...[2024] UKUT 443 (AAC)Appeal No. UA-2022-001795-VIN THE UPPER TRIBUNALADMINISTRATIVE APPEALS CHAMBER On appeal from a decision of the Disclosure and Barring Service Between:JE Appellant - v The Disclosure and Barring Service RespondentBefore: HHJ Simon Oliver sitting as a judge of the Upper TribunalUpper Tribunal Member Ms Josephine HeggieUpper Tribunal Member Ms Suzanna Jacoby Hearing date: 1 November 2024Representation: Appellant: Mr Khan S. Ehtesham Khan Lodi Respondent: Mr Andrew Webster of counsel ANONYMITY ORDER On 5 May 2023, the Upper Tribunal made the following order, which remains in force: "Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, THE UPPER TRIBUNAL ORDERS that: No one shall, without the consent of the Upper Tribunal, publish or reveal the name or address of any of the following: (a) JE, who is the Appellant in these proceedings; (b) any of the service users mentioned in the documents or during a hearing; (c) the care assistant identified as JT in the papers; or any information that would be likely to lead to the identification of any of them or any member of their families in connection with these proceedings. Any breach of this order is liable to be treated as a contempt of court and may be punishable by imprisonment, fine or other sanctions under section 25 of the Tribunals, Courts and Enforcement Act 2007. The maximum punishment that may be imposed is a sentence of two years' imprisonment or an unlimited fine.". DECISIONThe decision of the Upper Tribunal is to allow this appeal in full and direct the DBS to remove JE's name from both the Adult and Children's Lists.REASONS FOR DECISION Introductory matters 1. This is the Appellant's appeal dated 7 November 2022 against the Disclosure and Barring Service's final decision, dated 8 August 2022, to include her on the Children's Barred List and the Adults' Barred List under the Safeguarding Vulnerable Groups Act 2006 ('the 2006 Act'). 2. We held an oral hearing of the full appeal at Field House in London on 1 November 2024. The Appellant attended in person and was represented by Mr Khan. Mr Webster of counsel appeared on behalf of the Respondent Disclosure and Barring Service (or 'the DBS'). The rule 14 Order on this appeal 3. We refer to the Appellant as JE in order to preserve her privacy and anonymity. For that same reason, we have not disturbed the rule 14 Order made by UT Judge Jacobs on 5 May 2023 and confirmed by him at the Oral Permission to Appeal hearing on 23 May 2024 and included at the head of this decision. We are satisfied that neither the Appellant nor anyone else involved should be identified in this decision, whether directly by name or indirectly. We are also satisfied more generally that any publication or disclosure that would tend to identify any person who has been involved in the circumstances giving rise to this appeal would be likely to cause serious harm to those persons. Having regard to the interests of justice, we were accordingly satisfied that it is proportionate to make the rule 14 Orders. Furthermore, to avoid the possibility of 'jigsaw identification' (by which we mean pieces of evidence might be put together to identify those concerned), we refer to the venue simply as 'the care home". A brief summary of the background to this appeal Background 4. On the 16 August 2021, Care Assistant, JT, reported that on or around the 12 August 2021, when he and JE were supporting PF with personal care JE failed to follow the correct moving and handling support for PF. JT stated that JE refused to use the hoist when supporting PF to go to bed and that she physically lifted PF from her wheelchair to her bed. PF is not able to weight bear. It is clearly stated in PF's care plan that PF must be supported with all transfers with a hoist. JE was suspended on the 16 August 2021 pending an investigation. 5. JE was interviewed the same day during which she admitted to not following the resident's care plan and that she had physically picked PF up and put her on to the bed. 6. The investigation was concluded on the 25 August 2021 with the recommendation to proceed to a disciplinary hearing, which was held on the 16 September 2021 where the allegations where considered proven and JE was dismissed. 7. The Appellant, by way of an appeal lodged on 7 November 2022, challenges the Respondent's decision of 8 August 2022 whereby the Respondent decided to include the Appellant's name on the Children's Barred List and the Adults' Barred List. Permission to Appeal 8. UT Judge Jacobs gave permission to appeal on 23 May 2024 in the following terms: "5. I have given permission under section 4(2)(b) on the ground that DBS may have made mistakes of fact. Mr Khan disclaimed any reliance on mistake of law under section 4(2)(a). 6. Mr Khan accepted that JE had not used a hoist, as required by the service user's care plan. She denies lifting the service user alone, saying that she did so jointly with JT. She denies using a headlock. She denies having handled service users in the same way previously. She says that she was confused by the service user's new chair. Mr Khan drew attention to the absence of previous complaints, JE's training record (page 47), and the absence of any investigation into the allegation of rough handling. Taking those points as a whole, I consider that there is a realistic prospect of the Upper Tribunal making findings to justify at least referring the case to DBS for reconsideration." The Evidence 9. We had a 115-page bundle of evidence, a 79 page Authorities Bundle and a skeleton Argument from both the Appellant and Respondent. The Appellant also gave evidence. The statutory framework 10. There are several ways under Schedule 3 to the 2006 Act in which a person may be included on one or other of the two barred lists. This appeal is concerned with what might be described as discretionary barring. This may be on the basis of either an individual's "relevant conduct" - in effect their past behaviour - paragraphs 9 and 10) or the risk of harm they pose now and for the future (paragraph 11). This appeal concerns the former of those two discretionary routes to barring, which we now consider in more detail. 