JO v The Disclosure and Barring Service

1. The decision of the Upper Tribunal is to allow the appeal.

2. The case is remitted to the DBS for a fresh decision.

3. The DBS are directed to keep the appellant on the lists pending the making of a new decision. REASONS FOR DECISION Introduction

1. This is the Appellant’s appeal against the Disclosure and Barring Service’s (DBS from now on) final decision, dated 17 May 2024 [10-14] to include him on both the Adults’ and Children’s Barred List under Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (‘ the 2006 Act ’).

2. The appellant was granted permission on 25 October 2024 [208-212] to appeal, on the grounds that it was arguable that the DBS had made a mistake of fact and that the decision to place the Appellant on the Adults’ Barred List and Children’s Barred list was disproportionate. The appeal is opposed by the Respondent.

3. There is no dispute that JO met the criteria for regulated activity under the relevant provisions of the Safeguarding Vulnerable Groups Act 2006 (‘the SVGA’) by reason of his role as a Healthcare Assistant with SW residential care home (referred to as ‘the care home’ from now on.

4. The appellant lodged an appeal with the Upper Tribunal on 1 July 2024 [2-9].

5. We held an in-person hearing at Field House, London which the Appellant attended – he was not represented. We heard oral evidence from the Appellant and had a witness statement from a former colleague of his who we shall refer to as ‘ES’. We had an electronic bundle of documents and references in [ ] are to the page number in the bundle. We had a skeleton argument and a bundle of authorities from the Respondent. The Appellant had a hard copy of both.

6. This was a private hearing. We refer to the Appellant as “JO” or “the Appellant” throughout in order to preserve his privacy and anonymity. For that same reason, we make the rule 14 Order included at the head of this decision and will refer to other individuals by initials only. Preliminary matters

7. The appellant had submitted by email on the Friday before this hearing on the Monday some additional documentation – that consisted of, his own written submissions, a statement from a colleague who had worked with him (ES) and an email form the NHS confirming an application for a role with them had been withdrawn. Those were sent to the DBS’ representative and added to the Tribunal’s bundle.

8. In the appellant’s written submissions he disclosed that he was still awaiting a trial in the criminal proceedings which related to the primary allegation in this appeal. Neither the tribunal nor the DBS were aware prior to that that a prosecution had been pursued. At the start of the hearing the panel clarified with the Appellant the status of the criminal proceedings and he told us that a date for trial had been fixed for February 2026. We explained to him that he could ask us not to proceed with the Tribunal proceedings given there was a risk that evidence taken in this hearing could incriminate him in the criminal proceedings and we gave him the opportunity to go and take advice from the solicitors representing him in the criminal proceedings. The appellant declined that opportunity and made it clear that he wished to proceed with the appeal.

9. As the Appellant was representing himself we took his oral evidence by allowing him to read out his statement [222 226] and by the Tribunal panel asking questions before he was cross- examined by the DBS’ counsel. Legal Framework

10. There are several ways under Schedule 3 to the 2006 Act in which a person may be included on one or other of the two barred lists. This appeal is concerned with discretionary barring. This may be on the basis of either an individual’s “relevant conduct” – in effect their past behaviour – (paragraphs 9 & 10) or the risk of harm they pose now and for the future (paragraph 11). This appeal concerns the former of those two discretionary routes to barring. The basis for a “relevant conduct” barring decision

11. Paragraphs 9 and 10 of Schedule 3 to the 2006 Act deal with behaviour or “relevant conduct” in relation to adults and are in issue in the present case. So far as is relevant, they provide as follows:

9. (1) This paragraph applies to a person if— (a) it appears to DBS that the person — (i) has (at any time) engaged in relevant conduct, and (ii) is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults, and (b) DBS proposes to include him in the adults’ barred list. (2) DBS must give the person the opportunity to make representations as to why he should not be included in the adults’ barred list. (3) DBS must include the person in the adults’ barred list if— (a) it is satisfied that the person has engaged in relevant conduct, (aa) it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults, and (b) it is satisfied that it is appropriate to include the person in the list.

