AW v Disclosure and Barring Service
[2024] UKUT 258 (AAC)
WR v Disclosure and Barring Service
26 January 2024
[2024] UKUT 30 (AAC)
Upper Tribunal
A care worker was wrongly barred from working with vulnerable people due to mistakes in how the agency interpreted their care plan. A court corrected these mistakes and sent the case back for a fair review. The care worker will remain barred until the new decision.
Key Facts
- •WR, a registered manager, was added to the children's and adults' barred lists by the Disclosure and Barring Service (DBS).
- •The DBS's decision was based on three findings of fact concerning an incident involving a service user, BB, with autism and learning disabilities.
- •The incident involved the use of a harness and a hot tub to manage BB's challenging behaviour.
- •WR was on sick leave during the incident but was found to have contributed to the staff's actions through inadequate Positive Behaviour Support Plans (PBSPs).
- •The Upper Tribunal found fundamental mistakes of fact in the DBS's findings, relating to the understanding and application of PBSPs and the status of a draft plan.
- •The Upper Tribunal remitted the matter to DBS for a new decision, directing that WR remain on the lists until the new decision is made.
Legal Principles
An appeal to the Upper Tribunal against a DBS decision can only be made on the grounds that DBS made a mistake on a point of law or in a finding of fact on which its decision was based.
Safeguarding Vulnerable Groups Act 2006 (SVGA), section 4(2)
There is no limit to the form a mistake of fact may take; it may consist of an incorrect finding, an incomplete finding, or an omission.
PF v Disclosure and Barring Service [2020] UKUT 256 (AAC), [39]
The Upper Tribunal can make its own findings of fact when remitting a matter to the DBS.
Disclosure and Barring Service v AB [2021] EWCA Civ 1575
The Upper Tribunal should limit itself to the ground on which permission to appeal was given.
Disclosure and Barring Service v JHB [2023] EWCA Civ 982 at [97]
Outcomes
The Upper Tribunal allowed the appeal.
The Upper Tribunal found fundamental mistakes of fact in the DBS's decision, specifically concerning the interpretation and application of the PBSPs and the status of a draft plan.
The matter was remitted to the DBS for a new decision.
The Upper Tribunal identified sufficient mistakes of fact to necessitate a rehearing by the DBS.
WR is to remain on the barred lists until the DBS makes its new decision.
This is a direction of the Upper Tribunal pursuant to SVGA section 4(7)(b).