Key Facts
- •NC filmed a vulnerable service user while asleep without consent.
- •NC shared the video with her colleague/partner.
- •Derogatory comments about the service user were exchanged.
- •The service user was unaware of the incident.
- •NC was employed as a Healthcare Assistant.
- •NC's appeal challenged the DBS's decision to include her on the Children's and Adults' Barred Lists.
- •The appeal raised issues of relevant conduct and proportionality.
Legal Principles
The appropriateness of a barring decision is not a matter for the Upper Tribunal on appeal.
R v (RCN and others) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin)
For an appeal to succeed, a material error of law or fact in the DBS decision must be shown.
PF v DBS [2020] UKUT 256 (AAC)
The Upper Tribunal must afford appropriate weight to the DBS's judgment on appropriateness.
SA v SB & RCN [2012] EWCA Civ 977
Relevant conduct includes conduct that, if repeated, would endanger a vulnerable adult or child.
Schedule 3, paragraphs 4(1)(b) and 10(1)(b) of the SVGA
Section 58 of the SVGA does not preclude the DBS from considering activities within a personal relationship when determining relevant conduct.
Section 58 of the SVGA, interpretation by the Upper Tribunal
The DBS must consider Article 8 ECHR rights but the need to safeguard vulnerable individuals can outweigh personal interests.
Article 8 ECHR, DBS Decision Letter
Outcomes
Appeal dismissed.
The DBS's decision was not based on a material error of law or fact. The conduct, while not causing harm in this instance, was deemed 'relevant conduct' due to the potential for harm if repeated, and the decision was considered proportionate.