficiently clear, from the documentation in the Bundle and MC’s lack of challenge, that: (1) both the Provider and the police did watch it and relied directly on it and (2), moreover, MC, had essentially been caught “red-handed” by the CCTV Footage. The first account of what the CCTV Footage showed was set out in the relevant incident report [60], re-iterated in the referral to safeguarding [77]. The CCTV Footage was then viewed by the DBS when making Decision 2.

The UT has now had the opportunity to view the video which it has considered with some care together with the transcript. Among other things, it was/is clear that MC had multiple opportunities, during the Incident, to “de-escalate” or take a different approach, but had chosen not to. The Appellant’s conduct was more culpable given the particular issues (and needs) that W, as a result of his conditions, had and was known to have had (as detailed in the care plan documents in the Bundle). MC’s conduct fell short of reasonable or professional standards.

The actual CCTV Footage provides additional support for the Decision. It appears to be materially consistent with the accounts provided in the Bundle (relied on by DBS). MC is likely to have used the word “smash” ‘your nose’ rather than “burst”, during the Incident, when threatening W; but that difference was/is not material. It is also possible to observe “body language” and tone of voice, etc. It is also clear from the CCTV Footage that, at the material time, W was not even cooking (or seeking permission to cook) in the kitchen; he was merely preparing (by peeling/grating potatoes or similar) so that he would be in a position to cook the following day (and was explaining that to MC).

Moreover, the evidence indicates that MC’s culpability was compounded by subsequent events:, MC positively sought to mislead the Provider by alleging (falsely) to GS that W had lied to the police about being threatened by MC [61] [77].

The DBS did not err in finding that MC had committed relevant conduct in the ways found in relation to Decision 1 and 2 during the Incident. It applied the correct threshold in doing so and there was no error of law.

Rather than seek to challenge core factual matters, MC relies on alleging the DBS failure to consider or take into account contradictory or mitigating factors as a purported error of law. The challenge is put as a lack of procedural fairness.

In the Initial Reps, MC made it clear at the outset that he “cannot deny the incident that has happened” [27]. Instead, MC, in essence, sought to claim there were some mitigating circumstances (referring to an alleged earlier incident with W and matters arising from it; and referring to an alleged “slip of tongue” [sic] by MC during the Incident) and sought to deny he had had any intention to actually hurt W.

The UT notes, however, that there was no mention or hint, within the Initial Reps, of any purported concern from MC about noise, and the impact of noise in relation to any other resident (namely, J) at the property, and/or any motivation to assist/protect any other resident. The UT also notes that MC appeared to minimise the Incident, referring to it as “this little mistake of mine”. There is also, the UT will note, no indication (in the references/records of the CCTV Footage, to take the most obvious example) that noise or potential issues relating to other residents was something raised by MC with W, at the material time, as the (or even as a) reason for MC’s acts.

The UT notes the following in particular from the Reps [83] (written, it seems, by a solicitor):

For the reasons set out above, the DBS did not err in not taking the mitigating factors now relied upon into account at the time of making its Decisions. There was no error of law.

Nonetheless, in light of the evidence now heard during the hearing, we do accept that MC was initially motivated during the Incident out of concern for the noise created and for J’s welfare and that MC had suffered from discriminatory language used against him by W in the past. This is some mitigation which we consider below in relation to proportionality.

The DBS made no other errors of law relating to procedural fairness. It did take into account the employer’s account and alleged CCTV, and it did adequately explore the Appellant’s evidence, character references, or the limited police response. It rejected the material relied on by the Appellant for sufficient and rational reasons. It conducted a rational evaluation of all the evidence and properly applied the statutory and evidential framework. The DBS’s conclusion was supported by a balanced review of evidence and the correct legal thresholds were applied.

To the extent MC submits that DBS “should have” taken the Reps “into account”, it is clear, from any fair reading of the Bundle (including the Barring Decision Summary as well as the Final Letter) that DBS did take the Reps into account in making both Decision 1 and Decision 2. In the end, DBS did not consider them to be sufficiently persuasive. DBS was reasonably entitled to take such a view, in all the circumstances, for the reasons it gave.

While it is true that MC did not, other than the Incident, have a history of known misconduct or concerning behaviour etc, the proven conduct was sufficiently serious, in and of itself, in the circumstances, to readily justify the Decision.

There was/is no legal obligation, on DBS, to give people proven to have engaged in relevant conduct a “second chance” (in order, for instance, to “bring” their “attitude within the required standard [9]). A key focus for DBS is, properly, on the vulnerable people (and of taking adequate steps to protect them from a risk of harm) that those participating in regulated activity are trusted to look after.

The point made by the Appellant about the police decision/outcome lacks any sustainable merit. DBS clearly took that outcome into account. The police and DBS have substantially different roles, aims and processes; and, of course, the standard of proof that the police need to operate to is markedly higher than that which applies to DBS and the UT.

To the extent that is submitted that Decision 1 or 2 is “unreasonable” or procedurally unfair, this is not made out. The DBS decisions (as contained in the Final Decision Letters and Barring Decision Summary documents) provided sufficient reasons and took into account the relevant material on behalf of the Appellant. There was no error of law.