CAL v The Disclosure and Barring Service: [2026] UKUT 262 (AAC) [2026] UKUT 262 (AAC)

UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
[2026] UKUT 262 (AAC)Case No UA-2025-000836-V
Between
CALAppellantThe Disclosure and Barring ServiceRespondent
Before
Sarah JohnstonDate 9 July 2026Category: Safeguarding vulnerable groupsSubcategory: Safeguarding vulnerable groups adults barred list, Safeguarding vulnerable groups finding of fact, Safeguarding vulnerable groups mistake on point of law
[1]The appeal is allowed and the DBS is directed to remove the appellant from the adults’ barred list, following an oral hearing on 26 June 2026.[2]The hearing was held in London. The appellant represented herself. The DBS was represented by Ms Hartley. We are grateful to both for their submissions and cooperation. REASONS FOR DECISION A. Introduction[3]The appellant appeals to the Upper Tribunal against the DBS’s decision under reference01046422372 communicated in the Final Decision letter dated 14 April 2025 (pages 303-309 of the bundle) to include her in the adults’ barred list. B. Procedural Background[4]Permission to appeal was given by Upper Tribunal Judge Johnston on 19 December 2025. Permission was given on the grounds of mistakes of fact in respect to the allegations of facts found proved by the DBS.[5]The DBS through Ms Hartley relied on the facts alleged against four patients for the decision to bar the appellant. These facts found by the DBS are as follows:(1) “On 22 June 2022, whilst employed as a Support Worker by Mid Essex Hospital, on Bardfeild ward you have taken £20 from the purse of a Patient in Side Room 4. Upon the Patient’s relative discovering this, you returned the money, stating you found it outside the window of Side Room 4.(2) On an unknown date from 17 March 2022 to 20 March 2022, whilst employed as a Support Worker by Mid Essex Hospital, on Braxted Ward you have taken £25 from the wallet of a Patient and altered the Patient Property List to reflect this.(3) On 03 July 2022, whilst employed as a Support Worker by Mid Essex Hospital, working a bank shift on Tiptree ward you have taken £140 from a Patient whilst providing personal care.(4) On an unknown date from 25 January 2022 to 02 February 2022, whilst employed as a Support Worker by Mid Essex Hospital and working a shift on Braxted ward, you have taken £380 from a Patient. You have reported that the next of kin had collected the money 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.” C. The Law[6]The relevant legislation is in the Safeguarding Vulnerable Groups Act 2006 (the Act).[7]Section 2 of the Act requires the DBS to maintain an adults’ barred list. By virtue of section 2, Schedule 3 to the Act applies for the purpose of determining whether an individual is included in the list. Regulated activity is determined in accordance with section 5 and Schedule 4 to the Act.[8]Section 3 provides that a person is barred from regulated activity relating to vulnerable adults if the person is included in the adults’ barred lists. Regulated activity is determined in accordance with section 5 of, and Schedule 4 to, the 2006 Act. Schedule 3 to the Act provides for inclusion by reference to, among other things, “relevant conduct” by the person included in the lists. Relevant conduct is what the DBS relied on in this case. The appellant must have been engaged in relevant conduct, and the regulated activity test must be met. That is, that the person has at any time engaged in relevant conduct and is, or has been or might in future be, engaged in regulated activity relating to vulnerable adults (Paragraph 9(1)(a)(i) and (ii) of Schedule 3).[9]Relevant conduct is defined in the Act as, among other things, conduct which endangers or is likely to endanger a vulnerable adult, and conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him (paragraph 10(1)(a) and (b) of Schedule 3). A person’s conduct endangers a vulnerable adult if he harms a vulnerable adult, causes a vulnerable adult to be harmed, puts a vulnerable adult at risk of harm, attempts to harm a vulnerable adult or incites another to harm a vulnerable adult (paragraph 10(2)(a)-(e)).[10]Schedule 3 paragraph 16(1) and (3) of Act provides- 16(1) A person who is, by virtue of any provision of this Schedule, given an opportunity to make representations must have the opportunity to make representations in relation to all of the information on which DBS intends to rely in taking a decision under this Schedule. …[11]Section 4 of the Act governs appeals. It provides that an appeal may be made to the Upper Tribunal against a DBS decision only on the grounds that the DBS has made a mistake on any point of law or in any finding of fact which the DBS has made and on which the decision was based. Subsection (3) of section 4 provides that, whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact (our emphasis).