10. (1) For the purposes of paragraph 9 relevant conduct is— (a) conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult; (b) conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him; ... (2) A person's conduct endangers a vulnerable adult if he— (a) harms a vulnerable adult, (b) causes a vulnerable adult to be harmed, (c) puts a vulnerable adult at risk of harm, (d) attempts to harm a vulnerable adult, or (e) incites another to harm a vulnerable adult. Rights of appeal

12. An individual’s appeal rights against a DBS barring decision are governed by section 4 of the 2006 Act :

4. (1) An individual who is included in a barred list may appeal to the Upper Tribunal against— (a) … (b) a decision under paragraph 2, 3, 5, 8, 9 or 11 of Schedule 3 to include him in the list; (c) a decision under paragraph 17, 18 or 18A of that Schedule not to remove him from the list. (2) An appeal under subsection (1) may be made only on the grounds that DBS has made a mistake— (a) on any point of law; (b) in any finding of fact which it has made and on which the decision mentioned in that subsection was based. (3) For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact. (4) An appeal under subsection (1) may be made only with the permission of the Upper Tribunal. (5) Unless the Upper Tribunal finds that has made a mistake of law or fact, it must confirm the decision of DBS. (6) If the Upper Tribunal finds that DBS has made such a mistake it must— (a) direct DBS to remove the person from the list, or (b) remit the matter to DBS for a new decision. (7) If the Upper Tribunal remits a matter to DBS under subsection (6)(b)— (a) the Upper Tribunal may set out any findings of fact which it has made (on which DBS must base its new decision); and (b) the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise. Caselaw

13. In Disclosure and Barring Service v AB [2021] EWCA Civ 1575 [2022] 1 WLR 1002 (DBS v AB) the Court of Appeal considered the respective roles of the Upper Tribunal and the DBS. In particular: [43] By way of preliminary observation, the role of the Upper Tribunal on considering an appeal needs to be borne in mind. The Act is intended to ensure the protection of children and vulnerable adults. It does so by providing that the DBS may include people within a list of persons who are barred from engaging in certain activities with children or vulnerable adults. The DBS must decide whether or not the criteria for inclusion of a person within the relevant barred list are satisfied, or, as here, if it is satisfied that it is no longer appropriate to continue to include a person's name in the list. The role of the Upper Tribunal on an appeal is to consider if the DBS has made a mistake on any point of law or in any finding of fact. It cannot consider the appropriateness of listing (see section 4(3) of the Act ). That is, unless the decision of the DBS is legally or factually flawed, the assessment of the risk presented by the person concerned, and the appropriateness of including him in a list barring him from regulated activity with children or vulnerable adults, is a matter for the DBS.

14. At Paragraph 54 there was a warning that the UT could not simply remake a decision with which it disagreed. And at paragraph [55] of Lewis LJ made the following observations on the nature of the findings of fact made by the Upper Tribunal: [55]. The Upper Tribunal also made findings of fact and made comments on other matters. Section 4(7) of the Act provides that where the Upper Tribunal remits a matter to the DBS it "may set out any findings of fact which it has made (on which DBS must base its new decision)". It is neither necessary nor feasible to set out precisely the limits on that power. The following should, however, be borne in mind. First, the Upper Tribunal may set out findings of fact. It will need to distinguish carefully a finding of fact from value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness. The Upper Tribunal may do the former but not the latter. By way of example only, the fact that a person is married and the marriage subsists may be a finding of fact. A reference to a marriage being a "strong" marriage or a "mutually supportive one" may be more of a value judgment rather than a finding of fact. A reference to a marriage being likely to reduce the risk of a person engaging in inappropriate conduct is an evaluation of the risk. The third "finding" would certainly not involve a finding of fact. Secondly, an Upper Tribunal will need to consider carefully whether it is appropriate for it to set out particular facts on which the DBS must base its decision when remitting a matter to the DBS for a new decision. For example, Upper Tribunal would have to have sufficient evidence to find a fact. Further, given that the primary responsibility for assessing the appropriateness of including a person in the children's barred list (or the adults' barred list) is for the DBS, the Upper Tribunal will have to consider whether, in context, it is appropriate for it to find facts on which the DBS must base its new decision.’

