Patricia Kihembo v Disclosure and Barring Service

Hearing date: 30 November 2023

Approved Judgment

This judgment was handed down remotely at 15.00 on 21 December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

This is an appeal by Ms Patricia Kihembo against the decision of the Upper Tribunal (“UT”) (Administrative Appeals Chamber) dated 22 ^nd June 2022. By that decision, the UT dismissed Ms Kihembo's appeal against two decisions of the Respondent, the Disclosure and Barring Service (“DBS”), dated 2 ^nd January 2020 and 23 ^rd April 2020. The first decision of 2 ^nd January 2020 was to include Ms Kihembo in the Adults' Barred List; the second decision of 23 ^rd April 2020 was to include her in the Children's Barred List.

Ms Kihembo previously worked as a live-in carer for the service user Ms SJP (“SJP”). She was employed by Carers 4 U Ltd. SJP has cerebral palsy and requires physical care and support. She does not lack mental capacity. Ms Kihembo worked as her carer from 2013 until May 2015, at which time SJP accused her of repeatedly hitting her with a shoe horn and spoon over a period of 3 months.

Carers 4 U Ltd suspended Ms Kihembo from work by letter of 24 ^th May 2015, pending investigation of the allegation. The matter was investigated by the police and social services. The police investigation was open for no less than three and a half years and concluded with a decision to take no further action owing, in part, to a lack of evidence. Ms Kihembo denies having ever hit SJP.

The DBS sent Ms Kihembo a “Minded to Bar Letter (Adults)” dated 24 ^th July 2019 and a “Minded to Bar Letter (Children)” dated 27 ^th November 2019. Ms Kihembo took the opportunity afforded to her to make representations to the DBS. After considering the representations and all the evidence before it, the DBS notified Ms Kihembo of its decisions to include her in the Adults Barred List (by letter of 2 ^nd January 2020) and in the Children's Barred List (by letter of 23 ^rd April 2020). Both decisions were based on the same alleged conduct by Ms Kihembo toward SJP that occurred sometime between February and May 2015.

Ms Kihembo appealed against both DBS decisions. An oral hearing took place on 27 ^th May 2022 in the UT before a three-member panel chaired by Judge Jacobs. Ms Kihembo was unrepresented at the hearing but attended, spoke on her own behalf and was cross-examined. The DBS was represented by Mr Ashley Serr of counsel. The decision of the UT dismissing the appeal was promulgated on 22 ^nd June 2022. On 28 ^th August 2022 permission to appeal to the Court of Appeal was in the first instance refused by UTJ Jacobs. On 23 ^rd February 2023, Warby LJ granted permission to Ms Kihembo to appeal to this court.

The DBS is mandated to maintain the Adults' Barred List and the Children's Barred List by s 2 of the Safeguarding Vulnerable Groups Act 2006 (“SVGA 2006” or “the Act”). The DBS has the power to include a person in the Adults' Barred List under paragraph 9 (relevant conduct) and paragraph 11 (risk of harm) of Schedule 3 to the SVGA 2006; and in the Children's Barred List under paragraph 3 (relevant conduct) and paragraph 5 (risk of harm) of Schedule 3.

An individual's right to appeal a decision of the DBS to the UT is contained in s 4 of the Act:

“4 Appeals

(1) An individual who is included in a barred list may appeal to the [UT] against–

a) […]

b) a decision under [paragraph 2, 3, 5, 8, 9 or 11] of [Schedule 3] to include him in the list;

c) […]

(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 [UT].

(5) Unless the [UT] finds that [DBS] has made a mistake of law or fact, it must confirm the decision of [DBS].

(6) If the [UT] 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 [UT] remits a matter to [DBS] under subsection (6)(b)–

(a) the [UT] 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 [UT] directs otherwise.”

The right to appeal a decision of the UT to the Court of Appeal is provided by s.13 of the Tribunals, Courts and Enforcement Act 2007: it is confined to “any point of law arising from a decision made by the UT” (other than an extended decision, a category which is not relevant to this case).

The DBS's decisions to include Ms Kihembo in the Adults' Barred List and the Children's Barred List were based on its findings that:

“During a period of approximately 3 months, ending on 18 ^th May 2015, you repeatedly hit service user SJP with a shoe horn and a spoon causing red marks to her forehead and thighs and bruising to her knuckles and right eye.”

The DBS stated in its reasoning that it had considered all information available to it, including Ms Kihembo's representations. It explained that the DBS arrives at findings on the balance of probabilities; that it is not precluded from considering matters that have been subject to no further action by the police; and that its actions were taken as soon as Carers 4 U Ltd were made aware of the allegations.

The DBS specified that the following considerations were taken into account when reaching the final decision(s) in respect of Ms Kihembo:

“In your original evidence to the police you said that about 3 weeks prior to the alleged incidents you told SJP that you would be leaving as you were was [sic] pregnant and at this point Ms P's behaviour changed towards you. In your representations you made no mention of this, describing her relationship with SJP throughout as being good and saying that SJP made the allegations against you under pressure from her family.

Information from the Manager of Carers 4 U supports your statement that SJP complained about her family to carers and that the family wanted SJP to have Indian carers.

In your representations you claim that SJP's mother hated you for reporting that she had asked for and received money from her daughter to send to India on several occasions. The manager of Carers 4 U confirmed that you had reported concerns over SJP's mother asking her for money, that this had been passed on her Social Worker and this had been discussed with the parents. MN, who was at the meeting, confirmed that SJP left the meeting early after SJP's father became abusive and disowned SJP. This information provides some basis for your contention of antipathy towards her from SJP's family.

However, the information from Carers 4 U shows that SJP had stood up to her family in the past, having pursued an action against her mother, although she did later withdraw from this as she had not wanted to give evidence in court. She had also received support from Social Services in severing connections with the family for a time. The information from Carers 4 U confirms that SJP had ‘talked ill’ of her parents to other carers, indicating she did not side with her family. Her past actions do not make it likely that she would support her family against you, a carer with whom she had a very good relationship, without cause.

In your representations you claim that it was SJP's parents who had ‘beat her hard’ when she made a gagging noise and that on the night of 16 May 2015, after returning from a visit to her family, SJP cried all night. Despite you normally keeping detailed notes in SJP's Daily Diary record, you did not note this in her notes of 16/17 May 2015. You also made no mention of the family physically abusing their daughter in 2015 and you documented the eye injury as the result of SJP scratching herself after her nails had been cut. No mention was made about the mark to her forehead.

In SJP's Daily Diary notes entries you made during the earlier period from 10.1.15 to 23.1.15 differ in tone from those made in the later period from 30.4.15 to 17.5.15. In the earlier period SJP is reported as co-operative in eating and taking medication and no concerns are registered. In the latter period you note her lack of cooperation with teeth cleaning, taking of medication and eating. Whilst this could indicate that SJP had become hostile towards you following you telling her that you would be going on maternity leave, your choice of words to describe your client's actions is more supportive of SJP's version of events. In the Daily Diary notes you refer to SJP ‘wanting’ or ‘trying’ to vomit her food up after eating, indicating that you saw this as an intentional action on SJP's part, despite confirming in your representations that you knew this was an involuntary reflex action SJP suffered after eating. This is consistent with SJP's claim that during this period her involuntary gagging aggravated you and was what prompted you to hit her with a spoon and shoe horn.

You say in your representations that when you eventually heard from the police in November 2018 that they were...