[12]In DBS v RI [2024] EWCA Civ 95 Bean LJ said this: “31. It seems to me plain that the Presidential Panel in PF were saying that where relevant oral evidence is adduced before the UT in an appeal under s 4(2)(b) of the 2006 Act the Tribunal may view the oral and written evidence as a whole and make its own findings of primary fact. I would add that whether or not A stole money from B cannot be considered a matter of “specialist judgment relating to the risk to the public” engaging the DBS’s expertise. I reject Ms Patry’s submission that the Upper Tribunal is in effect bound to ignore an appellant’s oral evidence unless it contains something entirely new. Such an approach would be anomalous and unfair. It would be anomalous because, as Males LJ pointed out during oral argument, an appellant who attended the Upper Tribunal hearing and stated that she was innocent but was not cross-examined, would be liable to have her appeal dismissed because no item of fresh evidence had been put forward, whereas if she was cross-examined, and in the course of that cross-examination mentioned a new fact, that would confer on the UT a wider jurisdiction to allow the appeal on mistake of fact grounds. Usually courts and tribunals (and juries) think more highly of parties who have maintained a consistent account than those who come up with a new point for the first time in the witness box. … 35. Such a technical approach would also, in my view, be clearly unjust. The DBS has draconian powers under the 2006 Act. A decision to place an individual on either or both of the Barred Lists is likely to bring their career to an end, possibly indefinitely. Parliament has given such a person the right of appeal to an independent and impartial tribunal which can hear oral evidence. It is in my view open to an appellant to give evidence that she did not do the act complained of and for the UT, if it accepts that case on the balance of probabilities, to overturn the decision.” …[13]If the DBS has made an error of law or fact, the Upper Tribunal determines whether to remit or direct removal of the person’s name from the list (section 4(6) of the Act). In Disclosure and Barring Service v AB [2021] EWCA Civ 1575, at paragraph 73 Lewis LJ says as follows:
“For those reasons, I would interpret section 4(6) of the Act as permitting the Upper Tribunal to direct removal of the name of a person from a barred list where that is the only decision that the DBS could lawfully reach in the light of the law and the facts as found by the Upper Tribunal.”
D. Factual background[14]The appellant was employed as a health care support worker at Mid Essex Hospital NHS Trust(the Trust) at the time of the allegations. She worked there from 23 April 2018 until the 07 September 2022. The DBS referral is undated but “generated” on 22 August 2024 by the Deputy Director of Nursing.[15]The allegations accepted by the DBS are set out in paragraph 5 above. The appellant was suspended from work by letter dated 12 July 2023. She resigned from the Trust in September 2022. On 15 February 2024 the outcome of the disciplinary meeting was sent to her by letter confirming that had the appellant still been employed by the Trust she would have been dismissed. Four allegations were considered in that letter. Allegation (1) and (3) were the same as the DBS allegations; that on 22 June 2022 the appellant took £20.00 from a patient and gave it back alleging she had found it outside the patient’s window and that on Sunday 3 July 2022 she stole £140 from a patient’s property. The other two allegations contained in the letter were that the appellant continued to complete patient property lists alone having been told to do this with the Nurse-in-Charge and that on 22 June 2022 she failed to complete the correct process for logging and storing a patient’s valuables. The four allegations were found proved on the balance of probabilities.[16]The DBS sent the Minded to Bar letter on 06 February 2025 giving the appellant the opportunity to make representations. She made representations in a letter to the DBS which is undated at page 296 of the bundle. The DBS decision letter barring the appellant was sent to her on 14 April 2025. E. Oral and Written evidence[17]The appellant told us in the hearing that the DBS allegations were different than those made against her by the Trust. She did not know where the other allegations came from and they were not discussed in the disciplinary meeting.