15. There is also the guidance of the Upper Tribunal (Farbey J, Upper Tribunal (UT) Judge Jacobs and UT Specialist Member Ms Joffe) in PF v Disclosure and Barring Service [2020] UKUT 256 (AAC) ; [2021] AACR 3: [39] There is no limit to the form that a mistake of fact may take. It may consist of an incorrect finding, an incomplete finding, or an omission. It may relate to anything that may properly be the subject of a finding of fact. This includes matters such as who did what, when where and how. It includes inactions as well as actions. It also includes states of mind like intentions, motives and beliefs. And at: [49] We prefer to avoid talking in terms of respect, or in terms of the starting point for the tribunal’s consideration beyond saying that an appellant must demonstrate a mistake of law or fact. We put it like this. The DBS’s reasoning will be before the Upper Tribunal and the tribunal will take account of it for what it is worth in the context of the evidence as a whole. At one extreme, it may be of little assistance. If the tribunal has received significant further evidence (such as oral evidence that would not have been available to the DBS), it is likely that its evaluation of the evidence that was before it will have been overtaken so that the only appropriate approach will be for the Upper Tribunal to begin afresh. At the opposite extreme, it may play a significant role. And they concluded as follows: Summary [51] Drawing the various strands together, we conclude as follows: a) In those narrow but well-established circumstances in which an error of fact may give rise to an error of law, the tribunal has jurisdiction an error of fact may give rise to an error of law, the tribunal has jurisdiction to interfere with a decision of the DBS under section 4(2) (a). b) In relation to factual mistakes, the tribunal may only interfere with the DBS decision if the decision was based on the mistaken finding of fact. This means that the mistake of fact must be material to the decision: it must have made a material contribution to the overall decision. c) In determining whether the DBS has made a mistake of fact, the tribunal will consider all the evidence before it and is not confined to the evidence before the decision-maker. The tribunal may hear oral evidence for this purpose. d) The tribunal has the power to consider all factual matters other than those relating only to whether or not it is appropriate for an individual to be included in a barred list, which is a matter for the DBS ( section 4(3) ). e) In reaching its own factual findings, the tribunal is able to make findings based directly on the evidence and to draw inferences from the evidence before it. f) The tribunal will not defer to the DBS in factual matters but will give appropriate weight to the DBS’s factual findings in matters that engage its expertise. Matters of specialist judgment relating to the risk to the public which an appellant may pose are likely to engage the DBS’s expertise and will therefore in general be accorded weight. g) The starting point for the tribunal’s consideration of factual matters is the DBS decision in the sense that an appellant must demonstrate a mistake of law or fact. However, given that the tribunal may consider factual matters for itself, the starting point may not determine the outcome of the appeal. The starting point is likely to make no practical difference in those cases in which the tribunal receives evidence that was not before the decision-maker.

16. In AB v DBS [2022] UKUT 134 (AAC) the Upper Tribunal considered the competing arguments in AB v DBS [2021] EWCA Civ 1575 and PF v DBS:

45. The question is then where this all leaves the Upper Tribunal in practical terms in the exercise of its appellate jurisdiction in safeguarding cases.

46. On the one hand, the Court of Appeal has stated that “the assessment of the risk presented by the person concerned… is a matter for the DBS” (DBS v AB at paragraph [43]).

47. On the other hand, in cases in which the DBS relies on a risk of harm under paragraph 5 of Schedule 3, rather than ‘relevant conduct’ under paragraph 3, the Upper Tribunal may have to determine as a question of fact whether a person “may—(a) harm a child, (b) cause a child to be harmed, (c) put a child at risk of harm” (etc) (see paragraph 5(4)).

48. There is, in our view, a way of squaring this circle while respecting both Court of Appeal authority and the primacy of statute (and in particular section 4(1) to (3) of the 2006 Act ). We return to the ambiguity we identified in the passage from DBS v AB discussed at paragraph 34 above. We are satisfied that the Court of Appeal was saying no more than that the element of the risk assessment which is part and parcel of the assessment of appropriateness for the purposes of deciding whether to place the individual on a barred list is non-appealable. This reading is consistent with the fact that any decision taken under paragraph 5 of Schedule 3 – which, as we have seen, necessarily includes some findings as to risk – to include an individual on the Children’s Barred List is undoubtedly appealable (see section 4(1) (b)). To that extent we do agree with Mr Geering.

49. In this context, however, we make a distinction between (i) deciding as a matter of fact whether a person poses a risk; and (ii) deciding on the level of the risk posed by way of a risk assessment. Concluding that they could make findings about the risk issues which were findings of fact whereas findings on the level of risk were not.

