[2025] UKUT 192 (AAC)

The Appellant was granted permission to appeal on the following grounds drafted by his former counsel in December 2023:

“…the DBS erred in fact and/or law in relation to the following five findings of fact in its decision, which were all clearly material/relevant because they informed the DBS’s analysis of MC’s conduct and the assessment of risk/appropriateness/proportionality, this incident being the only allegation relied upon by the DBS against MC:

(1)

The finding that W[] was legitimately using the kitchen and that MC’s actions in challenging W[] and preventing him from so doing were therefore unnecessary/inappropriate/without any provocation. In fact, W[] was notlegitimately using the kitchen because his care plan provided that he needed staff supervision at all times yet he had plainly been using (and wanted to continue using) the kitchen alone.

(2)

The finding that MC had repeatedly invaded W[]’s personal/safe space. In fact, MC maintained a reasonable distance to W[] at all times during the incident.

(3)

The findings that MC had said he didn’t care what the manager said, and that MC’s behaviour therefore showed an attitude that he is entitled to disregard the care plans and instructions of management and enforce his own rules. In fact, MC said no such thing and, indeed, once W[] had told MC that he was a hundred percent sure the manager had told him he was allowed to use the kitchen, MC actually said alright and stopped trying to tell W[] not to use the kitchen, showing that he was trying to follow what the management had said.

(4)

The finding that MC’s conduct did, as a matter of fact, cause emotional harm to W[]. There was no, or at least insufficient, evidence in this case on which to base such a finding of fact on the balance of probabilities.

(5)

The findings that MC had failed to report the incident and later concealed his behaviour by suggesting that W[] had lied to police about being threatened. There was again no, or at least insufficient, evidence in this case on which to base such findings of fact.

For completeness, in addition to those material factual errors, MC will contend that the DBS further and separately erred in the three ways identified below, although, following the observations at para 9(5) above, it may be that these submissions will ultimately fall away if the Tribunal agrees with the preceding submissions as to the alleged factual mistakes.

(6)

The DBS erred when finding that MC’s conduct demonstrated callousness and a lack of empathy and therefore that MC had a harmful attitude and lack of empathy. In addition to the factual errors relied upon above, the DBS erred in law by failing to take into account the fact that MC had worked in the sector for several years without any allegations concerning his behaviour, which was unarguably relevant if he is said to have such an essential and irremediable flaw in his character and, as the DBS accepted, MC’s behaviour occurred in circumstances that are not uncommon in regulated activity.

(7)

The DBS erred in law when finding that MC poses a significant risk of emotional harm to vulnerable adults. In addition to the errors already pleaded, the DBS failed to give sufficient reasons and/or reached a Wednesbury unreasonable finding that the risk of emotional harm was significant on the basis simply of a finding that it was considered likely that MC could repeat his behaviour in future.

(8)

The DBS failed to give any, or any adequate, reasons for its finding in relation to the “transferability” of MC’s behaviour in respect of children, as borne out by the second DBS decision not to include MC on the CBL.

In written submissions filed by his solicitors on 2 April 2025 for the hearing, the Appellant relied on three different grounds:

In support of Issue 1, Mr Badar, for the Appellant, submitted that there is a lack of clear evidence that the Appellant’s conduct satisfied the definition of “relevant conduct.” The minor involvement of police and the absence of physical harm suggest that the DBS may have overstated the severity of the incident. The DBS must, on the balance of probabilities, be satisfied that the Appellant’s conduct posed or was likely to pose harm. Where serious outcomes such as indefinite barring are at stake, rigorous scrutiny of evidence is required. The DBS appears to have taken the employer’s account and alleged CCTV references at face value, without adequately exploring the Appellant’s evidence, character references, or the limited police response. Menon v Secretary of State for the Home Department [2005] EWCA Civ 1605 highlights that high-stakes decisions demand thorough evaluation of conflicting material. By failing to demonstrate such an evaluation, the DBS risked misapplying the statutory and evidential framework. The DBS’s conclusion seems unsupported by a balanced review of evidence, calling into question whether the correct legal thresholds were applied.

In support of Issue 2 Mr Badar submitted that an indefinite bar from regulated activity interferes with the Appellant’s right to private life under Article 8 ECHR, encompassing professional and personal development. The DBS’s decision letter merely asserts that an indefinite bar is “necessary and proportionate,” without showing consideration of less restrictive alternatives. Given the minor nature of the police resolution and the Appellant’s previously unblemished record, an indefinite bar is arguably excessive. A decision-maker must not interfere more than is strictly required to meet safeguarding objectives. The DBS failed to illustrate why no other measures short of a permanent bar could protect vulnerable individuals, making the decision disproportionate and incompatible with Article 8.

In support of Issue 3 Mr Badar submitted that the Appellant is entitled to a fair process and a fully reasoned decision, particularly given the significant restrictions now imposed. In R. (on the application of Wright) v Secretary of State for Health [2009] UKHL 3, the House of Lords emphasized that safeguards must be robust and fair when blacklisting care workers. The decision letters do not adequately engage with the Appellant’s perspective, good conduct record, or the police’s choice of a minimal sanction. A high-level re-statement of allegations does not meet the standard of fairness. No detailed explanation is given as to why an indefinite bar—rather than a time-limited bar or other safeguards—was chosen. This omission undermines the credibility and legality of the decision, indicating a lack of individualized consideration. Given the significant impact of a bar, the process followed by the DBS did not satisfy procedural fairness, and the decision letter fails to provide sufficiently detailed reasons.