[18]As to allegation (1) she said the patient had asked her to check the money in the purse as she was worried that her son was stealing money. She got the purse out and checked the money was there reassuring the patient. The next thing she heard was that £20 was missing. She told us the family had told her that the patient hides things in “weird places” and so the family and the appellant checked the bins and looked around. The family had tried to look out the window but could not see. The appellant went outside on a break for a smoke, and she found the money up against the wall. The patient had been sitting by the window and could have slotted it out the side of the window from where she was sitting. In answer to a question from Ms Hartley, she accepted that another staff member CT had seen her with the purse. CT’s statement was that she had said to the appellant that she should not be doing that. The appellant accepted CT may have said this, but she could not remember. The appellant said that at the request of the patient, she had agreed to check the patient’s purse, to check that the money was there. She accepted that she had been told not to deal with property of valuables, but the ward was very busy and there were only two HCA’s on duty when there should have been four. She was trying to reassure the patient and was going to tell the manager, but other patients needed help and she forgot. She said had she taken the money she would have been seen. Although the patient had an excess of fluid in her lungs, she was mobile in the room.[19]In her statement of 22 June 2022 at page 79 of the bundle the appellant said she had found the money outside the window and knocked on the window to hand it back to the family. She said she then told the senior staff nurse (SSN) JA and the staff nurse (SN) ED that it had been found. Her statement goes onto say that:
“They said they wondered if she had put it out through the window, [SN ED] was in the room when they said this.”
[20]At page 80 of the bundle when she was interviewed by the Matron TG she said:
“I suggested that the money could have accidentally been put in the bin or out the window. I found it outside the window up against the wall.”
She later says in answer to the question of whether searching for the money outside the window was her thought or the family’s she said, “they suggested it”. She also said that she had told the family she had checked the wallet twice and the money was there. She did not put this in her statement at page 79 of the bundle as she was upset. In another undated statement at page 82 of the bundle, she said this:
“When I was in giving personal care, patient x was stating she thought her family had been taking stuff from her purse. I checked against the property list she had and everything was there. During me being in there a colleague came and asked for my help with someone else as there was only her and myself working the shift so we were trying to get everyone up and ready. I had finished with patient X so went to help. I hadn't had a chance to speak to my ward manager as we had been very busy. When the family came in they said they noticed £20 had gone missing. Myself and one of the nurses went into side room 4 to speak to them. They had wondered if she had put it out of the window but as the window didn't open very far they couldn't look. I said I would go outside and have a look and it was on the floor outside of the window. I took this back in and returned to patient x and the family. They then said they would take the property home. As we were short staffed, I forgot to talk to my ward manager or nurse in charge about the property as it had been a very busy shift.”
[21]At page 56 of the bundle in the conclusions of the investigation into the thefts it is noted that there was evidence that the patient was generally weak and the SSN JA said she would have had great difficulty getting to the window to throw the money outside.[22]In the witness statement of SSN JA (196 of the bundle) she says:
“So I found that quite strange and why then would she just drop £20 out of the window, bearing in mind how our windows are like in here, it's slightly high, the chairs are low. We've just ascertained that the woman's got ODS care at home. She is able to mobilise. Although she did have, she had pleural effusions on that day, so she was quite chesty and probably not feeling 100%, pleasantly confused, no dementia diagnosis on the admission notes. but she was confused. She'd have to get up and move herself up and drop it over the window. I don't think she would be able and later And honestly, if I'd done it, I would have just kept the money. I wouldn't put it outside the window. That's just me. It doesn't make sense. It just that to me its just literally too silly. You wouldn't do it; it doesn't make sense.”
[23]In answer to a question as to whether the money would have been seen by CT if it was there, she said:
“100% I mean, I don't know, you probably have not been out in the garden, but it's nothing ..”
[24]Today the appellant told us the patient was sitting by the window. This is confirmed by SN ED in her statement at page 168 of the bundle:
“And I said maybe she took from the purse and hide it somewhere and she said she was sitting on chair next to the window ...”