17. We also bear in mind the analysis of the Upper Tribunal panel in the recent decision of EB v Disclosure and Barring Service [2023] UKUT 105 (AAC) and particularly the discussion at paragraphs [13]-[36]. In that case the Upper Tribunal concluded as follows:

35. However, where an appellant wishes to give evidence at an oral hearing and the Upper Tribunal accedes to that request, which it will do if the appellant has an arguable case and it appears unlikely that disputes of fact will fairly be resolved without such evidence being admitted, it may make its own findings of fact, in which case it will allow the appeal if its findings are materially different from those made by DBS, in the sense that they would or might lead to a different conclusion as to the appropriateness of including the appellant in the relevant List(s). We do not consider it necessary for the Upper Tribunal to identify an error in DBS’s reasoning, but it must explain why it reaches a different conclusion and that may in practice result in one or more defects being identified. If arguments of law have also been raised in such a case, the new findings may make it unnecessary to address those arguments independently, although the arguments may be relevant to the approach that the Upper Tribunal takes to the evidence. In our view, it follows that the Upper Tribunal may make different findings when it considers an appeal without an oral hearing, again without necessarily finding an error in DBS’s reasoning but explaining its own. There are therefore different ways in which an appeal may be approached.

36. Thus, the fundamental point relevant to this case is that unlike in an appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007 , it is not necessary for the Upper Tribunal to find an error of law in DBS’s fact-finding before it substitutes its own findings of fact. While the Upper Tribunal’s decision should show why it is differing from DBS on matters of fact, it is not obliged to find a defect in DBS’s reasoning; it is enough that it takes a different view of the evidence.

18. There is further guidance in DBS v JHB [2023] EWCA Civ 982 : (90) On the reasoning in PF, the decision of the DBS was therefore the starting point for the UT’s consideration of the appeal. JHB did not claim that the DBS had erred in law. The UT could not exercise any powers on the appeal, therefore, unless it identified an error of fact in the approach of the DBS to the findings of fact on which the Decision was based. Those findings were the conviction for the Offence, which JHB did not challenge, finding 1, which JHB admitted, and findings 2 and 3. Those findings of fact did not include the DBS’s assessment of the weight to given to the reports. The UT was not free to make its own assessment of the written evidence unless, and until, it found such an error. The Court of Appeal said that was impermissible, because the UT was only entitled to carry out its own evaluation of the evidence that was before the DBS if it had first identified that the DBS had made a finding which was not available to it on the evidence on the balance of probabilities.

19. The scope of the mistake of fact jurisdiction was further considered by the Court of Appeal in the recent cases of Kihembo v DBS [2023] EWCA Civ 1547 and in DBS v RI [2024] EWCA Civ 95 . The decision in Kihembo confirmed that PF v DBS remains good law. In RI v DBS Males LJ explained that the restrictive approach adopted by the Court of Appeal in JHB should be confined to those cases where the barred person does not give oral evidence at all or gives no evidence relevant to the question of whether the barred person committed the relevant act relied upon. Where the barred person does give oral evidence before the Upper Tribunal: “the evidence before the Upper Tribunal is necessarily different from that which was before the DBS for a paper-based decision. Even if the appellant can do no more than repeat the account which they have already given in written representations, the fact that they submit to cross-examination, which may go well or badly, necessarily means that the Upper Tribunal has to assess the quality of that evidence in a way which did not arise before the DBS” (per Males LJ at [55]) LW -v- DBS Case no: UA-2022-001136-V [2024] UKUT 129 (AAC)6.

20. Males LJ interpreted the scope of the Upper Tribunal’s jurisdiction under section 4(2) (b) of the 2006 Act as follows: “In conferring a right of appeal in the terms of section 4(2) (b), Parliament must therefore have intended that it would be open to a person included on a barred list to contend before the Upper Tribunal that the DBS was mistaken to find that they committed the relevant act – or in other words, to contend that they did not commit the relevant act and that the decision of the DBS that they did was therefore mistaken. On its plain words, the section does not require any more granular mistake to be identified than that” (RI v DBS, per Males LJ at [49]).

