[2025] UKUT 321 (AAC)

The DBS investigated the incident on 5 February 2023 and sent the Appellant a minded to bar letter and invited her representations in reply which she then gave.

The DBS rejected the Appellant’s representations in its Final Decision Letter dated 13 February 2024. The Decision letter included the Appellant on the ABL and stated as follows:

“How we reached this decision

We are satisfied that you meet the criteria for regulated activity. This is because you worked as a Support Worker with [PC].

We have considered all the information we hold and are satisfied of the following:

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On 05/02/2023 whilst employed as a Support Worker for [PC], you struck service user [RR] on her back with your fist.

Having considered this, DBS is satisfied you engaged in relevant conduct in relation to vulnerable adults. This is because you have engaged in conduct which endangered a vulnerable adult or was likely to endanger a vulnerable adult.

We are satisfied a barring decision is appropriate. In representations you denied that you punched RR as described by the witnesses. You stated that the description of a clenched fist, which was described as a big punch which made a loud bang on the back should have left a bruise as RR tends to easily bruise easily. A body map was done on the day following the incident and there was no bruise that came up according to the team lead.

This is consistent with you version given to your employer and although it is acknowledged that there was no evidence of bruising this does not evidence that you could not have hit RR as described.

You confirmed that you reported on the day that RR had grabbed the scales from you and hit you with them on the chest. As RR went to do it again you raised your arms to protect yourself and the scales hit your arm. Your colleagues did not intervene. You remembered raising your hands to protect your face and stomach whilst walking towards the table to grab the scales. Your sole intention was to keep the service user, as well as yourself, safe. The reason you stretched out your hands was to try and protect your stomach while you quickly rushed towards the table to grab the scales. This was to prevent any possible escalation of putting the service user or yourself at risk. In doing so, your hand could have touched RR's back, which is very possible considering the speed of the incident, but this was never your intention. Had you realised at the time that there had been any contact from you to RR, you would have apologised to RR immediately and self-reported that contact in your report on Nourish. As it was, you believe you were in shock and did not even register the comment made from one of your work colleagues who said she spoke to you and stated, "you just hit her".

You suggested that your colleagues may have been offended by your innocent remark about Filipino's which caused ill feeling and which you apologised for. After that you observed a coldness towards you but never had the discussion again. You pointed this out during your hearing, but it was never captured or looked into by your employer. You assumed the reason why they did not try to intervene in the incident between RR and you emanated from the unfriendly attitude you had received from them after that conversation.

You had not previously stated that you rushed towards the table to grab the scales whilst your hands were raised and could have made contact with RR's back. Both witnesses describe RR walking away to exit the room when you took steps towards her before hitting her with a clenched fist and which do not describe you trying to grab the scales at this point. DBS is satisfied that the witness accounts are reliable. There is also no evidence that you had previously offered the employer this motive for your colleagues to fail to intervene or collude to make false allegations against you. Given these inconsistencies and the lack of any evidence to support your claims, your account in representations is considered to be unreliable.

RR's mother maintained her view that you provided good care to RR who was safe in her care. A further supporting statement from RR's mother was provide. This described RR's challenging behaviour and your positive support. RR told them that she had hit you and they thought the allegation that you hit RR was odd. RR would be very angry if someone hit her, and they were sure she would have told them. In support of yourself, her husband also phoned the then manager and asked him to be lenient with you because of your kindness and perseverance with RR.

Whilst it is acknowledged that RR's family remain supportive of you this does not undermine the findings. Colleagues [BB] and [MJL] along with RR herself all reported that you had hit RR as alleged and following a thorough investigation the employer found the allegation proven. DBS is now satisfied that you did behave as alleged.

DBS is satisfied that the context is as follows. You were providing support to service user RR who had learning difficulties but had capacity. You had worked with RR for several months and knew her behaviours very well. RR regularly displayed challenging behaviour and was known to be physically aggressive towards staff. Two colleagues provided corroborating accounts or the incident and there is no apparent reason for them to make malicious allegations and are therefore considered to be credible. They both described how you had some weighing scales to check RR's weight however RR became agitated and angry and knocked the scales out of your hand hitting you as she did so. RR was seen to walk away and had her back to you when you took a couple of steps towards RR and hit her on the back with a clenched fist. This was described as a big punch which made a loud bang on the back. Both then describe how one colleague challenged you that you had just hit RR. Although there was no evidence of bruising and RR did not react to the assault it is likely to have caused a degree physical and emotional harm. RR later disclosed the assault to police however she and her family did not wish to press charges.

You were dismissed from your employment but consistently denied assaulting RR during your appeal, raising a number of concerns about the disciplinary process. Although you suggested that RR had a history of accusations and that the witnesses were not consistent, given the corroborating witness accounts the reliability of this allegation is not in doubt. It is acknowledged that RR and her family did not wish to press charges and there was no body map done however this does not support your case that you did not act as alleged. You suggested that the investigation was unfair however there is no evidence to support this.

Your union representative challenged why the witnesses had not attended fact finding meetings however this was addressed where these were conducted after the appeal hearing and which formed part of the investigation report.

The investigation addressed your challenges and considered all evidence thoroughly. The

witness fact finding meetings where completed however it was decided not to interview RR on what appear to be reasonable grounds. It was consistently reported by three people including the victim that you had punched RR on her back with a closed fist. This went against your version where you denied the allegation however it was concluded that you did hit RR on the back and recommended the outcome be upheld. The decision to uphold the findings was confirmed in detail in the appeal outcome letter which is considered to be a reasonable conclusion given the evidence available.

There are significant concerns that you demonstrated a belief that would endorse harmful behaviour. Despite your experience and knowledge of RR's challenging behaviours and knowledge of how to manage these behaviours, you reacted poorly to being hit by RR demonstrating a belief that RR deserved physical punishment for assaulting you.

There are significant concerns that you demonstrated a lack of empathy with a service user in your care. You appeared unwilling to empathise with RR who was particularly vulnerable due to learning difficulties when you assaulted her by hitting her on the back with your fist which is likely to have caused physical and emotional harm.

Your harmful behaviour occurred in regulated activity where you reacted poorly to RR's behaviour towards you by deliberately assaulting RR when she presented no risk to you which is likely to have caused physical and emotional harm. Repeating your behaviour is always likely to cause significant physical and emotional harm. It is acknowledged that you provided an apology and expressed regret that the incident caused distress to RR however you did not fully acknowledge your harmful behaviour. Your behaviour occurred in circumstances that are not uncommon in regulated activity and given your lack of acknowledgement and the concerns raised by your harmful beliefs and lack of empathy for those in your care, DBS are concerned that you could repeat your behaviour in future. Repeating this behaviour in regulated activity with vulnerable adults by reacting poorly to challenging behaviour by assaulting service users, would cause significant physical and emotional harm and therefore it is appropriate to include you in the Adults' List.

Your rights under Article 8 of the European Convention for Human Rights (ECHR) have been considered and afforded and a bar on the Adults' List is an appropriate and proportionate response to the risk of harm presented. It is recognised that a bar would impact on your right to a private life as you would be unable to engage in Regulated Activity with this group which the evidence demonstrates you have done previously as a Support Worker. It is acknowledged that a bar may cause a degree of personal stigma and may adversely impact your mental health. A safeguarding decision must however take into account not only the rights of an individual but the need to protect those in Regulated Activity from harm. Given the risk of further emotional or physical harm if you were to engage in regulated activity, a bar is an appropriate, proportionate and necessary safeguarding measure and given the risk presented and that there are no other safeguarding measure given in place.”