And at page 169: “She was next to the window, and she can with her hand will manage” this was in answer to a question whether it would have been possible for the patient to put the money out of the window. SN ED goes onto say she did not look out of the window as you cannot see the floor when the window is open.[25]SN ED also says at page 167 of the bundle that the appellant would not have had time to go out and find the money and come back in.[26]At page 54 of the bundle the findings of the investigation meeting by the Trust are set out. As to allegation (1) the missing money was reported at approximately 17.00 by the granddaughter of the patient. The money had apparently been there the night before when family visited. CT told the nurse that the appellant had been looking in the wallet. CT confirmed that the appellant said she was checking due to suspicions of the patient about her son taking money. CT said she had gone on her break before the appellant and did not see any money outside the window. At page 168 in a note of the interview with SN ED she was asked about whether the money would have been seen if she had gone outside. SN ED said this in answer to a question about whether she would see money on the ground if she went out on a break:
“I don’t think so. No. …If the money is eye level if the window would be yes but you won’t be looking down …”
[27]As to allegation (2) that the appellant took £25 out of a patient’s wallet and altered the Patient Property List the appellant denies that she did this. In answer to questions from Ms Hartley when she was taken to the property list she said that she did not write the note on the bottom right corner of the page and that that was not her signature. She said it was checked by the two people who signed GN and EB. The nurse put the money in the envelope, and it was signed by the nurse. They were given a key and she went with the other HCA and put it in the filing cabinet and then took the keys back to the nurse. She would not have had access to the money by herself. If it was locked away in the filing cabinet as the property list says she would not have had access to it as only the nurse had the key. She would not be the one who handled the wallet. She denies overwriting the amount on the form to £100 rather than £125. She says that the a’s, o’s and n’s are not her writing. She asked us to compare to the property list at page 237. We are not handwriting experts but there are small differences in the signatures.[28]As to allegation (3) the appellant also denies taking £140 from a patient in Tiptree ward. The only evidence we have before us is the appellant’s evidence that she did not do this and the evidence from CE Senior sister (statement at page 90-91 of the bundle) who confirms that the appellant delivered personal care to this patient and others on her own. The DBS essentially rely on a pattern of behaviour given the other allegations and that the appellant gave personal care to that patient when on duty.[29]As to allegation (4) the appellant denies taking the £380 from the patient. She says that she found the money with another HCA AH on 25 January 2022. They gave it to the nurse who documented it and put it in the locker. She was told by a member of night staff that the next of kin collected the money, but she couldn’t remember who that night staff member was. The money was put in the medication locker and the HCA’s do not have access to the keys and so she could not have taken it. AH in her statement said she counted it with the appellant and she placed the envelope and sealed it and the appellant locked it in his bedside locker. She never saw the envelope again. The property list at page 237 of the bundle lists the £380 and other possessions and is signed by the appellant and AH. Another note says that “NOK has taken envelope”. The appellant says that the HCA would have had to get a nurse to lock the money away and ED would have done this. The HCA’s do not have access to the locker keys. The missing money was documented on 3 February 2022, and the appellant could not remember the night staff member who told her it had been collected. The night staff were asked, and no one could remember family members attending the ward. The DBS again rely on a pattern of behaviour to find that the appellant took the money. F. Oral submissions from the parties[30]Ms Hartley provided written submissions to the Upper Tribunal. In them she said that if the appellant has committed one theft this is corroborative of her having committed the others. She submits that the appellant was working during the windows of time in which all four thefts occurred. The appellant was in debt and therefore had motive. She submitted that the appellant had access to the money in all four of the allegations. She also made detailed submissions on the facts. These submissions are at page 347 -351 of the bundle.[31]In her oral submissions she submitted that the appellant was in debt. She said that although the appellant had a debt repayment plan in place she still had to pay £400 a month. She said as to allegation 1) the appellant as caught by a colleague. She invites us not to believe her explanation and said that the appellant did not report the concern that the son was stealing money as a safeguarding concern. She submitted that the appellant’s explanation was fantastical, and we should accept the evidence that the patient could not have thrown the money out of the window.