TJO v Disclosure and Barring Service

For adult safeguarding purposes, a welfare check includes both visiting the vulnerable adult and reporting to the employer if the adult cannot be contacted or their wellbeing cannot be confirmed. Repeated failures to make contact and to report those failures may properly amount to neglect, even if an isolated failure might not do so. The Upper Tribunal’s appellate jurisdiction is confined to mistakes of law or fact underlying the barring decision. It cannot reconsider whether inclusion in the barred list is appropriate as a free-standing question. Wider evidence about the person’s previous care, good intentions or earlier concerns may be irrelevant where the appeal concerns a discrete factual finding about particular incidents.

The Disclosure and Barring Service decided on 21 December 2021 to include TJO in the adults’ barred list under paragraph 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. The decision was based on a finding that TJO neglected a vulnerable adult by failing to complete scheduled welfare calls and failing to inform her employer when she could not make contact.

Permission to appeal was granted on the grounds that DBS might have made mistakes in its factual finding, including by failing to account for TJO’s alleged attempts to perform the visits, difficulties contacting the employer, and the wider context of her care for the vulnerable adult. The central issue was whether DBS had made a mistake of fact in finding that TJO had neglected the vulnerable adult.

1. Appeal dismissed. DBS’s decision to include TJO in the adults’ barred list was confirmed.

2. Under section 4(2) of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal could interfere only if DBS had made a mistake of law or a mistake in a finding of fact on which its decision was based. Section 4(3) excluded the appropriateness of inclusion in a barred list from being treated as an independent question of law or fact.

3. The relevant welfare checks required TJO to visit the vulnerable adult twice daily to check that he was safe and well. It was an integral part of that duty to inform the employer if the adult was not well or could not be contacted. TJO completed the visits, but could not make contact on the Saturday evening, Sunday morning, Sunday evening or Monday morning. She did not communicate those failures to her employer.

4. DBS had not made a mistake in concluding that this conduct amounted to neglect. Although one failure to make contact and report might not by itself establish neglect, three successive failures had to be viewed cumulatively. By the third failure TJO ought to have sent an urgent message by email, text or the internal system, or taken another reasonable step to check on the vulnerable adult, such as looking through the front window.

5. The Tribunal accepted that TJO had previously raised concerns about the vulnerable adult’s living conditions and had assisted him. Those matters did not alter the discrete question whether DBS had correctly found neglect arising from her conduct during the relevant period.

1. Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and confirmed DBS’s decision dated 21 December 2021 to include TJO in the adults’ barred list.