JE v The Disclosure and Barring Service

Factual and Procedural Background

The Appellant appealed against a decision by the Disclosure and Barring Service ("the DBS") dated 8 August 2022 to include her on both the Children's Barred List and the Adults' Barred List under the Safeguarding Vulnerable Groups Act 2006 ("the 2006 Act"). The case arose from an incident reported on or around 12 August 2021, when the Appellant, while supporting a vulnerable service user with personal care at a care home, failed to follow the prescribed moving and handling procedures. Specifically, she did not use a hoist as required by the service user's care plan and instead physically lifted the service user, who was unable to weight bear. This conduct was reported by a care assistant, who also described the Appellant's general approach as "rough", "abrupt" and "brusque". Following an investigation, the Appellant was suspended and subsequently dismissed after a disciplinary hearing found the allegations proven.

The Appellant lodged an appeal on 7 November 2022 challenging the DBS decision to bar her. Permission to appeal was granted by the Upper Tribunal on 23 May 2024 on the basis that the DBS may have made mistakes of fact. The full appeal was heard on 1 November 2024 before HHJ Simon Oliver and two Upper Tribunal members.

An anonymity order was made to protect the identities of the Appellant, the service users, and other involved persons due to the sensitive nature of the case.

Legal Issues Presented

1. Whether the DBS made a material mistake of fact in deciding to include the Appellant on the barred lists under paragraphs 9 and 10 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.
2. Whether the Appellant's denial of wrongdoing was credible such that the Upper Tribunal should overturn the DBS's decision.
3. The extent to which the Upper Tribunal may reassess evidence and make findings of fact in appeals against DBS barring decisions.
4. Whether the evidence before the DBS was sufficiently reliable and corroborated to justify the barring decision.

Arguments of the Parties

Appellant's Arguments

• The incident was a single, isolated event with no prior complaints or corroborating evidence beyond the unverified statement of one care assistant.
• The Appellant admitted awareness of the care plan and remorse but explained that the hoist was new and she was not trained to use it, leading to confusion.
• The Appellant denied lifting the service user alone, asserting the lift was done jointly with the care assistant.
• Assertions of rough handling were unsupported by evidence and had not been put to the Appellant.
• The Appellant's professional record showed no prior disciplinary issues or complaints, indicating responsible conduct overall.
• The decision to bar was disproportionate given the weaknesses in evidence and lack of harm caused.

Respondent's Arguments

• The DBS did not make any material mistake of fact; its findings were reasonably open on the balance of probabilities based on the evidence before it.
• The Appellant admitted not using the hoist as required, and the DBS found the care assistant's evidence credible.
• The DBS rejected the Appellant's denial that she lifted the service user alone, relying on the care assistant's consistent descriptions.
• The term "headlock" was not accepted as accurate and was not a basis for the decision.
• The Appellant's inconsistent statements about prior conduct justified the conclusion she had previously failed to use the hoist.
• The Appellant's explanation of confusion over new equipment was not credible and did not excuse the breach of the care plan.
• While no formal previous complaints were found, the disciplinary process revealed other concerns about the Appellant's practice.
• The DBS maintained that the Appellant's conduct endangered a vulnerable adult and justified inclusion on the barred lists.
• If the Upper Tribunal found any mistake of fact, the DBS invited a remittal for reconsideration, with the Appellant to remain barred pending that decision.

Table of Precedents Cited

Court's Reasoning and Analysis

The Tribunal carefully considered the statutory framework governing inclusion on barred lists, focusing on discretionary barring based on "relevant conduct" under paragraphs 9 and 10 of Schedule 3 to the 2006 Act. It emphasised that the appeal jurisdiction is limited to identifying material mistakes of fact or law made by the DBS, not reassessing the appropriateness of the barring decision itself.

The Tribunal reviewed extensive evidence, including oral testimony from the Appellant and documentary materials. It found significant issues with the credibility and reliability of the sole witness for the DBS, the care assistant who reported the incident. The Tribunal questioned the plausibility of certain allegations, such as the care assistant's claim that the Appellant lifted the service user by her underwear, and found no independent corroboration or CCTV evidence supporting the DBS's conclusions.

While the Appellant admitted not using the hoist, the Tribunal found that the manner in which the DBS relied on the care assistant's evidence to conclude rough or brusque handling was not sufficiently supported by reliable evidence and thus constituted a material mistake of fact. The Tribunal also noted the absence of prior complaints or disciplinary issues over the Appellant's lengthy career, which undermined the DBS's assertion of a pattern of misconduct.

Given these findings, the Tribunal concluded that the DBS had made material mistakes of fact that were likely to have influenced the barring decision. Considering the passage of time since the incident and the nature of the case as a one-off event, the Tribunal determined that it was appropriate to direct the removal of the Appellant from both barred lists rather than remit the matter for reconsideration.

Holding and Implications

The Upper Tribunal ALLOWED the appeal in full and directed the Disclosure and Barring Service to remove the Appellant's name from both the Adults' and Children's Barred Lists.

The direct effect of this decision is the immediate removal of the Appellant from the barred lists, restoring her status with respect to regulated activity involving vulnerable adults and children. The Tribunal did not set any new legal precedent but applied established principles concerning the limited scope of appeals against DBS barring decisions and the necessity of material mistakes of fact to justify overturning such decisions.