[32]She submitted that as to allegation (4) there was an overwhelming likelihood that she stole the money. The evidence of the appellant that she could not remember who the night staff member was even shortly after the money went missing, not even if they were a man or a woman, was compelling. Had the night staff stolen the money they would not have highlighted this by telling her the next of kin came to collect it. The written evidence before us is that she found the money, removed it, countersigned that it was removed and locked it in the cabinet. She did not name the member of night staff on the documentation and as she wrote the keys are still there, she must have had access to the cabinet on the balance of probabilities.[33]She accepted there was less evidence for the other two thefts, but she did not concede mistake of fact. The £25 from the £125 was money the appellant had access to, and she documented that the case and wallet were locked away. She submitted that the appellant had access to this money and it was clearly not the case that she did not. Given the four thefts happened in a short amount of time when she was on duty her evidence carries very little weight in light of the evidence before us.[34]The appellant told us that she saw no personal belongings around the bed when she was looking after the patient who had £140 stolen. She did not have access to the other cash as they were either in the filing cabinet or the medication cabinet and the HCA’s did not have access to the keys or the codes. She was not told about two of the allegations at the disciplinary hearing.[35]She said when asked that she did not want to make allegations against other staff but there were other staff including administration staff on all shifts. There were also patients and visitors. G. Analysis of the grounds of appeal on which permission was granted.[36]Mistake of fact[37]The first allegation to address is as follows:
“On 22 June 2022, whilst employed as a Support Worker by Mid Essex Hospital, on Bardfeild ward you have taken £20 from the purse of a Patient in Side Room 4. Upon the Patient’s relative discovering this, you returned the money, stating you found it outside the window of Side Room 4.”
[38]The evidence that would lead to a finding that the appellant did take the £20 is as follows: She was seen looking in the patient’s purse by a colleague; that colleague CT said the patient was not looking at her when she saw the appellant going through the purse; SSN JA said that the patient would have had great difficulty getting to the window to throw the money outside; SSN JA said that CT would have seen it if it was there; CT said she would have seen it as she went out before the appellant to the garden; SN ED said that the appellant would not have had time to go out to the garden and back in when she said she found the money; she accepted that she had been told not to deal with property or valuables; it is unlikely that a patient who was worried about losing her money would put the money through the window.[39]There are also inconsistencies in the appellant’s evidence. At one stage she says she suggested the patient could have put the money outside the window. She then said the family had suggested this. She said the family said that the patient would put things in weird places.[40]The evidence that would lead to a finding that the appellant did not take the £20 is as follows: The appellant said she was looking in the wallet to reassure the patient her son had not taken the money; the money was there and so she told the patient that; the family had said the patient puts things in weird places and so they looked in the bins and around the room; the appellant found and returned the money from outside the window; SN ED said that if she had gone out to the garden she would not have seen the money unless it was at eye level, contradicting the evidence of CT; she knew she should not have dealt with property or valuables but the ward was very busy; SN ED confirmed the patient could physically have slotted the money outside the window and was looking after the patient that day so had first-hand knowledge unlike SSN JA.[41]There is evidence that the patient was able to put the money out of the window from the appellant and SN ED. They were the people giving the care to the patient on that day and so knew her state of health. We do not have evidence that SSN JA was giving direct care to the patient on that day. The family confirmed that the patient does put things in “weird places”. The appellant had been seen by a member of staff going through the patient’s purse, but the appellant cited good reason for this. We also note the evidence that the ward was busy and so there were other people on the ward who also could have taken the money. We find that although there are grounds for suspicion in this case there is a lack of evidence that the appellant did steal the money given her evidence and that of SN ED. We therefore find the DBS did make a mistake of fact in finding this allegation proved.[42]The second allegation is as follows:
“On an unknown date from 17 March 2022 to 20 March 2022, whilst employed as a Support Worker by Mid Essex Hospital, on Braxted Ward you have taken £25 from the wallet of a Patient and altered the Patient Property List to reflect this.”