21. Bean LJ rejected the DBS’s argument that the Upper Tribunal was in effect bound to ignore an appellant’s oral evidence unless it contains something entirely new. He said in RI v DBS at [37] that: “where Parliament has created a tribunal with the power to hear oral evidence it entrusts the tribunal with the task of deciding, by reference to all the oral and written evidence in the case, whether a witness is telling the truth.” Facts

22. The findings of fact which gave rise to the Barring Decision were set out in the Respondent’s Final Decision letter of 17 May 2024 [10-14]. That letter stated as follows: "On 3 September 2023 night shift whilst working as a HCA at Shaws Wood Residential Care Home whilst providing personal care to JD a vulnerable adult you caused physical and emotional harm by - slapping him repeatedly on the arm. - attempting to pin JD's arms adown and raising you voice - rolling him with force resulting in JD legs hitting the radiator - holding a pillow over JD's face and laughing picking up the pillow and throwing it at JD's face so it covered his eyes - intimidating behaviour punching his arm and asking JD if he would like a boxing match. On 20 July 2023 whilst working as a Health Care Assistant at SW Residential Care Home you endangered vulnerable adults in your care by going to sleep on a waking night shift. Having considered this, the DBS is satisfied you engaged in relevant conduct in relation to vulnerable adults. This is because you have engaged in conduct which endangered a vulnerable adult or was likely to endanger a vulnerable adult. It is also considered that you have engaged in relevant conduct in relation to children, specifically conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him or her.”

23. JO had worked as a healthcare assistant in Nigeria for over 10 years. He had previous experience in the UK and good references from former employers [132- 136]. He had worked at the Care Home from 20 April 2023 to 2 October 2023 when he was dismissed for Gross misconduct.

24. There had been an allegation that JO had fallen asleep whilst on shift at work on 20/7/23 which was investigated by the Care Home at the time. A Senior Health Care Assistant (“SHCA”) (KF) and another HCA (JH) made statements on 21/7/23 (157-160) that when they had gone upstairs to check on JO they found him lying on cushions and a pillow, face-down on the floor with the lights off at 12:30. ( the handwritten statement from the HCA [157] appeared to have initially said 12:00 but that had been crossed out and 12:30 inserted – it was not clear when or why]. The appellant was called to a meeting on 25 July 2023 [162] to discuss the allegation which he denied. It was noted in the record of that meeting [162-163] that JO had said that he had done the ironing just before 22:00 and had done more than usual, then he had put some cushions on the floor and started watching some online modules on Social Care TV (SCTV) on his mobile phone. He said that sometime after midnight KG (that appears to be a typo and should be ‘KF’) had come upstairs and were laughing at him and said he was sleeping. He accepted that the lights were off in the kitchen and hairdressers but were on in the small sitting room but was adamant that he was not sleeping. It was noted on the record of that meeting that there had been confirmation that all JO’s jobs had been done well and that the record of the SCTV and the ironing load supported his assertions that he was not sleeping. There was a record [161] of the times when JO had accessed the SC TV online modules and that noted on 20th July 2023, he had completed a module on confidentiality at 23:05:26 getting an 80% score and a module on consent at 23:47:21 getting a 93% score.

25. The outcome of that meeting was recorded as accepting that JO should be given the benefit of the doubt that he was resting rather than sleeping and should now understand that laying down on shift was not acceptable. The outcome was noted as “ Defensive (sic) accepted NFA” which we took to mean that his defence/explanation had been accepted and that no further action was to be taken. No disciplinary sanction was imposed.

26. In his oral evidence to the Tribunal JO stated that he had been told by one of the domestic staff that KF was going to report him for sleeping and he should ‘watch his back’. He believed that he was being checked up on more than usual and was being set up for an allegation to be made against him by KF. He also said that another HCA had been caught sleeping and had been suspended for a period and then allowed to return to work.

27. On 3rd September 2023 an email was sent by LB, the night senior, that JO had behaved inappropriately with a vulnerable service user on the night shift from 2/9 to 3/9/23. Her email [46] was sent at 03:15 on the 3 rd and said: “Good morning, Sorry to email you so early but I thought the earlier I do the better. On tonight's night shift (2.9.23-3.9.23) myself and JO were giving personal care to JD room 15. JD became slightly unsettled during this as we had to get feces out of his finger nails and he began hitting out. I did try to calm him down by talking him through it which was working slightly. JO (carer) then slapped him on the arm and told him to stop, I said "don't hit him please". I carried on washing him and JD was still trying to hit out so I had to keep stopping to try to calm him down. JO (carer) slapped him two more times telling him to stop. He was trying to pin his arms down and raised his voice at him. We needed to roll JD so I could clean feces from him so JO rolled him towards him but with a force that threw his legs over the bed and hit the radiator next to his bed. When we finished personal care and was putting pillows where they needed to be, JO (carer) held the pillow over JD face and laughed hinting to hold it over his head. I took the pillow and placed it down. JO (carer) picked the pillow up and threw it so it it covered JD's eyes. I moved it again. As I was clearing up the room JO (carer) began saying "do you want a boxing match" whilst punching JD's arms not in a hurting way but an intimidating way. This didn't sit right with me at all so I needed to make you aware as l have heard a few other people have had slight problems with him.”

