“We are satisfied that you meet the criteria for regulated activity. This is because you have been employed as a carer with [E Services at] Supported Accommodation in which you were required to care for a service user. The DBS are therefore satisfied that the test for regulated activity is met in relation to vulnerable adults. We have considered all the information we hold and are satisfied of the following: On08 November 2021 , whilst employed as a carer whilst on night shift at E [Services] Supported Accommodation you have threatened and intimidated a service user, Mr W, which has resulted in his behaviours being provoked. Having considered this, 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. We are satisfied a barring decision is appropriate. This is because it has already been determined that it appeared that you engaged in relevant conduct which harmed a vulnerable adult. This was on review of the evidence which demonstrated that whilst you were in a position of trust as a carer, you threatened a service user by invading their personal space, telling them they must ‘obey’ and shouting at them. This has caused the service user to feel intimidated as they have moved away, swore and called the Police. You received a Community Resolution Order from the Police and therefore apologised to the service user for your behaviours. You have been dismissed from your position. Your behaviours made the service user feel intimidated and threatened by your actions. The service user has been emotionally impacted by your actions. …”
“The safeguarding regime 18. The DBS is a body corporate (section 87 of the Protection of Freedoms Act 2012 ("POFA")). It is not a servant or agent of the Crown (POFA, Schedule 8, paragraph 15(1)(a)). Barring decisions are part of the core functions of the DBS, and the Secretary of State is precluded from giving directions to the DBS in respect of any such core function (POFA, Schedule 8, paragraphs 8 and 14). 19. The arrangements governing the DBS's functions of protecting children (and vulnerable adults) are contained in theSafeguarding Vulnerable Groups Act 2006 ("the 2006 Act"). Schedule 3 to the 2006 Act provides, at paragraph 3: " (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 children and b. DBS proposes to include him in the children's barred list. (2) DBS must give the person the opportunity to make representations as to why he should not be included in the children's barred list. (3) DBS must include the person in the children's 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 children, and b. it is satisfied that it is appropriate to include the person in the list." 20. "Relevant conduct" is defined in paragraph 4 of Schedule 3 as including conduct of a sexual nature involving a child, "if it appears to DBS that the conduct is inappropriate." It also includes conduct which puts a child at risk of harm. 21. Teaching children is a regulated activity under section 5 and Part 1 of Schedule 4 to the 2006 Act. A person included in the children's barred list is prohibited from engaging in regulated activity relating to children (section 3 of the 2006 Act ). 22. The requirement that, before making a barring decision, the DBS must afford the individual concerned the opportunity to make representations as to why they should not be included in the children's barred list, is addressed in more detail in paragraph 16 of Schedule 3. This provides, relevantly, in sub-paragraph (3) that: "The opportunity to make representations does not include the opportunity to make representations that findings of fact made by a competent body were wrongly made". Sub-paragraph (4) states that findings of fact made by a competent body are findings of fact made in proceedings before the Secretary of State in the exercise of the Secretary of State's functions under section 141B of the 2002 Act (i.e. proceedings before the TRA) or in proceedings before certain other specified professional regulators, including, for example, the General Medical Council, the General Optical Council and the Nursing and Midwifery Council. 23. The ambit of the role and functions of the DBS was explained by the Divisional Court in R(SXM) v DBS[2020] EWHC 624 (Admin) ,[2020] 1 WLR 3259 in these terms at [38]: "… it is clear that the function of the DBS is a protective forward-looking function, intended to prevent the risk of harm to children by excluding persons from involvement in regulated activities. The DBS is not performing a prosecutorial or adjudicatory role and it is not engaged in considering complaints from individuals and imposing punishments. It may, as part of its task, have to form a view as to whether a person has engaged in conduct likely to endanger a child or sexually inappropriate conduct, or the case may involve conduct posing a risk of harm. It will need also to consider questions as to whether it is appropriate to include the person on the children's barred list. However it is not there to receive and adjudicate upon complaints from individuals." That explains why information about whether a person's name is on the children's barred list is not publicly available. It is restricted to those who intend to employ or engage someone who would be involved in regulated activity with children. In SXM it was decided that even someone who alleged that they had been abused as a child by a person referred by a local authority to the DBS for determination as to whether they should be included in the children's barred list, had no status to seek information from the DBS as to the outcome of that referral. 