[43]The money that was taken was £25 of £125. We accept the evidence of the appellant that this money was found by her and another HCA. The property form was signed and counter signed by GN and EB. We accept the appellant’s evidence that the money was put into an envelope and signed by the nurse. The appellant and the other HCA were given a key and they took the money together to the filing cabinet, locked it and then took the key back to the nurse. She would not have had access to that money and would not have been able to steal it. There is no evidence except that it is “part of a pattern” that the appellant would have taken the money. Ms Hartley whilst not conceding mistake of fact recognised there was less evidence for this allegation and allegation (3). Given the lack of evidence and the appellant’s evidence which we accept as to this allegation we find that the DBS made a mistake of fact in finding the appellant stole this money.[44]The third allegation is as follows:
“On 03 July 2022, whilst employed as a Support Worker by Mid Essex Hospital, working a bank shift on Tiptree ward you have taken £140 from a Patient whilst providing personal care.”
[45]The appellant told us that she did not take this money. She did provide personal care to this patient as she did to others on the shift. She was not aware of any personal belongings around the bed. She told us there were other staff, patients and visitors on the ward. The DBS rely on a pattern of behaviour and that the appellant gave the patient personal care. There is no other evidence before us. Again, Ms Hartley whilst not conceding mistake of fact recognised there was less evidence for this allegation but relied on a pattern of behaviour. Given the denial of the appellant which we accept and no other direct evidence around the theft we find that the DBS could not on the balance of probabilities find this allegation proved. We therefore find the DBS made a mistake of fact.[46]The fourth allegation is as follows:
“On an unknown date from 25 January 2022 to 02 February 2022, whilst employed as a Support Worker by Mid Essex Hospital and working a shift on Braxted ward, you have taken £380 from a Patient. You have reported that the next of kin had collected the money.”
[47]The appellant denies taking this money. She told us she found the money in the trousers of the patient with another HCA, AH. They placed the cash in an envelope, and the money was locked in his bedside locker. The property list confirms that they were together as both AH and the appellant signed it. On the day it was found missing she and the appellant searched for the money together. She asked the appellant which member of the night staff told her the money had been collected and the appellant could not remember.[48]The appellant explained that the HCA’s do not have access to the keys and she would have had to get the key from a nurse. She could not remember the name of the night staff who told her the next of kin had collected the money, but they were on their way out and she said she would document this. Ms Hartley said it was overwhelmingly likely she took the money because she could not remember which staff had told her this shortly after this had happened. Her submission was that she must have had access to it as the property list and the statement of AH show they locked it in the locker and that the appellant noting on the property list that the keys were still there was proof that she had access. The appellant denies this and says she assumed the other property was there as no one told her it had been collected.[49]We accept the evidence of the appellant that she did not have access to the money after it had been locked in the locker. We do not accept the submission that she must have had access to it. She explained why she said the keys were still in the locker. We find that it is inherently unlikely that she made up a story around a member of night staff telling her this as by documenting it she put herself in a position of suspicion. The statements of the night staff were that they either did not know the money was there and one staff member said no one came in to collect money. However, this does not mean that it was the appellant took the money. There were other people on the ward. The written evidence shows that GN and EB who signed the property form had access to the keys as did other nursing staff. There are no statements from them in the written evidence. The DBS called no witnesses to give evidence. Given the appellant’s evidence that she did not have access to the money which we accept, the fact that it was unlikely that she would have associated herself with the money if she was going to steal it, we find the DBS made a mistake of fact in finding this allegation proved. H. Conclusion[50]As we have identified mistakes of fact, and we must apply section 4(6) of the SGVA to direct the DBS to either remove the person from the list or remit the matter to the DBS for a new decision. Unless removal is the only decision the DBS could make, we should remit the matter to the DBS following the decision in Disclosure and Barring Service v AB above. In this case we have found the DBS did make mistakes of facts on all findings. The only decision that the DBS could lawfully reach in the light of the facts found by the Upper Tribunal is to remove the appellant from the adults’ barred list. We therefore direct the DBS to remove the appellant from the adults’ barred list. Upper Tribunal Judge Sarah Johnston Suzanna Jacoby Munir Suleman 09 July 2026