[2025] UKUT 228 (AAC)

The specific wording of pages 2 and 3 of the Minded to Bar letter dated 29 June 2023 is largely drawn from the Barring Decision Summary process document at pages 222 to 223, under the heading “MTB Appropriateness and Proportionality”.

The wording provided about the information and evidence provided by AC in the Barring Decision Process summary is the following:

“Although it appears that [VMAC] was dismissed from his role at AC this does not appear to be in regard to any safeguarding concerns. The employer commented that there had been no evidence of raised voices, temper or aggression in the 6 months he worked at AC. It was noted that he appeared to provide high levels of support to individuals living in chaos and with changeable behaviours.

However, DBS have safeguarding concerns raised by his previous behaviour within his domestic life which have been considered by social services to be a repeated concern.” (page 223 of bundle)

The specific wording of the bottom portion of page 3 and page 4 of the Final Decision Letter dated 05 September 2023, is very similar to what is set out in the Barring Decision Process document at pages 212 to 213, under the heading “Post reps evaluation”.

The wording provided in these documents about the issue is:

“He has worked with vulnerable adults for years and was never a threat to them and does not agree that he could ‘cause similar harm to those you were engaged to provide care’. There is no previous pattern in his behaviour at work to suggest this.

There is no supporting evidence to mitigate the future risk identified and [VMAC] appears to show no insight or remorse”. (Barring Decision Process summary at page 213 of bundle).

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“You say you have worked with vulnerable adults for years and was never a threat to them and do not agree that you ‘could cause similar harm to those you were engaged to provide care’.

You also dispute that there is any previous pattern in your behaviour at work to suggest this.

However, the DBS have not been provided with any supporting primary, evidence to mitigate the future risk identified. This is also because you have shown no insight or remorse for the assault on your stepson and are primarily concerned with the impact of a Police caution on your own career prospects.” (Final Decision Letter, page 13 of bundle)

There are no other references to the risk assessment evidence from AC in the Barring Decision process summary or the Minded to Bar letter and Final Decision Letter.

The risk assessment carried out by AC on 30 September 2022 (pages 127 to 128 of bundle) refers to its safeguarding policy. It stated the following under the heading “Risk they pose to those they may work with”:

“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.”

We took full account of Mr Richards’ submissions. We do not, however, agree with him that the only sensible reading of the specific wording in the Barring Decision Process summary and Final Decision letter is one concluding DBS had taken the AC evidence into account, and had assessed that it provided insufficient evidence to mitigate future risk.

We have approached this issue starting with the wording that was on page 223 and in the Minded to Bar letter at page 73 (see paragraph 86 above). This reflects the starting point taken by the DBS in Mr Richards’ skeleton argument (see paragraph 20, where the content of the risks assessment is described as referred to specifically on multiple occasions). It also reflects Mr Richards’ arguments at the hearing about how to interpret the wording in the Final Decision Letter and the equivalent wording in the Barring Decision Process summary.

Mr Richards argued that what is on page 223 (and in the Minded to Bar letter) represents a careful evaluation of risk taking into account the evidence from AC, and evidenced by using the word “However”, and what then followed in terms of the DBS’s analysis.

The wording following “However” on pages 73 and 223 of the bundle refers to: (i) what happened to VMAC’s stepson, (ii) a statement that the concerns regarding VMAC’s future risk lie in the prospect he might repeat the actions against his stepson within regulated activity, (iii) a statement that VMAC had failed to protect his children from exposure to domestic abuse, and (iv) statements about VMAC recognising he has been unable to cope at times, and accepting some offers of help from authorities (but an assessment that this was not consistent engagement and VMAC had declined help from his GP). Within these paragraphs, there is no analysis made of how the evidence provided by AC was being balanced against those matters.

Furthermore, the extract taken from the AC risk assessment dated 30 September 2022 appears largely to copy and paste some of what was in it, without any specific analysis being performed in relation to what it said. The DBS also leaves out some of the wording in the middle of the section it quotes, which stated: “In fact, he seems to be one of the most calm, placid member [sic] of the team.”. This was important evidence within the overall risk assessment, because it not only considered VMAC’s behaviours in their own terms. It also compared VMAC’s behaviours to others within the same team, indicating he was at the top end of demonstrating calm behaviours that would not respond negatively to challenging behaviours from service users.

As a result, we did not accept Mr Richards’ argument that the wording quoted at paragraph 84 above (which went, in similar terms, into the Minded to Bar letter), represented a methodical evaluation and balancing of the positive evidence provided about VMAC’s behaviours at AC against the assessed risks of his future behaviours. We also did not accept the argument that the AC evidence was referred to on multiple occasions within the overall decision-making documentation. It was referred to within one part of the Barring Decision Process summary document, and that wording was clearly used to set out the content of pages 2 and 3 of the Minded to Bar letter. We considered that it overstated the position to describe this as being specifically referred to on multiple occasions.

Following on from this, we proceeded to assess what the DBS wrote in the Final Decision Letter at pages 12 to 13, reflected in the similar wording used at page 213 of the Barring Decision summary. Here, Mr Richards placed substantial weight on (a) what had been said in the wording reflected at paragraph 84 above and how he invited us to interpret it, and (b) the use of the word “mitigate”. Mr Richards submitted the word mitigate should not be read as the DBS stating no evidence at all had been submitted, but instead as stating that what had been provided was not sufficient to balance against the future risks it had identified.

We did not accept that the natural reading of the wording in the Final Decision Letter on page 13, and in the Barring Decision Process summary at page 213, is to interpret it as being about sufficiency of evidence. The wording cited at paragraph 88 above is stark and clear. It states that there is no supporting evidence to mitigate the future risk (Barring Decision Process summary) or that the DBS has not been provided with any supporting primary evidence to mitigate that risk (the Final Decision Letter). If the DBS meant to say that the evidence that had been provided was not sufficient to mitigate that risk, it could, and should, have said so.

We did not consider that the DBS’s reliance on paragraph 56 of the Upper Tribunal decision in PG v DBS (UA-2022-001349-V, unreported) took matters substantially further. As stated above, we have applied the decisions in XY v ISA and VW to look at the full content of the Barring Decision Process summary, rather than simply considering the Barring Decision in terms of the Final Decision Letter.

In any event, for the reasons set out above, we do not consider that the DBS’s reliance on PG (including the reference to DBS v AB at paragraphs 61 and 62) assists the DBS. We agree that the DBS decision letter had to be read fairly and as a whole (DBS v AB). We acknowledge that the DBS did not have to programmatically recite every piece of evidence at every stage of its analysis. In our assessment, the difficulty with what the DBS wrote in the Final Decision Letter and the equivalent part of the Barring Decision Process summary is that the wording stated, in clear terms, that the DBS had not been provided with any evidence on an issue where it had.

We do not agree with Mr Richards that the only sensible way to read the wording in the documents is in the way he invited us to do so. Nor do we consider this is an example of the DBS merely using infelicitous language to express its position.

Mr Richards argued his first question was whether the DBS had taken account of the risk assessment. However, the terms in which VMAC was granted permission to appeal included whether the DBS had taken adequate account of the risk assessment (our emphasis added). We have proceeded to consider that matter as part of considering whether there was one or more mistake of fact or mistake of law in the DBS’s decision.