24.Section 4 of the 2006 Act provides for a right of appeal against a barring decision to the UT, with the permission of the UT, on the grounds that the DBS has made a mistake on any point of law or in any finding of fact which it has made and on which the barring decision was based. If the UT finds that the DBS made such a mistake, it must either direct the DBS to remove the appellant from the barred list or remit the matter to the DBS for a fresh decision. If it takes the latter course, the UT may set out any findings of fact which it has made on which the DBS must base its new decision. 25. In determining such an appeal, the UT is not restricted to consideration of the information which was before the DBS decision maker. It has the power to hear oral evidence, and to make its own findings of fact and draw its own inferences from all the evidence before it. It will not defer to the DBS in factual matters but will afford appropriate weight to fact-findings by the DBS in matters that engage its expertise, such as the assessment of risk to the public: see PF v DBS[2020] UKUT 256 (AAC) at [51], approved by this Court in Kihembo v DBS[2023] EWCA Civ 1547 at [26]. 26. In the present case, the UT accurately summarised the case law on the nature and extent of its "mistake of fact" jurisdiction undersection 4(2)(b) of the 2006 Act at [39] to [47] of its determination. It referred, among other matters, to the decision in DBS v JHB[2023] EWCA Civ 982 in which it was confirmed by the Court of Appeal that a finding of fact may be "wrong" even if there was some evidence to support it or it was not irrational, if it is a finding about which the UT has heard evidence which was not before the DBS and the new evidence shows that the finding made by the DBS was wrong. In that case, the Court of Appeal held that the UT had erred by substituting its own evaluation of the evidence for that of the DBS decision-maker in circumstances where (i) the evidence was identical, and (ii) the UT had not held that the DBS had made findings which were not open to a reasonable decision-maker (i.e. irrational). 27. The UT also referred to the more recent case of DBS v RI[2024] EWCA Civ 95 , in which a different constitution of the Court of Appeal found it difficult to discern the ratio of JHB save possibly that "it may be authority for the proposition that if the UT has exactly the same material before it as was before the DBS, then the tribunal should not overturn the findings of the DBS unless they were irrational or there was simply no evidence to justify the decision": see the judgment of Bean LJ, with which Males LJ and Lewis LJ agreed, at [33]. Males LJ, in his concurring judgment, with which Lewis LJ also agreed, indicated that the restrictive approach adopted in JHB should be confined to those cases where the appellant does not give oral evidence before the appellate tribunal, or gives no evidence relevant to the question whether they committed the relevant act relied upon. The UT quoted from his judgment where he said (at [49]): "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." 28. The UT directed itself in accordance with that approach. It first satisfied itself that whilst the DBS decision could have been better explained, and different findings could have been made, the findings made by the DBS were open to the decision maker on the evidence before them. It then considered further evidence, including the TRA decision, to ascertain whether any of those findings were mistaken ([88] and [89]). 29. For completeness, Paragraph 18 of Schedule 3 to the 2006 Act provides for the right of a person who is included in a barred list to apply to the DBS for a review of their inclusion (though the permission of the DBS is required to make such an application). However, sub-paragraph (3) provides that such an application can only be made after the end of the minimum barred period (which is prescribed by regulations, currently SI 2008/474) which in XYZ's case is 10 years.”
“[The UT] 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 UT] may do the former but not the latter…”
‘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.’
‘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…. 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...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.’
