AW v Disclosure and Barring Service

An appeal to the Upper Tribunal under section 4(2) of the Safeguarding Vulnerable Groups Act 2006 may succeed where the Disclosure and Barring Service made a mistake in a finding of fact on which barring depended. The Upper Tribunal may determine the facts on the balance of probabilities. A decision not to provide personal care is not necessarily a failure of care where the individual was appropriately monitored, personal care was offered, and the individual refused it. A recording error is not falsification merely because the entry is inaccurate. Where the factual findings underlying barring are mistaken, and no lawful basis for inclusion remains, the Tribunal may direct removal from the barred lists.

AW appealed against the Disclosure and Barring Service decision dated 22 August 2022 to include her in the children’s and adults’ barred lists. The decision was made under paragraphs 3 and 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006, on findings that AW had failed to provide care to two vulnerable adults and had falsified a bowel-monitoring entry.

The appeal was limited by section 4(2) to mistakes of law or mistakes in findings of fact on which the decision was based. The central issue was whether DBS’s core factual findings were established and accurately characterised.

1. Appeal allowed. The Upper Tribunal found that DBS had made mistakes in all three core factual findings on which its decision was based. The finding concerning 11 March 2021 was irrelevant because DBS accepted that it was not relied upon.
2. As to JB, AW had provided personal care throughout the night and had changed him when his pad was wet. At about 6.45 am she found the pad damp rather than entirely wet and decided not to change it because this risked waking him. That decision was rational in the circumstances and was based on her genuine, though mistaken, understanding that this approach was sanctioned by the care home. JB was not soiled at that time, and the later urine-sodden state occurred after the check.
3. As to TH, AW monitored him overnight and approached him in the morning to offer personal care. TH refused assistance from her, consistently with his known behaviour. AW could not force him to accept care. It was therefore inaccurate to characterise her conduct as failing to attend to him. The description that she failed to notice and respond to vomit was, in the circumstances found, misleading.
4. The 5.30 am bowel-monitoring entry for JB was a simple error, not falsification. The surrounding records supported that conclusion and there was no apparent reason for AW deliberately to insert a false entry.
5. The Tribunal found that oral handover occurred, although without the physical walk-round required by the care home’s procedures. That shortcoming was not AW’s fault and reflected a wider established practice known to management.
6. In light of those findings, the only decision DBS could lawfully reach was to remove AW from both barred lists. The Tribunal directed DBS to do so.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal against DBS’s decision dated 22 August 2022 and directed removal from both barred lists.