[2025] UKUT 321 (AAC)

When reaching its decision, the DBS relied on a risk assessment that MOO may repeat her behaviour if she were allowed to work with vulnerable adults again in the future in circumstances where she had not fully acknowledged her harmful behaviour (FDL – [93]). In this regard the DBS noted that the circumstances in which MOO’s behaviour occurred are not uncommon in regulated activity.

Irrationality was described by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, [1984] 3 All ER 935 at [410] as follows:

“By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness”. … It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

We are satisfied that the DBS risk assessment was not irrational – particularly in circumstances where MOO has continued to deny her conduct. Thus, she has demonstrated no insight or attempt to remediate the risk she poses. Since MOO continues to deny/minimise her actions, it follows that she cannot have fully reflected on or sought to address what drove that behaviour. The DBS was entitled to conclude that such a person may pose an ongoing risk to vulnerable adults in regulated activity. This cannot be described as being irrational or in defiance of logic, let alone to such a degree that no sensible person who had applied their mind to the question could have arrived at the same conclusion.

Even leaving aside the fact that unless a decision of the DBS is legally or factually flawed, the assessment of (and, by extension, solicitude about) the risk presented by a person is a matter for the DBS (per Lewis LJ at [43] of AB), the above analysis is unimpeachable in light of MOO’s continued denial of what amounted to an assault upon a vulnerable adult. We have found her denial to be unreliable and have rejected her explanation as set out above. This means that the DBS made no mistake in finding she lacked insight and empathy and this increases the risk of a repeat of the conduct.

Whilst the DBS’s requirement to bar was engaged under paragraph 9 of Schedule 3 of the 2006 Act irrespective of whether MOO was regarded as posing an ongoing risk, the DBS was entitled to conclude that someone who responded to the challenging behaviour of a vulnerable adult by striking them with a clenched fist may pose an ongoing risk, particularly once regard is had to MOO’s continuing denial/minimisation of her actions.

MOO’s behaviour amounts to relevant conduct for the purposes of the 2006 Act and the DBS having regard to relevant conduct per se cannot be irrational.