“3. During my time as a Health Care Support Worker, I was employed by several healthcare providers. I worked with M Healthcare from December 2018 to March 2019, with G Healthcare from July 2019 until July 2020, with A Healthcare Services from July 2020 until October 2020, and with E Services Ltd from16 March 2021 until20 December 2021 . Over these periods, I worked through various challenges, including the COVID-19 pandemic, and remained dedicated to helping those under my care. 4. On [1]8 November 2021 , an unfortunate incident occurred between myself and a patient, [W], who I had been caring for at the time. I had looked after W on previous occasions, as well as other patients living in the same residence. 5. The issue that arose on that day involved W’s eagerness to use the kitchen late at night to cook. The kitchen is located near the room of another patient, J, who lives downstairs and whose room is directly opposite the kitchen. Cooking in the kitchen during the night would likely disturb J, and as such, I advised him gently not to cook at that time. However, he refused my request repeatedly and was adamant on using the kitchen. In an attempt to prevent him from disturbing J, I tried to stop him from cooking, which unfortunately led to an incident between us. He subsequently called the police. 6. I fully acknowledge and accept that my handling of this situation was inappropriate and unprofessional. I deeply regret my behaviour, which I recognise fell far below the standard expected of me in my role. 7. While my intention was to protect J from being disturbed, I understand that my approach in dealing with W was wrong. I had no intention of causing him any harm or distress, and I regret the way in which I handled the matter. I failed to maintain a balance in caring for both J and W, for which I am really sorry. 8. In response to the allegation that I did not show any remorse or empathy towards W following the incident, I want to clarify that I did apologise to him after the incident. I expressed my regret both verbally and in a written letter of apology to him. I never intended to excuse my actions, and I have taken full responsibility for what happened. 9. I want to acknowledge the incident that occurred, as I cannot deny that it happened. However, I want to provide further context regarding the specific word that has caused concern—the word "smash." 10. I want to be clear that this word was never meant with any bad intent. It was an accident, a slip of the tongue in the heat of the moment, and not something I was consciously aware of at the time. 11. I have never been, nor do I want to be, a violent person. My character and professional record reflect this. You can verify my background with any of the organisations I have worked with, and you will find no history of violence, aggression, or any criminal activity. 12. In fact, I have faced challenging situations in my role as a Health Care Support Worker, particularly with the patient in question, W. This incident was not the first time we have had a difficult interaction. 13. On a previous occasion, he used hurtful and discriminatory language towards me. He called me several offensive names and even went as far as to say that he did not want any Muslim to “control” him. I tried to remain calm and professional, telling him that I was simply there to do my job and that my religion had nothing to do with the care I provided. 14. However, W persisted and stated that he would never let any Muslim control his life. He even went so far as to threaten me, telling me that he would "put me in trouble." 15. After that incident, I did everything I thought was right. I reported the matter to both the management and the police. I felt threatened and vulnerable because of W’s comments, and I wanted to make sure that the situation was addressed through the proper channels. 16. Unfortunately, despite my efforts, the management did not take any meaningful action to resolve the issue. The police, however, have been diligent, and I have been contacted several times by officers to check on my well-being, showing that this was a serious matter. 17. Despite everything that had happened previously, I was still committed to providing W with the best care possible. I hold no personal grudges against him, and I believe in professionalism. 18. After the more recent incident, I took it upon myself to write an apology letter to W, expressing my regret for any distress caused. I wanted to mend the relationship and ensure that he knew I did not have any ill will towards him. W accepted my apology, which shows that there was understanding and resolution between us. 19. I understand that what happened—especially the use of the word “smash”— was a mistake, but I do not believe that this single moment of error reflects who I am as a person or a professional. I have worked for years in this field with numerous vulnerable individuals, and I have always carried out my duties with compassion and care. This one mistake should not overshadow all the positive contributions I have made and the many patients I have helped. 