BAA v The Disclosure and Barring Service

An appeal against inclusion on the Adults Barred List succeeds where the Disclosure and Barring Service made a material mistake of fact on which its decision was based. The Upper Tribunal must assess whether the evidential basis for the disputed factual finding is sufficient on the balance of probabilities.

Where the only direct allegation was untested, the appellant’s consistently tested evidence was preferred, and the physical evidence was credibly capable of an innocent explanation, the finding of relevant conduct could not stand. The appropriate consequence was removal from the list.

The Disclosure and Barring Service included the appellant, a care worker, on the Adults Barred List after finding that she had struck an elderly resident in her care three times. It treated that alleged conduct as relevant conduct under the Safeguarding Vulnerable Groups Act 2006.

The appellant consistently denied the allegation. The appeal was permitted on the basis that there was a real prospect that the factual finding was mistaken. At the Upper Tribunal hearing, the DBS did not call the staff member who made the allegation. The central issue was whether the finding that the appellant struck the resident three times was a material mistake of fact.

1. Appeal allowed. The DBS made a material mistake of fact in finding that the appellant had punched the resident three times. The Upper Tribunal therefore directed the DBS to remove her from the Adults Barred List under the Safeguarding Vulnerable Groups Act 2006.

2. Under section 4, an appeal lies only for a mistake of law or a mistake in a factual finding on which the DBS decision was based. The finding of assault was the sole allegation relied upon in the barring letter and was therefore material to the decision.

3. The appellant’s evidence had been consistent from the employer’s investigation through to the hearing. It was tested at the hearing and remained consistent. By contrast, the only direct evidence of punching was the account of SP, who was not called by the DBS and whose account could not be tested.

4. The bruising did not sufficiently corroborate the allegation. Three alleged punches at two different locations were unlikely all to have struck precisely the same part of the resident’s body while he was resisting transfer. The bruising was credibly capable of resulting from contact with the chair, wheelchair, hoist or bed while the resident was kicking and punching during transfer.

5. The difficult relationship between SP and the appellant, including the appellant’s account that she had found SP asleep on duty, further cast doubt on SP’s statement. On the balance of probabilities there was insufficient evidence for the DBS’s factual finding.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal from the DBS barring decision dated 28 November 2023 and directed removal from the Adults Barred List.
• Disclosure and Barring Service: included the appellant on the Adults Barred List, finding that she had engaged in relevant conduct by striking a vulnerable adult.