28. JD the service user was an elderly man, over 85 years old, and had dementia. LB was interviewed on 4 th September by two of the managers [47- 48] and gave more detail of the alleged incident. JD had been starting to become unsettled and was kicking out and throwing his arms around. LB confirmed that JO slapped JD on the left arm and told him to calm down. LB had asked JO not to do that and he had gone on to slap JD twice more each time raising his voice more. JO had pinned JD’s arms against his chest with force; when they had rolled JD together JO had done it with force so JD’s right leg went over the bed and hit the radiator next to the bed. JO had hovered the pillow over JD’s face and had been laughing and then threw the pillow on the bed so it landed on JD’s head. JO had then mimicked boxing moves and had lightly punched JD on the arm asking him if he wanted a boxing match “big man”. LB said that although JO was laughing, he had an angry look on his face. She had calmed JD down and assisted him with having a drink.

29. On that day, 4 September, a telephone call was made to JO [49] and he was told that he was suspended because of an allegation about the Saturday night shift.

30. JO appeared to have then called LB to ask her what had happened as he said he was suspended [50] but she had refused to talk to him about it.

31. JD was informally interviewed by the two managers on 4 th September and the record of that meeting [51] noted that he was muddled and found it difficult to find words to describe what might have happened but he did make punching gestures and said “punch”. There were no bruises or signs of injury and he was not displaying any signs of agitation. The note recorded that “JD has limited and fluctuating capacity, he is able to make simple decisions and is able to take part in his care planning process as long as he is given sufficient time and is able to take breaks during the process.”

32. On 4 September 2023 [52-53] the Care Home wrote to JO informing him that they were commencing an investigation into an “allegation of Physical and emotional abuse against a service user whilst delivering personal care on the morning of 03.09.23.” On the same day they made a report to the Care Quality Commission, completed an adult social care safeguarding alert form and reported the incident to the police.

33. On 8 September an investigation meeting was held with JO which was conducted by the manger of the Care Home. The notes of that meeting [90-92] recorded that JO denied slapping JD or pinning his arm to his chest, he said he had guided JD as he rolled over and he had not hit his leg on the radiator and he also denied the allegations about the pillow and the punching. He said it was only the second time that he had worked with LB but that it was lies against him and he did not know why the allegations had been made up.

34. The manager spoke to two other staff who had previously worked with JO and both said they had not witnessed him previously being heavy handed or physically aggressive towards residents. One confirmed that JD could be aggressive and staff must sometimes hold his hands or arms.[94]

35. JO was then invited to a disciplinary meeting which took place on 28 th September and was conducted by the Head of Operations (AT) [ 108-109]. JO said he was shocked at the allegations made against him and again denied all of them, he refused to accept that there could have been any misunderstanding of his actions and said the allegations were lies. He suggested that they might have been made up because LB was friends with KF who had had a problem with him over the sleeping incident.

36. After the disciplinary hearing AT had a further discussion with LB about her suggestion that others had a slight problem with JO and she said that was what had been reported to her but she denied being particular friends with KF. She confirmed that there had been no problems on the previous shift she had worked with JO and she had challenged herself as to whether she might have misunderstood what had happened but knew that she had not. [110] Having followed up on JO’s suggestion that there might have been an ulterior motive for the allegations she telephoned JO to inform him that he was dismissed for gross misconduct. And on 5 October [113] the Care Home sent JO a letter confirming his dismissal for gross misconduct.

