"You said that two people said that they had no problem with you. This is not the case, one person said that she had only work for three weeks which was not enough time for her to formulate an opinion on you. However, that staff member also said that residents and staff complained to her about your attitude and practice. The care leader who did describe you as a valuable member of staff had all so been approached by residents and staff about you and said that she thought staff were reluctant to complain as nothing ever got done” Secondly, the DBS discounts the weight of the evidence of my current manager who confirms my excellent performance in my role as a carer, on the erroneous basis that my role did not include caring responsibilities. The DBS letter says: "
"In addition, it is unclear how your character references knew of the allegations made against you and that at least one of them concluded that it was malicious and that residents have been encouraged to complain by those carers. It would appear likely that this information was given to them by you and it’s not based on their knowledge of events. ” Four witnesses (described as character witnesses) whose statements I produced to DBS, confirm in their statements that they were colleagues who worked alongside me, some for many years, and some at the time of the alleged misconduct. One of the witnesses confirmed that one of the two residents who complained about me had subsequently made a verifiably false allegation against another member of staff. Fourthly, the DBS found, as a fact, "
‘There is no evidence that the staff colluded with each other - they were not interviewed on the same day and bringing up the same incidents that cause concern to them does not indicate collusion. It is noted that they both made the allegations on the same day, which you believe was to make a bigger impact. However even if the two staff members had talk to each other it does not mean that the allegations are automatically false. You believe that the staff presented the fact that during CO VID-19 pandemic, you had assumed leadership responsibilities by default as you were the longest serving and most experienced member of staff. You stated that you were the victim of malicious allegations which should come about because the staff who complained did not like you.’
‘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.’
‘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.’
“A. I heard from a couple of care staff, I can’t remember who it was, that she shouldn’t be given food and drink, but they were giving her food and drink, not to encourage it, I can’t remember the logic behind it, it was horrible, Q. Do you know who had given that instruction? A. I wish I did I know that some people did give food and drink, it wouldn’t of come from carer to carer and the person that was always on duty during Covid was JO. We had no other real manager in other than BLANK there was nobody really around and BLANK couldn’t leave the office as she has a heart condition and so a lot of reassurance and backup came from the admin. I don’t specifically know where it came from Q. Was it a similar scenario for the other resident receiving end of life care? A. The other lady was on and off end of life, bless her, the manager at the time .... was investigated because of pain, when she saw her family she improved immensely, but then she was put on a driver, she wasn’t very well. I’m sure her family came in. I did hear a passing comment from JO who said “God I wish they would stop feeding her and giving her fluid’’. Another time I have heard carers say well I have been told not to give her food and fluid, but I have. That lovely lady passed. I think it was a weekend, I know the day before she had a carer sat with her, she had her nails painted and I know she passed well (crying apologised for getting upset.)”
‘Although it is acknowledged that the initial allegations did not mention this specific allegation, it was referred as part of the investigation findings with the recommendation that a disciplinary hearing should take place. It would appear more likely than not that it would have been covered within any subsequent hearing.’
‘70. End of life residents are cared for in accordance with medical advice which is recorded in the residents’
‘I heard from a couple of care staff, I cant remember who it was, but that she shouldn’t be given food and drink, but they were giving her food and drink, not to encourage it, I can’t remember the logic behind it, it was horrible, Do you know who had given that instruction? I wish I did I know that some did give food and drink, it wouldn’t have come from carer to carer and the person that was always on duty during COVID was JO. We had no other real manager in other than…. There was nobody really around and X…couldn’t leave the office as he has a heart condition and so a lot of the reassurance and back up came from the Admin. I don’t specifically know where it came from…’
‘I am worried about an incident with a resident upstairs who was end of life, I was told by JO not to give her food or water because she was end of life. There was no manager available, so I gave her water and Jelly. This resident died in distress, no one else had said no food or water just JO and it wasn’t said in handover. There was another resident whose daughter kept coming in to give jelly and water and JO was cross with the daughter as the resident was end of life. This resident was called….’
‘The DBS finding that I had put full fat milk into a resident’s cup of tea (when the resident preferred semi-skimmed milk) fails to deal with my explanation that I did so, not from spite, but because there was only full fat milk available.’
