AD v Disclosure & Barring Service
| Jurisdiction | UK Non-devolved |
| Judge | Judge Jones |
| Neutral Citation | [2023] UKUT 280 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Published date | 08 December 2023 |
| Subject Matter | Safeguarding vulnerable groups - Adults’ barred list,Safeguarding vulnerable groups - Children’s barred list,Jones,R |
AD v Disclosure & Barring Service
[2023] UKUT 280 (AAC)
IN THE UPPER TRIBUNAL Appeal No. UA-2021-000128-V
ADMINISTRATIVE APPEALS CHAMBER
ON APPEAL FROM:
Appellant: AD
Respondent: Disclosure and Barring Service
DBS Ref No: DBS725
Customer ref: 00940324935
DBS ID Number: P0000381UC8
Between: AD Appellant
- v –
DISCLOSURE AND BARRING SERVICE Respondent
Before: Upper Tribunal Judge Jones
Tribunal Member Heather Reid
Tribunal Member Dr Elizabeth Stuart-Cole
Hearing date: 27 September 2023
Decision date: 07 November 2023
Representation:
Appellant: Patrick Hill, instructed by BCL Copeland Solicitors
Respondent: Bronia Hartley, Counsel instructed on behalf of the DBS
DECISION
The decision of the Upper Tribunal is to dismiss the appeal of the Appellant.
The decisions of the Disclosure and Barring Service taken on 20 May 2020 and
12 April 2021 to include and retain the Appellant’s name on the Children’s and
Adults’ Barred Lists did not involve any mistake on a point of law nor were they
based upon material mistakes in findings of fact. The decisions of the DBS are
confirmed.
Case no: UA-2021-000128-V
AD -v- DBS (Safeguarding) [2023] UKUT 280 (AAC)
2
The Upper Tribunal further directs that there is to be no publication of any matter
or disclosure of any documents likely to lead members of the public directly or
indirectly to identify the Appellant, witnesses, complainants or any person who
has been involved in the circumstances giving rise to this appeal.
This decision and direction are given under section 4(5) of the Safeguarding
Vulnerable Groups Act 2006 and rule 14 of the Tribunal Procedure (Upper
Tribunal) Rules 2008.
Introduction
1. The Appellant (‘AD’) appeals the decisions of the Respondent (the Disclosure and
Barring Service or ‘DBS’) dated 28 May 2020 and 22 April 2021 to include and
retain (not to remove) his name on the Children’s Barred List (‘CBL’) and Adults’
Barred List (“ABL”) pursuant to paragraphs 3, 9 and 18A of Schedule 3 to the
Safeguarding Vulnerable Groups Act 2006 (“the Act”).
2. The Respondent originally included the Appellant on the Children’s Barred List
(‘CBL’) and Adults’ Barred List (‘ABL’) on 28 May 2020 (‘Final Decision Letter’ or
‘original decision’) – see paragraphs 3 and 9 of Schedule 3 to the Act. The
Respondent subsequently reviewed this decision on 22 April 2021 and determined
that it was not appropriate to remove the Appellant from the CBL or ABL (Review
Decision Letter) - see paragraph 18A of Schedule 3 to the Act.
3. Permission to appeal to the Upper Tribunal was granted by the Judge on 21
September 2022 in respect of the grounds raised by the Appellant in the perfected
grounds of appeal.
4. We held an oral hearing of the appeal at the Rolls Building, London on 27
September 2023. The Appellant was represented by Mr Hill of counsel. The
Respondent (the DBS) was represented by Ms Bronia Hartley of counsel. We are
grateful to them both for the quality of their written and oral submissions.
The background
5. The Appellant, AD, is now aged 28 and was 27 at the time of the hearing. At the
time of the relevant decisions in May 2020 and April 2021, he was 24 and 25 years
old respectively.
6. In March 2020, in the Crown Court at Northampton, he was acquitted
(unanimously) of alleged offences of a sexual nature in relation to the complainant
contrary to provisions of the Sexual Offences Act 2003.
7. The material events leading to the allegations had occurred three years earlier
between April and June 2017. The Appellant had, upon completing his A-levels,
obtained employment as a teaching assistant (an ‘Educational Technical Instructor’
or ‘TI’) in the education department of St. A’s Hospital. He began in that role on 21
September 2015 following a satisfactory DBS clearance and at the time was 19
years old (he was 21 years old by the time of the material events).
Case no: UA-2021-000128-V
AD -v- DBS (Safeguarding) [2023] UKUT 280 (AAC)
3
8. The Appellant had previously worked for three years (from February 2012 to
August 2015) – without incident – as a ‘Ward Host/Domestic’ on a hospital
maternity award at Northampton General Hospital. His line manager (Senior
Housekeeper, Department of Obstetrics and Gynaecology) described him in a
reference letter as ‘an exemplary member of staff’ who was spoken of highly by all
the midwives and nurses; who worked with ‘great sensitivity to the [new] mothers
regarding privacy and courtesy’; who throughout his employment had adhered to
all relevant policies and procedures; who would offer to assist on other wards when
the department was short-staffed; and who was a ‘loyal, valuable asset’.
9. The ‘complainant’ in the criminal proceedings was RYH a male inpatient in the
mental health facility of St. A’s, who was 13 to 14 years old at the time of the
allegations. Although he had made no complaint at the time, he would come to
make various allegations.
10. The DBS no longer places any reliance upon many (and the most serious) of the
complainant’s allegations following the evidence and information arising from the
criminal trial, and in light of the Appellant’s representations.
11. On 19 June 2017, the Appellant was suspended from his role; on 8 July 2017, he
was arrested. The Appellant was 21 years old at the time of his arrest. He was
interviewed under caution and co-operated fully with the police investigation,
answering all questions asked of him. He did not seek to suggest that there had
been no failings in the performance of his duties at the hospital; indeed, he
accepted candidly that he had allowed himself to become overly attached to the
complainant, and that he had failed to maintain appropriate professional
boundaries with him. He demonstrated some insight. He maintained, however, that
he had not committed any criminal offence.
12. On 11 July 2017, a meeting was convened at St A’s (a Local Authority Designated
Officer Joint Evaluation Meeting - ‘DO JEM meeting’) at which the complainant’s
allegations were discussed. The notes were disclosed to the Appellant for the first
time in connection with the DBS decision in these proceedings. It is clear from them
that: (a) the meeting was conducted in the absence of the Appellant (b) the notes
do not purport to be verbatim; and (c) the notes, such as they are, contain
unattributed and some inaccurate comments and information. These include one
note which erroneously recorded that the Appellant had admitted in police interview
that he was ‘obsessed’ with the complainant.
The procedural history
13. On 31 July 2017, the Appellant’s case was referred to the DBS by the local
authority which had employed him.
Minded to bar decision
14. On 6 November 2019, the DBS informed the Appellant that it was ‘minded to’ place
him on both the adults’ barred list and the children’s barred list. The Appellant had
received an offer to study Medicine in September 2019. The findings made by the
DBS in the ‘minded to bar letter’ are not addressed but, following the
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