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The DBS procedure in relation to Decision 2
The DBS procedure in relation to Decision 2
07.05.22 - Second and separate referral (by a social worker/NHS trust) [220] [201], around this date, resulting in a second and separate DBS case being created [“DBS Case 2”].
- DBS “early warning” letter [201] in DBS Case 2.
- DBS “minded to bar” letter [205] in DBS Case 2, with attachments [211].
- MC email to confirm receipt and seek extra time [229]. Feb 2023 Exchange of email/letters about MC’s request for extra time [230-235].
01.03.23 - DBS decision to proceed to make a decision [236].
Decision 2
03.03.23 - A separate decision in the 2nd DBS Case was made (“Decision 2”) and communicated in writing to MC. DBS letter communicating Decision 2 to MC [“Final Letter 2”] [237] (to be considered alongside the Barring Decision Summary [“Rationale Document 2”] [243]). The ultimate outcome was similar but not identical: MC would be included in the ABL only.
In summary the letter stated:
“We are satisfied that you meet the criteria for regulated activity. This is because you have been employed as a carer with [E Services at] Supported Accommodation in which you were required to care for a service user. The DBS are therefore satisfied that the test for regulated activity is met in relation to vulnerable adults.
We have considered all the information we hold and are satisfied of the following:
On 08 November 2021, whilst employed as a carer whilst on night shift at E [Services] Supported Accommodation you have threatened and intimidated a service user, Mr W, which has resulted in his behaviours being provoked.
Having considered this, DBS is satisfied you engaged in relevant conduct in relation to
vulnerable adults. This is because you have engaged in conduct which endangered a
vulnerable adult or was likely to endanger a vulnerable adult.
We are satisfied a barring decision is appropriate. This is because it has already been
determined that it appeared that you engaged in relevant conduct which harmed a
vulnerable adult. This was on review of the evidence which demonstrated that whilst you were in a position of trust as a carer, you threatened a service user by invading their
personal space, telling them they must ‘obey’ and shouting at them. This has caused the
service user to feel intimidated as they have moved away, swore and called the Police. You received a Community Resolution Order from the Police and therefore apologised to the service user for your behaviours. You have been dismissed from your position. Your behaviours made the service user feel intimidated and threatened by your actions. The service user has been emotionally impacted by your actions.
…”
- 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