HA v Disclosure and Barring Service
[2024] UKUT 277 (AAC)
VA v Disclosure and Barring Service
10 August 2024
[2024] UKUT 246 (AAC)
Upper Tribunal
A care worker was put on a barred list for not helping a resident in pain and seeming dismissive of the situation. A court heard the case and decided the care worker should stay on the list because the initial decision was made correctly.
Key Facts
- •VA, a senior care assistant, was included in the children's and adults' barred lists by the Disclosure and Barring Service (DBS).
- •The incident involved VA's interaction with a resident, DS (79 years old), who was masturbating.
- •A voicemail recording captured a tense exchange where DS claimed to be in pain and bleeding, while VA appeared dismissive and focused on DS's masturbation.
- •VA appealed to the Upper Tribunal, arguing mistakes in fact-finding and that the decision was disproportionate.
- •The Upper Tribunal heard oral evidence and reviewed the recording, concluding that VA ignored DS's requests for help with pain and failed to report the incident.
- •The Upper Tribunal dismissed the appeal, finding no errors of law or fact in the DBS's decision.
- •The Upper Tribunal upheld the DBS's decision to include VA in both barred lists.
Legal Principles
The Upper Tribunal's jurisdiction and powers in appeals against DBS decisions are governed by Section 4 of the Safeguarding Vulnerable Groups Act 2006 (SVGA).
Safeguarding Vulnerable Groups Act 2006
Appeals against DBS decisions can only be made on the grounds that DBS made a mistake in law or a finding of fact on which the decision was based. The decision on appropriateness is not a question of law or fact.
Safeguarding Vulnerable Groups Act 2006
The Upper Tribunal must confirm the DBS decision unless it finds a mistake of law or fact. If a mistake is found, the Tribunal can direct removal from the list or remit the matter for a new decision.
Safeguarding Vulnerable Groups Act 2006
Proportionality is considered, but the Tribunal defers to DBS's assessment of appropriateness, including consideration of Article 8 ECHR rights (right to private and family life). The four-question test from B v Independent Safeguarding Authority is applied.
B v Independent Safeguarding Authority [2013] 1 WLR 308
Outcomes
The Upper Tribunal dismissed VA's appeal.
The Tribunal found no mistakes in law or fact in the DBS's decision. While considering arguments about proportionality and VA's Convention rights, the Tribunal upheld the DBS's findings and concluded the decision was not an error of law.