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The procedure in relation to the Appeal to the UT
The procedure in relation to the Appeal to the UT
9 Oct 2022 - M’s (UT10) application form presented to the UT [2], including his grounds of appeal (“the Grounds”) [8] in relation to Decision 1.
- UT directions [21], in relation to Decision 1.
05.12.22 - DBS letter to UT [24], in relation to Decision 1.
- UT directions [118], in relation to Decision 1.
- DBS letter to UT [120], to seek extension of time to provide a response to MC’s application. UT agreed to provide extra time [122].
- DBS letter to UT [123], to seek a further extension of time.
04.12.23 - DBS submissions [162], with clarification provided in relation to the CCTV Footage and the development/ issue relating to Decision 2.
- MC requested extra time to consider the development in relation to Decision 2 and the CCTV Footage [175].
- UT directions [176].
- DBS letter, providing additional evidence in relation to Decision 2 [177].
- MC written submissions for the oral permission hearing (“OPH”) [179], including a chronology [191] and a transcript re the CCTV Footage [“the Transcript”] (193).
- The OPH. MC and his counsel attended; DBS did not (and was not required to) [197/198].
- UT granted permission to proceed with the Appeal [197], in relation to both Decision 1 and Decision 2 on the basis of the grounds set out (at para 12 in particular) in the submissions dated 15.12.23 (“the Grounds”). UT directions in relation to further disclosure and the Hearing [198].
- DBS provided further disclosure (i.e. in relation to Decision 2). No further grounds/response/evidence, or other documents, provided by MC (i.e. in relation to para 3 of the UT 19.12.23 directions [199]), whether within the time provided by the UT or (at the time of writing) at all. N/A No response from MC’s representatives in relation to DBS correspondence attempting to agree directions. 04.04.24 UT directions [259]. TBC The filing of this skeleton.
The appeal originally listed for hearing but adjourned and re-listed for 3 April 2025.
- 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