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Introduction
Introduction
The Appellant (or “MOO”) appeals against the DBS decision (“the barring decision” or “the Decision”) made on 13 February 2024 to include her on the Adults’ Barred List (“the ABL”) pursuant to paragraph 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (“the Act”). As part of its Decision the DBS made a finding of relevant conduct that MOO had punched on the back RR, a vulnerable adult service user in her care, on 5 February 2023.
Orders were made by the Upper Tribunal on 28 June and 2 December 2024 under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules (“the Rules”) directing that the Appellant’s and other witnesses’ names be anonymised and no information be published or disclosed that would identify them.
The Appellant was granted permission to appeal (“PTA”) by the Upper Tribunal on 2 December 2024 in respect of the Decision on the grounds set out below.
This Upper Tribunal (“the UT” or “the Tribunal”) held a hearing of the appeal against the Decision on 6 August 2025. The Appellant was represented by Mr Masemola of counsel and the Respondent (the Disclosure and Barring Service or “the DBS”) by Ms Hartley of counsel. The Tribunal is grateful to them both for their written and oral submissions.
The structure of this decision, by reference to paragraph numbers, is as follows:-
The grounds of appeal and the Appellant’s submissions 59
Factsfound………………………………………………………………………………70
Discussion and Analysis 102
- Heading
- The decision of the Upper Tribunal is that the Appellant’s appeal against the decision of the DBS dated 13 February 2024 is dismissed. There was no mistake of fact nor law in the decision to include h
- Introduction
- Factual background
- Undisputed Chronology
- The incident on 5 February 2023
- Investigatory meeting
- Disciplinary Meeting 17 February 2023
- The Internal Appeal – 27 March 2023
- The DBS Decision
- The Appeal to the UT and grounds on which permission was granted
- Legal framework
- a. “on any point of law” (section 4(2)(a) of the Act)
- Relevant general tests/principles
- Mistakes of fact and the UT’s fact finding jurisdiction
- Assessment of risk
- The grounds of appeal and the Appellant’s submissions
- Barring Decision Process – unreasonableness and disproportionality
- Mistake of law – procedural fairness
- Mistake of fact
- Facts Found
- Appellant’s evidence
- LR’s evidence
- Voice note of team leader Z
- Findings of fact
- Discussion and Analysis
- Other errors of law
- Irrationality
- Proportionality
- Mitigating
- Aggravating
- Conclusions