[2025] UKUT 228 (AAC)

The Respondent did not place any emphasis in the report on evidence from his former employer AC in reaching their final decision, despite having obtained information from them;

VMAC had worked with adults and children in various roles since August 2012 without any accusation or safeguarding concern being raised. On the other hand, he had been threatened by clients he has worked with. If DBS had contacted VMAC’s employer as he requested, they would have been able to confirm that information;

DBS also did not contact other relevant people VMAC listed with contact details in an email in October 2022, including the coordinator for the EVE domestic violence charity where he completed a course following his caution;

VMAC asked for an oral hearing in July 2023, but DBS never replied to his request;

The Minded to Bar letter DBS sent VMAC dated 29.06.23 states: “Your employer commented there has been no evidence of raised voices, temper or aggression in the six months you worked for [AC]. In fact they say you appeared to provide high level of support to individuals living in chaos and with changeable behaviours”. However, this information was not included in the Final Decision Letter dated 05 September 2023;

The language used in the Minded to Bar letter was that: “based on the enclosed information, it appears on the balance of probabilities” that VMAC exposed his wife and children to domestic abuse. The Final Decision Letter does not use the words: “it appears that” or “on the balance of probabilities”. VMAC questioned what changed factually to justify the change in language;

VMAC challenged whether it is correct to say there was domestic abuse at all, and that if he had done all the things that are alleged, his stepson would have been placed in foster care or even for adoption, and his wife and children would have been placed in a refuge;

VMAC challenged whether the conditional caution dating from 02 December 2021 can be said to be recent in the way DBS asserts, given that it happened two years ago; and

VMAC asked what evidence DBS has to support its assertion that on the balance of probabilities he had anger management issues, and he asked what the balance of probabilities is used to mean in this context.

The DBS may have made a material mistake of fact or a material mistake in law by failing to take adequately into account the evidence it received of the risk assessment carried out by [AC] on 30 September 2022 that:

“There has been no evidence of raised voices temper or aggression in the 6 months [VMAC] has worked for [AC]. In fact he appears to be one of the most calm, placid member of the team who provides high levels of support to individuals living in chaos and with changeable behaviours.”

The evidence from AC was not consistent with the statements in the Final Decision Letter and in the Barring Decision process document that VMAC failed to provide any testimonials, references or any supporting evidence that would mitigate any future safeguarding concerns the DBS had and that DBS had not been provided with any supporting primary evidence to mitigate the future risk identified (pages 13 and 232 of bundle);

The fact the Final Decision Letter did not refer to this evidence, was not, of itself, sufficient to demonstrate that the DBS failed to take the evidence into account. This was because there was a reference to some of that evidence in the Barring Decision process document, which evidenced the entire decision-making process the DBS employed. However, from the written analysis the DBS provided at pages 213 and 232 of the bundle, it appeared the DBS failed to take account of the evidence from AC when assessing and making findings of fact about:

Alternatively, it was arguable that DBS failed to consider that evidence at all as part of the wider evaluation of risk. This is indicated by the statement that it (DBS) had not been provided with supporting primary evidence to mitigate the future risk identified. This arguably represented:

Although some of the risk assessment evidence provided by AC was mentioned in the Barring Process document under the assessment of “Minded to Bar Appropriateness and Proportionality” (pages 222 to 223), the decision of the Upper Tribunal in VW v Independent Safeguarding Authority [2011] UKUT 435 (AAC) confirmed that where the treatment of evidence by DBS was flawed in a specific respect, this could not necessarily be cured by the same evidence being considered in a less flawed manner elsewhere within the Barring Decision process document (see paragraphs 53 to 54 of that decision).