‘2 (1). DBS must establish and maintain— (a). the children's barred list; (b). the adults' barred list. (2). Part 1 of Schedule 3 applies for the purpose of determining whether an individual is included in the children's barred list. (3). Part 2 of that Schedule applies for the purpose of determining whether an individual is included in the adults' barred list. (4). Part 3 of that Schedule contains supplementary provision. (5). In respect of an individual who is included in a barred list, DBS must keep other information of such description as is prescribed.’
‘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 [the 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 [the DBS] under subsection (6)(b)— (a). the 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.’ [Emphasis added]
‘102.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 sub-section 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. 103.In light of the fact that the Upper Tribunal can put right any errors of law and any material errors of fact and, further, can do so at an oral hearing if that is necessary for the fair and just disposition of the appeal I have reached the conclusion that the absence of a right to an oral hearing before the Interested Party and the absence of a full merits based appeal to the Upper Tribunal does not infringe Article 6 EHCR. To repeat, an oral hearing before the Interested Party is permissible under the statutory scheme and there is no reason to suppose that in an appropriate case the Interested Party would not hold such a hearing as Ms Hunter asserts would be the case. I do not accept that this possibility is illusory as suggested on behalf of the Claimants. Indeed, a failure or refusal to conduct an oral hearing in circumstances which would allow of an argument that the failure or refusal was unreasonable or irrational would itself raise the prospect of an appeal to the Upper Tribunal on a point of law. Further, any other error of law and relevant errors of fact made by the Interested Party can be put right on an appeal which, itself, may be conducted by way of oral hearing in an appropriate case.’
‘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.’
‘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.’
‘104.I am more troubled by the absence of a full merits based appeal but I am persuaded that its absence does not render the scheme as a whole in breach of Article 6 for the following reasons. First, the Interested Party is a body which is independent of the executive agencies which will have referred individuals for inclusion/possible inclusion upon the barred lists. It is an expert body consisting of a board of individuals appointed under regulations governing public appointments and a team of highly-trained case workers. Paragraph 1(2)(b) of Schedule 1 to the 2006 Act specifies that the chairman and members "must appear to the Secretary of State to have knowledge or experience of any aspect of child protection or the protection of vulnerable adults." The Interested Party is in the best position to make a reasoned judgment as to when it is appropriate to include an individual's name on a barred list or remove an individual from the barred list. In the absence of an error of law or fact it is difficult to envisage a situation in which an appeal against the judgment of the Interested Party would have any realistic prospect of success. Second, if the Interested Party reached a decision that it was appropriate for an individual to be included in a barred list or appropriate to refuse to remove an individual from a barred list yet that conclusion was unreasonable or irrational that would constitute an error of law. I do not read section 4(3) of the Act as precluding a challenge to the ultimate decision on grounds that a decision to include an individual upon a barred list or to refuse to remove him from a list was unreasonable or irrational or, as Mr. Grodzinski submits, disproportionate. In my judgment all that section 4(3) precludes is an appeal against the ultimate decision when that decision is not flawed by any error of law or fact.’
‘67. The context, and the nature of the statutory scheme, is that it creates a system for the protection of children and vulnerable adults. It provides for an independent body, the DBS, to determine whether specified criteria are met and, in the case of paragraph 3 of Schedule 3 to the Act, that it is appropriate to include a person's name in the children's barred list or the adults' barred list. There is a safeguard for individuals in that they may appeal to the Upper Tribunal on the basis that the DBS has made an error of law or fact. The Upper Tribunal cannot consider the appropriateness of the decision to include or retain the person's name in a barred list when deciding if the DBS had made such an error. If the DBS has not made an error of law or fact, the Upper Tribunal must confirm the decision of the DBS (section 4(5) of the Act). Only if the DBS has made an error of law or fact, can the Upper Tribunal determine whether to remit or direct removal of the person's name from the list (section 4(6) of the Act). 68.The scheme as a whole appears, therefore, to contemplate that the DBS is the body charged with decisions on the appropriateness of inclusion of a person within a barred list. The power in section 4(6) of the Act needs to be read in that context. The context would not readily indicate that the Upper Tribunal is intended to be free to decide for itself questions concerning the appropriateness of inclusion of a person in a barred list. It is unlikely, therefore, that section 4(6) of the Act was intended to give the Upper Tribunal the power to direct removal because it, the Upper Tribunal, thinks inclusion on the list is no longer appropriate. It is more consistent with the statutory scheme that the power is to be exercised when the only decision that the DBS could lawfully make would be to remove the person from the barred list.’
