FH v The Disclosure and Barring Service
[2024] UKUT 43 (AAC)
AA v The Disclosure and Barring Service
18 April 2024
[2024] UKUT 126 (AAC)
Upper Tribunal
A support worker was barred from working with children after an incident with a child. A court reviewed the case and said the support worker didn't actually *assault* the child, even though there was some physical contact, because she was defending herself. The case will go back to the barring service to make a new decision.
Key Facts
- •Appellant, a support worker, was involved in an incident with a 12-year-old child (L) with ADHD, oppositional defiant disorder, and ASD.
- •L spat water at the appellant, who then took his water bottle. L subsequently assaulted the appellant.
- •A witness (AD) reported seeing the appellant swing her arms, making contact with L's chest and shoulders.
- •The appellant denied assaulting L and stated she acted in self-defense.
- •The DBS included the appellant on the children's barred list based on the alleged assault and threat of future violence.
- •The appellant appealed to the Upper Tribunal, arguing mistakes of fact and disproportionality.
Legal Principles
Mistake of fact jurisdiction in appeals against DBS decisions.
Safeguarding Vulnerable Groups Act 2006, section 4(2)(b)
The Upper Tribunal can consider oral evidence and make its own findings of primary fact, even if it differs from the DBS's assessment of the evidence.
DBS v RI [2024] EWCA Civ 95
Weight given to contemporary documents versus later recollections.
Lachaux v Lachaux [2017] EWHC 385 (Fam)
Assessment of witness credibility considers truthfulness, accuracy of recollection, and potential bias.
Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403, HL
Outcomes
Appeal allowed to the extent of remittal.
The Upper Tribunal found that the DBS made a mistake of fact in finding that the appellant assaulted the child, but accepted that there was physical contact. The Tribunal found the appellant did not intend to assault L but acted in self-defense due to lack of training and a threatening situation.
Remittal to the DBS for a new decision.
The Upper Tribunal found that the appellant did not intend to assault the child but that there was physical contact during self-defense. The DBS must reconsider its decision based on this new finding.