11. Paragraphs 9 and 10 of Schedule 3 to the 2006 Act deal with behaviour or "relevant conduct" in relation to adults, and are in issue in the present case. So far as is relevant, they provide as follows:9.(1) This paragraph applies to a person if(a) it appears to DBS that the person (i) has (at any time) engaged in relevant conduct, and (ii) is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults, and (b) DBS proposes to include him in the adults' barred list. (2) DBS must give the person the opportunity to make representations as to why he should not be included in the adults' barred list. (3) DBS must include the person in the adults' barred list if (a) it is satisfied that the person has engaged in relevant conduct (aa) it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults, and (b) it is satisfied that it is appropriate to include the person in the list.10.(1) For the purposes of paragraph 9 relevant conduct is (a) conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult; (b) conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him; ... (2) A person's conduct endangers a vulnerable adult if he (a) harms a vulnerable adult, (b) causes a vulnerable adult to be harmed, (c) puts a vulnerable adult at risk of harm, (d) attempts to harm a vulnerable adult, or (e) incites another to harm a vulnerable adult. 12. An individual's appeal rights against a DBS barring decision are governed by section 4 of the 2006 Act: 4.(1) An individual who is included in a barred list may appeal to the Upper Tribunal against (a) ... (b) a decision under paragraph 2, 3, 5, 8, 9 or 11 of Schedule 3 to include him in the list; (c) a decision under paragraph 17 , 18 or 18A of that Schedule not to remove him from the list. (2) An appeal under subsection (1) may be made only on the grounds that DBS has made a mistake (a) on any point of law; (b) in any finding of fact which it has made and on which the decision mentioned in that subsection was based. (3) For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact. (4) An appeal under subsection (1) may be made only with the permission of the Upper Tribunal. (5) Unless the Upper Tribunal finds that DBS has made a mistake of law or fact, it must confirm the decision of DBS . (6) If the Upper Tribunal finds that DBS has made such a mistake it must (a) direct DBS to remove the person from the list, or (b) remit the matter to DBS for a new decision. (7) If the Upper Tribunal remits a matter to DBS under subsection (6)(b) (a) the Upper Tribunal may set out any findings of fact which it has made (on which DBS must base its new decision); and (b) the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise. 13. We highlight sub-section (3), namely that "the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact" and so, in effect, is non-appealable. The Case Law 14. In respect of mistake of fact pursuant to SVGA 2006 S.4 (2) (b) the law in this area is comprehensively set out in a series of Court of Appeal cases: AB v DBS (2021) EWCA Civ 1575; Kihembo v DBS (2023) EWCA Civ. 1574; DBS v JHB (2023) EWCA Civ 982; and DBS v RI [2024] EWCA Civ 95. In summary: (i) As approved by the Court of Appeal in DBS v RI the case of PF represents the law. (ii) The Upper Tribunal is entitled to make a finding that an appellant's denial of wrongdoing is credible, such that it is a mistake of fact to find that he/she did the impugned act. In so doing, the Upper Tribunal is entitled to hear oral evidence from an appellant and to assess it against the documentary evidence on which the DBS based its decision. That is different from merely reviewing the evidence that was before the DBS and coming to different conclusions (which is not open to the Upper Tribunal). (iii) Any mistake of fact must be material to the decision. (iv) The UT needs to distinguish carefully a finding of fact from value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness. (v) The UT should remit back if the appeal is allowed unless no other decision but removal from the Adults' Barred List and Childrens' Barred List is permissible following the UT's decision. 15. An assessment of risk however is generally speaking for the DBS and what is and is not a fact should be considered with care. In DBS v AB (2021) EWCA Civ 1575 Lewis LJ at para 55 stated: "the Upper Tribunal may set out findings of fact. It will need to distinguish carefully a finding of fact from value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness. The Upper Tribunal may do the former but not the latter. By way of example only, the fact that a person is married and the marriage subsists may be a finding of fact. A reference to a marriage being a "strong" marriage or a "mutually-supportive one" may be more of a value judgment rather than a finding of fact. A reference to a marriage being likely to reduce the risk of a person engaging in inappropriate conduct is an evaluation of the risk. The third "finding" would certainly not involve a finding of fact." 16. The appropriateness of a barring decision is not a matter for the Upper Tribunal on appeal. Unless the DBS has made either an error of law or of material fact, the Upper Tribunal may not interfere with the decision [see R v (Royal College of Nursing and Others) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin)]. Further, if it is argued that a decision to include a person on a barred list is disproportionate to the relevant conduct or risk of harm relied on by the DBS, the Upper Tribunal must afford appropriate weight to the judgement of the DBS as a body enabled by statute to decide appropriateness [see SA v SB & Royal College of Nursing [2012] EWCA Civ 977]; Disclosure and Barring Service v JHB [2023] EWCA Civ 982; Kihembo v Disclosure and Barring Service [2023] EWCA Civ 1547; and Disclosure and Barring Service v RI [2024] EWCA Civ 96 [2024] 1 WLR 4033 17. In considering the 2023 and 2024 cases in more detail, we note that in JHB (at paragraph 90) the Court confirmed that absent a finding of a mistake, the Tribunal is "not free to make its own assessment of the written evidence". The latest of the Court of Appeal's decisions is DBS v RI. In that.... The DBS is directed to remove JE's name from both the Adults' and Children's Barred Lists.HHJ Simon Oliver sitting as a judge of the Upper TribunalUpper Tribunal...