CI v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal determines whether the DBS made a material mistake of fact or law. It may evaluate all the evidence to decide whether a factual finding was wrong, but it must not conduct a general merits reconsideration of whether barring is appropriate.

Conduct towards colleagues may be relevant conduct where it creates a real risk of emotional harm to vulnerable service users, including through exposure to abusive or discriminatory behaviour or reduced quality of care. Proportionality under article 8 requires an objective assessment, with appropriate weight given to DBS’s specialist safeguarding judgment. A barring decision may be proportionate where sustained harmful conduct has continued despite prior disciplinary action and the risk is not confined to registered nursing practice.

The appellant, a registered nurse formerly employed by BUPA in two care homes, appealed directly to the Upper Tribunal against the DBS decision of 28 November 2023 to include her on the adults’ and children’s barred lists.

DBS found six allegations established. They concerned intimidating and discriminatory conduct towards colleagues, inappropriate comments about service users, throwing water at a service user, and eating food intended for service users. It concluded that the conduct endangered, or was likely to endanger, vulnerable adults and would create a corresponding risk if repeated in relation to children.

The appellant denied the allegations, alleged that witnesses had conspired against her, challenged DBS’s findings of fact and contended that barring was disproportionate. She also raised whether DBS should have awaited her Nursing and Midwifery Council fitness to practise hearing.

1. Appeal dismissed. The Tribunal found no material mistake of fact or law in DBS’s decision and therefore confirmed it under section 4(5) of the Safeguarding Vulnerable Groups Act 2006.

2. The Tribunal evaluated the evidence itself on the balance of probabilities. It accepted that DBS should ordinarily take particular care before departing from an employer’s conclusions following a live disciplinary investigation. DBS’s failure expressly to acknowledge such departures was nevertheless immaterial. In each instance, the Structured Judgment Process and the wider evidence provided a sound basis for DBS’s findings.

3. The appellant’s blanket denials were not credible. The substantial number of accounts, their similar themes, and their individual variations pointed away from conspiracy. The evidence also established repeated conduct after the appellant had received a final written warning.

4. The conduct towards staff was capable of being relevant conduct for the statutory scheme. Vulnerable adults and children may suffer emotional harm when exposed to abusive, intimidating or discriminatory behaviour by carers. Poor staff relationships may also diminish the quality of care. The food-related conduct created an infection-control risk, and throwing water at a service user was plainly capable of harm.

5. The Tribunal applied the binding proportionality approach in ISA v SB [2012] EWCA Civ 977 and DBS v Harvey [2013] EWCA Civ 180. Giving appropriate weight to DBS’s safeguarding expertise, it held that continued barring struck a fair balance. The appellant’s conduct was sustained, had recurred after earlier discipline, and disclosed no insight. Employer dismissal and NMC procedures did not adequately address the risk in any caring role.

6. DBS was entitled to decide without awaiting the NMC hearing. A materially different future factual outcome could support an application for review, but did not make the existing decision unlawful.

7. The Tribunal also made a Rule 14 order protecting the identities of staff, service users and the care homes. It declined to anonymise the appellant, who did not seek anonymity, because naming her did not materially risk identification of the others once the homes were anonymised.

• Upper Tribunal (Administrative Appeals Chamber): Appeal from the Disclosure and Barring Service decision of 28 November 2023. The Tribunal dismissed the appeal and confirmed the DBS decision.