‘16.The ISA is an independent statutory body charged with the primary decision making tasks as to whether an individual should be listed or not. Listing is plainly a matter which may engageArticle 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Article 8 provides a qualified right which will require, among other things, consideration of whether listing is "necessary in a democratic society" or, in other words, proportionate. In R (Quila) v Secretary of State for the Home Department[2011] 3 WLR 836 , Lord Wilson summarised the approach to proportionality in such a context which had been expounded by Lord Bingham in Huang v Secretary of State for the Home Department[2007] 2 AC 167 (at paragraph 19). Lord Wilson said (at paragraph 45) that: "… in such a context four questions generally arise, namely: (a) is the legislative object sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; and (d) do they strike a fair balance between the rights of the individual and the interests of the community?" There, as here, the main focus is on questions (c) and (d). In R (SB) v Governors of Denbigh High School[2007] 1 AC 100 Lord Bingham explained the difference between such a proportionality exercise and traditional judicial review in the following passage (at paragraph 30): "There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test … The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time … Proportionality must be judged objectively by the court …" 17. All that is now well established. The next question – and the one upon which Ms Lieven focuses – is how the court, or in this case the UT, should approach the decision of the primary decision-maker, in this case the ISA. Whilst it is apparent from authorities such as Huang and Quila that it is wrong to approach the decision in question with "deference", the requisite approach requires "… the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice." Per Lord Bingham in Huang (at paragraph 16) and, to like effect, Lord Wilson in Quila (at paragraph 46). There is, in my judgment, no tension between those passages and the approach seen in Belfast City Council v Miss Behavin' Ltd[2007] UKHL 19 which was concerned with a challenge to the decision of the City Council to refuse a licensing application for a sex shop on the grounds that the decision was a disproportionate interference with the claimant's Convention rights. Lord Hoffmann said (at paragraph 16): "If the local authority exercises that power rationally and in accordance with the purposes of the statute, it would require very unusual facts for it to amount to a disproportionate restriction on Convention rights." Lady Hale added (at paragraph 37): "Had the Belfast City Council expressly set itself the task of balancing the rights of individuals to sell and buy pornographic literature and images against the interests of the wider community, the court would find it hard to upset the balance which the local authority had struck." These passages are illustrative of the need to give appropriate weight to the decision of a body charged by statute with a task of expert evaluation. ……. 22. This brings me to two particular points. First, there is the fact that, unlike the ISA, the UT saw and heard SB giving evidence. However, it cannot be suggested that it was unlawful for the ISA not to do so. It had had at its disposal a wealth of material, not least the material upon which the criminal conviction had been founded and which had informed the sentencing process. The objective facts were not in dispute. Secondly, Mr Ian Wise QC, on behalf of the Royal College of Nursing, emphasises the fact that the UT is not a non-specialist court reviewing the decision of a specialist decision-maker, which would necessitate the according of considerable weight to the original decision. It is itself a specialist tribunal. Whilst there is truth in this submission, it has its limitations for the following reasons: (1) unlike its predecessor, the Care Standards Tribunal, it is statutorily disabled from revisiting the appropriateness of an individual being included in a Barred List, simpliciter; and (2) whereas the UT judge is flanked by non-legal members who themselves come from a variety of relevant professions, they are or may be less specialised than the ISA decision-makers who, by paragraph 1(2) of schedule 1 to the 2006 Act "must appear to the Secretary of State to have knowledge or experience of any aspect of child protection or the protection of vulnerable adults". I intend no disrespect to the judicial or non-legal members of the UT in the present or any other case when I say that, by necessary statutory qualification, the ISA is particularly equipped to make safeguarding decisions of this kind, whereas the UT is designed not to consider the appropriateness of listing but more to adjudicate upon "mistakes" on points of law or findings of fact (section 4(3)).’