“4 Appeals (1) An individual who is included in a barred list may appeal to the [UT] against– (a) […] (b) a decision under [paragraph 2, 3, 5, 8, 9 or 11] of [Schedule 3] to include him in the list; (c) […] (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 [UT]. (5) Unless the [UT] finds that [the DBS] has made a mistake of law or fact, it must confirm the decision of [the DBS]. (6) If the [UT] finds that [the DBS] has made such a mistake it must– (a) direct [the DBS] to remove the person from the list, or (b) remit the matter to [the DBS] for a new decision. (7) If the [UT] remits a matter to [the DBS] under subsection (6)(b)– (a) the [UT] may set out any findings of fact which it has made (on which [the DBS] must base its new decision); and (b) the person must be removed from the list until [the DBS] makes its new decision, unless the [UT] directs otherwise.”
“24. In deciding this appeal, we have taken into account all of the documentary material before us including the written arguments contained in the DBS’s response to the appeal and the appellant’s reply to the response. We have taken into account all of what was said at the hearing including the oral evidence of the appellant and the oral submissions of the two representatives. As is clear from what has been said above, this was purely an error of fact case. The appellant’s position was that the DBS had made a mistake of fact in concluding that she had stolen money from RV and that that was a fact on which the decision to include her in the Adults Barred List was based. The DBS position was that its finding as to theft was correct so that there had been no mistake of fact at all. 25. In asking ourselves whether the DBS has made the mistake of fact as alleged, we have reminded ourselves that it is not enough that the Upper Tribunal would have made different findings (see paragraph 38 of PF). We have reminded ourselves of what was said by the Court of Appeal in AB, cited above, with respect for the need to distinguish findings of fact from value judgments. But here, we are dealing with straightforward facts rather than inferences or evaluations of any sort. 26. We have, in considering whether the DBS has made a mistake of fact, had the benefit of all of the documentary evidence which was before it and which was properly and fully disclosed pursuant to the Upper Tribunal’s directions. We have had, in addition to that, the valuable benefit of hearing oral evidence from the appellant and of having that evidence tested by way of cross-examination and probed by further questions asked by the Upper Tribunal’s panel members. We have had the valuable benefit of hearing oral submissions as to the issue from the two representatives as well as written arguments in the response and reply referred to above. As already noted, we are not restricted to a consideration of the material which was before the DBS when it made its findings of fact and its decision (see paragraphs 42 and 51(c) of the decision of the Upper Tribunal in PF). We have the DBS reasoning as set out in its decision letter before us and we have taken account of it for what it is worth in the context of the evidence as a whole (see paragraph 49 of PF). We acknowledge the DBS’s experience in fact-finding but, given the circumstances obtaining in this appeal, we have noted the comments of the Upper Tribunal in PF to the effect that it is doubtful “that the DBS has much to teach judges about assessing hearsay evidence or about drawing inferences, both of which are well within the range of skills deployed by judges in all courts and tribunals at all levels” (paragraph 48 of PF). But we do bear in mind that aspects of the DBS’s reasoning may assist us in making our own assessment of the evidence which is before us and which, as we have already said, is now a fuller body of evidence than that which was before the DBS. We have borne in mind that it is for the appellant to show, to a balance of probabilities, that the DBS has made a mistake of fact. 27. Having heard from the appellant we have undertaken an assessment as to her credibility. In doing so, although we have set out the various matters which we have taken into account sequentially (which of course is inevitable) we wish to stress that we have considered all the factors below, together, as one composite whole, prior to reaching a view as to credibility and prior to deciding whether, in making the findings it did, the DBS made a mistake as to fact. 28. We were impressed by the claimant’s oral evidence. It was, in our judgment, given in what was largely a clear and straightforward manner. We did not detect any internal inconsistencies in the oral evidence nor any inconsistencies with her written evidence as set out in her written statement. Further, Mr Serr did not expose any such inconsistencies in his cross-examination nor did he point us to any such inconsistencies in his closing submissions. None of that, of itself, means that the appellant was telling us the truth. But it points, when taken along with other factors, to a conclusion that she might well have been. 29. The appellant has been steadfast, throughout the disciplinary proceedings brought by employer B, the DBS investigation and these proceedings, regarding her innocence. Of course, it might be said that she is simply a consistent and determined liar. But we do give her a degree of credit for her consistent denials over a protracted period. We appreciate that the specific allegation that RV was paying persons for sexual services was not (on our scrutiny of the papers) made prior to police involvement or was, in any event, made at a relatively late stage. But the allegation is not out of line in any sense with the appellant’s earlier assertions as to general financial irresponsibility and we do not think the specific allegation of paying for sexual services takes matters very much further or significantly buttresses the appellant’s case anyway. We do not conclude, therefore, that it was an artificial embellishment made to falsely enhance her prospects of success either in resisting a criminal prosecution or in succeeding in these proceedings. 