JLA v Disclosure And Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may consider all the evidence, including oral evidence received on appeal, to determine whether the DBS made a material mistake of fact. It may make its own findings of fact, but cannot reconsider the statutory appropriateness of barring as a merits issue.

A finding that conduct is relevant conduct requires an evidential and reasoned basis showing actual or potential harm to a vulnerable adult. Where material factual findings and a legal characterisation of relevant conduct are flawed, the proper course will ordinarily be remission to the DBS for a fresh decision based on the Tribunal’s factual findings.

JLA v Disclosure And Barring Service was an appeal against the DBS decision of 6 June 2023 to include JLA, a senior care assistant, on the Adults’ Barred List under paragraph 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.

The DBS relied on two findings of relevant conduct: failures connected with a service user’s cut catheter and a breach of workplace PPE policy when JLA removed her mask for a photograph outside the care home. JLA accepted some failings concerning the catheter, but challenged findings that she had delayed, failed to act on a report of pain, and acted from indifference. She gave oral evidence before the Tribunal.

The central issues were whether the DBS had made material mistakes of fact or law on which the barring decision was based, and the consequential remedy.

1. Appeal allowed. The DBS’s first finding of relevant conduct was based on material mistakes of fact. The Tribunal accepted that JLA failed to read the care plan and failed to contact the district nurse, so that her conduct remained relevant conduct. However, it rejected the findings that she delayed before attending the service user, took no action when pain was reported, said that she could not be bothered to call the district nurse, or displayed a lack of care or concern.

2. The Tribunal was entitled to reach its own factual findings after considering all the evidence, including JLA’s tested oral evidence. The employer witnesses’ accounts were untested hearsay. The Tribunal found JLA credible, accepted that she had acted, though misguidedly, on the advice of a more experienced colleague, and accepted further mitigation concerning training, workload, remorse and her prior career.

3. The second finding, concerning removal of PPE for a photograph, was not factually disputed. Nevertheless, the DBS made a mistake of law by treating it as relevant conduct without evidence or reasons showing that it endangered, or if repeated would be likely to endanger, a vulnerable adult within paragraph 10 of Schedule 3.

4. Under section 4(6)(b) and section 4(7)(a) of the Safeguarding Vulnerable Groups Act 2006, the matter was remitted to the DBS for a new barring decision based on the Tribunal’s findings. Removal from the list was not directed because relevant conduct concerning the catheter remained admitted and established. JLA was directed to remain listed pending the fresh decision under section 4(7)(b).

5. The Tribunal did not need to decide proportionality. It nevertheless observed that the DBS must reassess necessity and fair balance on the revised facts, recognising both the safeguarding objective and the severe employment and private-life effects of barring.

• Upper Tribunal (Administrative Appeals Chamber): Allowed JLA’s appeal from the DBS decision of 6 June 2023 and remitted the matter under section 4(6)(b) of the Safeguarding Vulnerable Groups Act 2006.
• Disclosure and Barring Service: Included JLA on the Adults’ Barred List under paragraph 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.