37. In confirmation of the dismissal to the safeguarding team AT reported the reasons for dismissal as “We can confirm that the disciplinary hearing took place on Thursday 28th Sept, a decision was made to dismiss for gross misconduct, the staff member was informed of this yesterday - a referral will be made to the disclosure and barring service. The outcome from us has been shared with CQC, Kent Police and JD daughter. Whilst we recognised that JO denied all allegations and believed the whistleblower to be lying, we could find no reason for this, there was some discrepancy in his account given at the investigatory meeting and the questions posed at the hearing were found to be incorrect; we also took account of the communication between JD and the manager whereby he demonstrated punches and said punch. Therefore, on the balance of probability we felt that the whistleblower was being truthful in their account.”

38. On 30 October 2023 the DBS wrote to JO [26] informing him that they were aware of his dismissal and were considering putting him on one or both of the barred lists. On 20 March 2024 a Minded to bar letter [30] was sent to him.

39. On 1 May 2024 JO provided representations denying the allegations about sleeping on duty and giving a detailed explanation [166-172].

40. On 17 May 2024 the DBS made its final decision and concluded that it was appropriate to include JO on both the Adults’ and Children’s Barred List [10] “We are satisfied that you meet the criteria for regulated activity. This is because you were employed as a Health Care Assistant at SW Care Home We have considered all the information we hold and are satisfied of the following " On 3 September 2023 night shift whilst working as a HCA at SW Residential Care Home whilst providing personal care to JD a vulnerable adult you caused physical and emotional harm by - slapping him repeatedly on the arm. - attempting to pin JD's arms adown and raising you voice -rolling him with force resulting in JD legs hitting the radiator - holding a pillow over JD's face and laughing picking up the pillow and throwing it at JD's face so it covered his eyes - intimidating behaviour punching his arm and asking JD if he would like a boxing match. On 20 July 2023 whilst working as a Health Care Assistant at SW Care Home you endangered vulnerable adults in your care by going to sleep on a waking night shift. Having considered this, the DBS is satisfied you engaged in relevant conduct in relation to vulnerable adults. This is because you have engaged in conduct which endangered a vulnerable adult or was likely to endanger a vulnerable adult. It is also considered that you have engaged in relevant conduct in relation to children, specifically conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him or her.”

41. The DBS concluded that the allegations had been proven and that it was appropriate and proportionate to include JO on both lists. [182]

42. JO’s grounds of appeal [2] were based on a denial of the allegations and a statement that there was no credible evidence to support the findings as the Care Home had been biased against him and treated him differently from others. He also requested that his unblemished record was taken into consideration. Permission to appeal was granted [208-211] on the grounds that the DBS’ conclusions on the sleeping at work allegation appeared to go against the employer’s conclusions and also that the appellant should be given the opportunity to provide evidence of the bias he alleges there was against him and to establish whether there were any mistakes of fact. It was also considered arguable that the decision was disproportionate given his previously unblemished career.

43. In addition to JO’s oral evidence and his written statement [222-227] JO submitted a statement from his former colleague ES. She said that she had witnessed several instances of unfair treatment towards black staff members and said she thought he had been the victim of workplace politics and that the allegations against him were false and had been fabricated. Oral evidence

44. In his oral evidence at the Tribunal hearing JO maintained a consistent and absolute denial of the allegations made against him. In relation to the incident where he was alleged to have fallen asleep at work he believed that he was being set up by KF who checked on him an unusual number of times and he had been told by a member of the domestic staff that he should ‘watch his back’ as KF was going to report him for sleeping. He denied having been asleep and said that he had seen KF and JH approaching him when they came upstairs and had greeted them. He confirmed that the disciplinary investigation meeting had accepted what he had said about the amount of ironing he had done whilst upstairs and the online course he had been doing on his ‘phone whilst lying on the floor’ and had decided to give him the benefit of the doubt and take no further action.

45. Although part of JO’s case was that he was subjected to differential treatment as the only black male member of staff he did not provide any clear examples of others being treated more favourably. He told us about a female colleague (“S”) who had been accused of sleeping at work and had been suspended from work and then allowed to return – he did not think she had been subject to any disciplinary sanction but did not know the details. But he also said that she had not wanted to work upstairs because she was concerned about falling asleep and being checked up upon which suggested that spot checks were not uncommon. His belief stemmed from his perception that he was checked up on more than others and a comment from a black colleague that said she thought the spot checks were because all those on shift that night were black.