20. In that moment, I was trying to cool the situation, but I made an error in judgment when I said something I later regretted. The word “smash” slipped out during the heat of the moment, and as soon as I realised what I had said, I knew it was wrong. I never intended to hurt him physically or emotionally, and I deeply regret that it came across that way. 21. I want to emphasise that this was a slip of the tongue, not a reflection of my character or my intentions. I have always maintained a calm and professional demeanour in my work, and I care deeply about the well-being of my patients. I understand that this incident has raised concerns, but I urge you to consider my full record and the context surrounding this event. This was not a deliberate act of aggression—it was an unfortunate mistake, and I am truly sorry for it. 22. I know that as professionals, you have every right to consider barring me from continuing in this role, but I am asking for your understanding and leniency. I am only human, and like everyone else, I am not above making mistakes. However, I promise that this was an isolated incident, and it will not be repeated. I have learned from this experience, and going forward, I will be even more mindful of my actions and my words in challenging situations. I would never intentionally hurt or distress a patient, and I have always strived to provide the highest level of care. 23. Since the incident, I have reflected deeply on my actions and have learned from this experience. I am fully committed to ensuring that such an event will never happen again. If faced with a similar situation in the future, I would approach it differently, placing the safety and well-being of all my patients at the forefront. I now understand that assisting my patients in resolving such conflicts, rather than attempting to prevent them, is the correct course of action. 24. I would also like to emphasise that my previous record as a Health Care Support Worker demonstrates that I am not a risk to my patients. 25. Throughout my career, I have consistently shown my dedication to caring for my patients and ensuring their safety. I deeply regret the incident that took place on [1]8 November 2021 , but I do not want this isolated event to define me or prevent me from continuing to provide high-quality care to those who need it. I am committed to using what I have learned from this experience to improve and provide even better care in the future…”
“06-Dec-2021 00:00 Management was not aware of the situation when it happened so unable to take action until today (6/12/2021 ). W didn't report to management and staff did not report to management. However two weeks ago, Staff [MC] called registered manager saying the police visited and they wanted to talk to [W] but “ isn't in. Staff asked what happened, MC Said he advised [W] to go to sleep when he was cooking but [W] lied to police that he was threatened. Manager GS asked Staff MC why he was prompting S to sleep when W was cooking? MC said well just a suggestion to him; but W has lied to Police. Manager GS told staff MC that if the police is already involved he will wait for them to do their investigation and let E know the outcome. Today (6/1 2/2021) the Police attended and Manager GS, was informed that the Police were around. Manager GS attended with the Safeguarding Lead (staff DI). DI who is in charge of access to CCTV. DI logged into the CCTV data base and provided the police the access, together they watched the Clip and after police provided the date of report as 8th of November 2021. The CCTV was checked for that day. It was then found that MC had bullied and threatened W without any obvious provocation-details of said threat are What action was taken? Police informed Staff MC, that they will refer to DBS. As soon as Police left, Staff DI asked MC to leave and sent a replacement staff.”
“Don’t tell me I’m not [GS] – I’m just telling you something… you have to obey” etc. Indeed, the apparent acceptance by MC, part-way through the Incident, that W was entitled to use the kitchen for the purposes he was using it at the time, is an aggravating factor. MC’s conduct thereafter was/is, as a result, more problematic and more culpable: it was then about, it seems, his authority and his perceived ability/right to enforce the same on W (W has to “obey”
“Given your behaviour driven by a belief that you are entitled to behave in a harmful manner towards service users with a lack of empathy with those in your care, it is considered likely that you could repeat your harmful behaviour in regulated activity with children. Repeating this behaviour would cause emotional harm and therefore it is appropriate to include you on the Children's List.”
‘This is because you worked as a Support Worker for E[] Services and previously applied for employment as a Health Assistant and Support worker with checks on both lists.’
"Where the legislative criteria for regulated activity with children are not met due to frequency, temporary or occasional work or supervision factors, consideration should be given as to whether it would be reasonable to conclude that the individual satisfies the TRA on the basis that they may carry out the activity often enough, not on a temporary or occasional or without supervision in the future."
"4.28. If an individual has undergone training or achieved a qualification that relates to regulated activity that is group specific, then the TRA can be satisfied on the basis of 'might in the future' in relation to that group. " 4.29. If an individual has obtained a qualification or undergone training within the context of employment with a specific vulnerable group, it is unlikely this information alone would support the assessment that the individual 'Might in the Future' engage in regulated activity with the other group."
“There is no evidence to suggest that MC has previously worked with children in the past and will work with children in future. On this basis the test for regulated activity is not in relation to children.”