[2025] UKUT 304 (AAC)

NAC was interviewed on 21 December. We have considered the whole of the record, which he signed. These are the parts we find particularly relevant:

NAC dealt with the incident in his witness statement:

In his oral evidence, NAC emphasised repeatedly that he had tapped IR on the side of her head, but had never hit or slapped her on the back of her head or on her hand. He was questioned by the panel about the position of himself, KD and IR relative to each other when the incident occurred. He described IR lying on the bed on her back. He also emphasised that she was biting his hand at the time.

It was put to NAC several times that even tapping IR was disrespectful. He did not accept that and repeated that she was biting him.

Finally, NAC said that KD’s evidence was influenced by professional jealousy. He had completed training packages in order to further his career. As a result, he had been awarded Tesco vouchers. KD, in contrast, had said she was not going to bother with the packages until she wished to progress. She had been told, shortly before the incident, that she would not receive vouchers. To give this evidence our fullest consideration, we took it to cover KD deliberately or subconsciously acting on her jealousy to invent or exaggerate what she had seen in order to cause trouble for NAC.

We have assessed the evidence as a whole. This is a basic requirement, which was reinforced by the reasoning in RI.

We find that KD's only motive for reporting as she did was to draw NAC’s actions to the attention of management. There is no evidence to support any improper motive, deliberate or subconscious. By NAC’s own account, KD was not bothered about progressing her career at that time and had to accept the consequences. Given KD’s attitude to her career, as reported by NAC, there was no reason for her to be jealous.

As Ms Hartley pointed out, KD had given a balanced account, acknowledging how difficult IR was to manage and that this was the first time she had seen NAC step over the line in his rough handling. That was not consistent with someone who was prejudiced against him. We also note that KD invited the investigator to ask another carer about NAC, something that would be a risk if that carer did not support her.

KD’s actions are consistent with her concern at the way NAC had treated IR. She questioned what NAC was doing, as he admits. She gave a credible account of IR’s reaction. And, as Ms Hartley pointed out, she reprimanded NAC for his handling of IR. We can be sure of that. Not only because KD said so, but because NAC confirmed this twice during the investigation. When IR was settled. KD promptly reported what had happened, wrote a note and attended an interview. Her account was consistent throughout.

We find that NAC’s account at the hearing was not reliable. In particular, we find that IR was not lying on her back and that KD was in a position to see what NAC did with his hands. This was the first time that he had given this account. If IR were on her back, it would be nigh on impossible for him to hit IR on the back of her head. If that were true, he would surely have made the point right from the beginning. He did not do so during the investigation or in his witness statement.

Moreover, NAC was inconsistent when answering the questions from the tribunal. He initially told the judge that IR had been changed and was in her night clothes and lying on the bed. This seemed to change as he expanded on his answers. In his answers to Ms Smith, he was clear that IR had not been changed into her night clothes at the time.

NAC’s oral evidence also placed greater emphasis on IR biting his hand to the point that he could not withdraw it than during the investigation and in his witness statement. If this was what happened, he would surely have made more of it in the investigation than he did.

So, in conclusion, we find KD’s evidence reliable in contrast to NAC’s. DBS’s finding was based on KD’s account and we find no mistake in it.

Mistake of law – proportionality

The only argument for NAC on proportionality was one paragraph in the grounds of appeal:

Mr Dayle did not address us on the issue at the hearing. As permission has been given on the issue, we must decide for ourselves whether DBS’s decision was proportionate. We do so in accordance with the decision of the Upper Tribunal in KS v Disclosure and Barring Service [2025] UKUT 45 (AAC), applying the four criteria set out in Section V of that decision.

whether the objective of the measure is sufficiently important to justify the limitation of a protected right

The measure is the barring scheme under SVGA and DBS’s decision under that scheme. Its objective, in the most general terms, is to protect vulnerable adults from harm by those entrusted with their care in regulated activity. That objective is sufficiently important to justify interfering with NAC’s exercise of his Article 8 Convention right.

whether the measure is rationally connected to the objective

DBS’s decision under the barring scheme prohibits NAC from engaging in regulated activity. That is rationally connected to the objective of the scheme.

whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective

We are not aware of any other measure that would protect vulnerable adults but would be less intrusive than including NAC in the list. None was suggested in the grounds of appeal. The argument there was directed to the fourth criterion, which we now come to.

whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter

We accept that NAC’s Article 8 rights will be affected in the ways set out in the ground of appeal. The ground does not, though, address the balance that has to be struck under this criterion. There are other career options that NAC can pursue outside regulated activity. His earning capacity may be reduced, but not necessarily so. It is possible to live a comfortable life in the many fields that will be open to him. And, more importantly, the protection of vulnerable adults outweighs any reduction in his standard of living. As to his mental well-being, there is no evidence before us on this.

For those reasons, we find that DBS’s decision was proportionate.