46. In relation to the incident on 2 September 2023 when giving personal care to JD he said that JD could be aggressive and disorientated when woken for personal care in the night and that he had proved to be aggressive and resistant on that night. He adamantly denied all the allegations against him and pointed to the lack of evidence of any injury to JD. When describing how he had had to hold JD’s hands to clean them JO gestured holding his fists up in front of him to demonstrate how JD had responded. But when it was put to him that it looked a little like a boxing stance and might have prompted some joking about wanting to box JO was very clear that there had been no discussion about boxing and no punching, even in jest. He accepted that he had held JD’s hands but not forcefully and said he had guided his legs as he had been turned in bed so there was no possibility that JD could have banged his legs on the radiator. He also denied the allegations of slapping, pinning him down or throwing/holding a pillow over him. He could suggest no motive for LB making up the allegations other than his belief that she was friends with KF and there were some form of workplace politics at play. Conclusions

47. The central question for us was whether the DBS made a mistake of fact in their decision to place JO on the Vulnerable Adults and Children’s Barred Lists. We have had the benefit of hearing from JO and have listened carefully to all his evidence.

48. We are satisfied that in relation to the central incident on 3 September 2023 the DBS were entitled to accept the findings of the Care Home that JO had caused physical and emotional harm to a vulnerable service user. He had denied the allegations at the time and had maintained that position throughout but there was nothing in his evidence to the Tribunal which convinced us that those findings were mistaken or that there was something missing. LB’s evidence was credible and no motive for her to fabricate the story has been established. The suggestion that she was friendly with KF, the member of staff who had accused JO of sleeping had been denied by her and was nothing more than supposition by JO. His belief that he was being treated differently, perhaps because of his colour, was not substantiated as another member of staff was also disciplined for being found asleep and we were not told that she was not black. It was not only JO who was subjected to spot checks, we heard S was also worried about being checked up on whilst working upstairs. In any event they are likely to be common practice in any care home.

49. The additional witness statement which we had from JO’s former colleague ES was a good character reference but she did not witness the interaction with JD and could only say that the allegations were inconsistent with the man she knew.

50. However in respect of the second allegation about sleeping at work we conclude that the DBS did make a mistake of law as they did not take account of the evidence accepted by the Care Home [161- 163] that JO had undertaken online training at the time when it was suggested he was found asleep, had completed a larger volume of ironing than was usual and had done all jobs well. Although the DBS noted in the BDS that the Care Home had given the benefit of the doubt and accepted that he was resting rather than sleeping [190] it refers only to the credibility of the two witness statements made against him and does not reference the other evidence which the employer took into account in deciding to take no further action and accept JO’s explanation. Those are omissions which amount to a mistake of law. Disposal

51. The relevant law is set out in section 4(5) -(7) of the 2006 Act as follows: (5) Unless the Upper Tribunal finds that DBS has made a mistake of law or fact, it must confirm the decision of DBS. (6) If the Upper Tribunal finds that DBS has made such a mistake it must— (a) direct DBS to remove the person from the list, or (b) remit the matter to DBS for a new decision. (7) If the Upper Tribunal remits a matter to DBS under subsection (6)(b)— (a) the Upper Tribunal may set out any findings of fact which it has made (on which DBS must base its new decision); and (b) the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise.

52. Section 4(5) does not apply, as we have concluded that the DBS’s decision involved relevant mistakes of fact. So, we are not obliged to confirm the DBS’s decision. Accordingly, the choice for disposal is between either directing the DBS to remove the Appellant from the Lists or remitting the matter to DBS for a new decision ( section 4(6) (a) or (b) respectively).

53. We have decided that it is appropriate to remit this appeal. T hat we are remitting just means that the DBS has to make a new decision, this time on the basis of all the facts that were before them and taking into account the matters which we found the DBS erred in law in failing to take into account. The new decision will be whether or not he should remain on the lists; the appellant should be aware that the DBS might again decide that he should be on the lists.

54. Given that we have not found any mistakes of fact in relation to the main incident and we have found only errors in respect of the lesser allegation we think it appropriate to leave the appellant on the lists until the DBS have reconsidered their decision. The DBS are therefore directed to keep the appellant on the lists until the new decision is made. Judge Fiona Monk Chamber President of the WPAFCC Sitting as a judge of the Upper Tribunal Upper Tribunal Member Suzanna Jacoby Upper Tribunal Member John Hutchinson Authorised for issue on 29 May 2025