30. The appellant has been employed as a support worker and/ or keyworker since 2001 or 2002. It seems to have been accepted by the DBS that there is no evidence of any other similar complaints touching upon alleged dishonesty, having been made against her in the course of that employment. She told us that there had been no such complaints and she told us that she had not, apart from the police investigation involving the allegations of financial irregularities concerning RV, been involved in any other police investigations regarding dishonesty. Such was unchallenged or not seriously challenged and we accept all of that. Of course, it is always possible that a person of previous good character will find themselves tempted into offending for personal gain. We keep that possibility in mind. But, nevertheless, we think that the appellant would have had opportunities to financially exploit people over a number of years had she wished to. Against that background we take the view that her previous good record makes it less likely that she has stolen money from RV. 31. There is, in our view, a lack of reliable direct evidence pointing to the appellant having stolen money from RV. We do accept, as Mr Serr points out in closing submissions, that RV did indicate that the claimant had stolen money from him. The written material provided by the police (see page 99 to 103 of the Upper Tribunal’s appeal bundle) indicates that he had “confirmed the allegation made by the third party”
“During oral submissions there was some debate about the meaning to be attributed to the phrase ‘a mistake . . . in any finding of fact’ within section 4(2)(b) of the Act. I can see no reason why the subsection should be interpreted restrictively. In my judgment the Upper Tribunal has jurisdiction to investigate any arguable alleged wrong finding of fact provided the finding is material to the ultimate decision.”
“90. On his appeal to the UT JHB did not challenge either the facts underlying the conviction or finding 1….. This was a case in which the UT heard very limited evidence from JHB, for example, that he had not been interviewed by the police about the allegation on which finding 3 was based. The UT does not seem to have heard much evidence which had a direct bearing on the matters on which the DBS relied in making findings 2 and 3, let alone any significant evidence. 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. … 92. The UT began its consideration of finding 2 by announcing that the DBS 'made a mistake with this finding'. The UT did not, in paragraphs 9-19, explain in what way finding 2 was 'wrong', or outside 'the generous ambit within which reasonable disagreement is possible'. Its approach, rather, was to look at very substantially the same materials as the DBS, and to make its own findings of fact ('These are our findings'). Those findings were different from the DBS's assessment of those materials. I infer that what the UT meant when it referred to a 'mistake' in the first sentence of paragraph 9 was that the DBS had a mistaken view of the facts because the UT happened to differ from the DBS in its assessment of the same or very nearly the same materials. 93. … On the authorities, a disagreement about the evaluation of the evidence is not ‘an error of fact’. In my judgment the material considered by the DBS did permit such a finding on the balance of probabilities. If such a finding was open to the DBS on the balance of probabilities, the DBS did not make a mistake in coming to that finding. … 95. … It seems to me that the UT understood the DBS’s reliance on paragraph 2 of Volpi v Volpi as a submission that, in order to show that there has been ‘a mistake of fact’ it is necessary to show that there was no evidence to support that finding, or that it was irrational. I agree with the UT that if that were the position, section 4(2)(b) would be redundant. But, in my judgment, that is not the position on an appeal such as this, for two reasons. First, a finding may be ‘wrong’ for this purpose, even if there was some evidence to support it, or it was not irrational, as the reasoning in Indrakumar and Subesh shows. Second, a finding may also be ‘wrong’ for the purposes of section 4(2)(b) if it is a finding about which the UT has heard evidence which was not before the DBS, and that new evidence shows that a finding by the DBS was wrong, as the UT itself explained in PF (see paragraphs 63-65, above). I agree with the UT that Volpi v Volpi is not, in one respect, directly relevant to appeals under section 4 of the SGVA. Volpi v Volpi was an appeal from a court. As the UT in PF and in this case correctly understood, these are appeals from an administrative decision-maker, not from a court. That means that Ladd v Marshall does not apply to these appeals, so that, in an appropriate case, the UT can hear relevant evidence which was not before the DBS. Volpi v Volpi and Subesh, both of which concern appeals from courts or tribunals, are nevertheless relevant, however, to an appeal such as this, because they explain the extent of an appeal court’s powers on a factual appeal, and thus, in this different context, what it means to make a mistake in a finding of fact.”
“26. Ms Patry submitted that the words which I have italicised in paragraph 92 of the judgment of Elisabeth Laing LJ [“the generous ambit within which reasonable disagreement is possible”], while not departing from PF, “clarified it authoritatively”
“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 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.”
“There is a danger of allowing people to turn up and say they are credible. The distinction on the case law is that those people may not give any new evidence – someone has already said everything [in writing], then they come on the day and they give oral evidence and the UT believes them.”
‘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. …’
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