‘We are satisfied that you meet the criteria for regulated activity because you have previously been employed as a Senior Support Worker and have requested DBS checks for both the Children's workforce and the Adults' workforce. We have reviewed all the information we hold and are satisfied of the following: On24/01/2021 and25/01/2021 you attended work as a support worker whilst awaiting results for a Covid-19 test placing patients and colleagues at risk. On24/01/2021 and25/01/2021 whilst employed as a support worker you failed to wear PPE correctly placing patients and colleagues at risk.’
‘When reaching this decision we have fully considered your representations as follows: You have stated that you did not place patients and colleagues at risk as on24/01/2021 you tested negative for Covid-19. The DBS is satisfied that at the time that you attended work you did not yet know the result of your Covid-19 test, however you failed to self isolate in accordance with Government regulations. You stated during your employer’s investigation that on the morning of25/01/2021 you read an email sent to you confirming that you had tested positive for Covid-19. This is corroborated by the GP records you provided in representations which indicates a positive Covid-19 test result on22/01/2021 and states that a text message was sent to the patient (yourself). The DBS therefore finds that by attending work prior to knowing your test result and by not checking your test result sooner, you did place others at risk and the allegation is substantiated. You have stated that when you were shown on CCTV not to have worn correct PPE you were in corridors and therefore not face to face with patients or were in an office with a colleague who was also not wearing a mask. Your employer's policy clearly stated that staff were to wear masks in the building at all times. By failing to wear PPE in corridors or when with colleagues there was an increased risk of transmission which placed others at risk. The actions of your colleagues are not deemed to mitigate your own actions and the fact that the CCTV footage is reported to have shown you both then reaching for masks indicates that you knew your actions were wrong. After viewing the email indicating your positive Covid-19 result you continued to walk through the hospital without PPE indicating a disregard for the rules and placing the others at risk. The DBS is therefore satisfied that the allegation that you failed to wear PPE correctly placing patients and colleagues at risk is substantiated. The DBS is satisfied you have engaged in conduct which harmed or could harm children and vulnerable adults. This is because that you have placed patients and colleagues at risk by attending work whilst awaiting the result of a Covid-19 test and by failing to wear correct PPE in the workplace. You are an experienced Senior Support Worker having worked in the role since 2005 and prior to this there have been no concerns regarding your conduct. Your representations provide several references from colleagues including Registered Nurses, several of whom have worked with you for many years and who state that; you always followed PPE and Covid procedures, you encouraged others to socially distance and wear masks and that they have no concerns about your conduct. Whilst this indicates that you have previously conducted yourself appropriately and in accordance with policies and procedures, this makes it significantly more concerning that on this occasion, you acted in such an irresponsible and reckless manner by attending work whilst unaware if you had Covid and also by failing to wear correct PPE contrary to the company’s policy. You state that you later tested negative for Covid and therefore had not put anyone at risk, however, you also claim that you were unaware of the outcome of your test at the time you attended work. Furthermore, once you became aware of the positive test result on the morning of25 January 2021 you continued to walk around the building without correct PPE therefore knowingly placing others at risk. Not only were you in clear breach of the policy which stated that masks must be worn at all times within the building, but your responses that you were not face to face with patients or that your colleague was not wearing a mask demonstrates your failure to recognise or show any regard for the potential for the virus to spread to others in the building or between colleagues. The DBS recognises that you have a previously unblemished record and that your colleagues provide excellent references with regards to your adherence to Covid 19 and PPE policy prior to the recent behaviour. However, despite this it has been found proven that on the weekend of24 January 2021 , at a time when the country had been placed into a second national lockdown and the serious implications of Covid were widely publicised, as an experienced Senior Support Worker you knowingly breached these policies and placed your patients and colleagues at risk. Your decision making on this instance was so seriously flawed that the DBS remains of the view that the potential future risk, should you make similar flawed decisions when caring for vulnerable adults, is too serious to be ignored. The DBS is therefore now satisfied that it is an appropriate decision to include you in the Adults’
‘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.’
‘Whilst it cannot be determined at what point [PC] became aware of the positive test result, it can be proven that [PC] attended work whilst awaiting a test result, did not make his employer aware that he was awaiting a test result, and failed to actively monitor his emails when he was aware that his test results would be imminent.’
‘[QU:] When and how did you receive your test results? If the results were received on sat 23rd why did you only take action on Mon 25th? [ANS:] Arrived by email on Saturday but I didn't check until Monday during the break while on the Training course. I had my birthday on Friday and enjoyed myself with a lot of drinks and celebrations. As a result of the celebrations I was hungover and tired and because of this I forgot about the impending arrival of the test results leading to me checking them on Monday.’
‘When you spoke to HR initially on 25th January, you stated that you were experiencing headaches and cold like symptoms … You informed us that your test date was21st January 2021 . … I do not accept your explanation that you were unaware of the rules as they keep changing,…’
‘… [PC] failed to wear PPE when talking to a colleague and did not wear his PPE correctly during his shifts, when moving around the hospital and when having contact with other people.’
‘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.’
‘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.’
"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."
"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."