SV v DBS
| Jurisdiction | UK Non-devolved |
| Judge | Judge Church |
| Neutral Citation | [2022] UKUT 55 (AAC),[2022] UKUT 55 (AAC) |
| Subject Matter | Safeguarding vulnerable groups - Adults’ barred list,Safeguarding vulnerable groups - Children’s barred list,Church,TH |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Published date | 09 May 2022 |
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SV v DBS [2022] UKUT 55 (AAC)
IN THE UPPER TRIBUNAL Appeal No. V/877/2020
ADMINISTRATIVE APPEALS CHAMBER
Between: SV Appellant
- v –
DBS Respondent
Before: Upper Tribunal Judge Church, and Members Mr Hutchinson and Ms Reid
Decided following an oral hearing on 29 November 2021
Representation:
Appellant: Not represented
Respondent: Mr Ashley Serr (instructed by Elizabeth Eagles of DBS)
DECISION
On appeal from the Disclosure and Barring Service (“DBS”)
DBS Reference: 00900357370
Final Decision Letter: 17 January 2020
The decision of the Upper Tribunal is to allow the appeal. The decision of DBS
made on 17 January 2020 was made in error of law. Pursuant to Section 4(6)(b) of
the Safeguarding Vulnerable Groups Act 2006 (“2006 Act”) this case is remitted to
DBS for a new decision.
REASONS FOR DECISION
What this appeal is about
1. This appeal is about SV, who had been working since 2004 as a health care
assistant in nursing homes, and since 2010 for Lillian Faithful Care. It was alleged that
on 21 August 2018, while working the night shift in the New Wing at Resthaven Nursing
Home, SV sat in a chair in a room on the first floor where no residents were present
SV v DBS
[2022] UKUT 55 (AAC)
Case no: V/877/2020
2
from 12:45am until 6:00am, thereby neglecting the residents on the ward for which he
was responsible by failing to ensure all the required care and safety checks were done,
and that he unplugged the call bell of a 93-year-old resident on the ground floor of the
New Wing, leaving her unable to call for assistance (the “2018 Incident”).
2. SV’s employer carried out an investigation into the 2018 Incident and found the
allegations to be proved. SV was dismissed following a disciplinary procedure. His
employer made a referral to DBS (see ‘The law’ below) in relation to the 2018 Incident.
3. A caseworker at DBS considered the material from the referral and decided that,
even if the allegations in respect of SV were made out, it would not be appropriate to
include him in any Barred List (see ‘The law’ below). On 17 January 2019 DBS
informed SV of its “no barring action” decision.
4. However, on 29 August 2019 DBS wrote to SV to say that as part of its
“commitment to safeguarding” its decisions were subject to “internal quality assurance
and internal review processes”, and that it was reconsidering its decision in relation to
his case. On 24 January 2020 DBS informed SV it had decided that it was, after all,
appropriate for him to be included in both Barred Lists (the “Barring Decision”).
5. This is SV’s appeal against the Barring Decision.
The hearing of the appeal
6. The oral hearing of this appeal was conducted remotely via CVP. SV represented
himself, while the Respondent was represented by Mr Serr of counsel, instructed by
Elizabeth Eagles of DBS. We were assisted by an interpreter who translated as and
where required given that, while SV has a good command of “everyday” English, he
struggled to understand, or to express himself fully, when it came to more technical
matters.
7. The case which SV argued at his hearing was very simple: he denied that he
neglected residents and he insisted that the evidence did not support the Respondent’s
conclusion that he did: he denied that he failed to check on the residents on the first
floor for whom he was responsible during the shift in question, he denied unplugging
the call bell of the resident on the ground floor, and he denied that he had any
supervisory responsibility in respect of the agency carer who was working on the
ground floor. He maintained that the Respondent’s investigation was unfair and that
the Barring Decision should be set aside. He did not pursue the more technical
arguments that had been made previously by his representative (who was no longer
acting), and on which permission was granted, but we exercised our inquisitorial
jurisdiction to explore those issues with Mr Serr nonetheless.
8. In his helpful oral submissions Mr Serr expanded on the arguments advanced by
the Respondent in written submissions, addressing the grounds on which I had granted
permission very clearly.
9. At the end of the hearing I made an oral direction for the Respondent to provide
written submissions on the legal and factual basis for its power to reopen SV’s case.
This was duly provided.
The issues
10. In this appeal we must decide three main issues:
(1) Having investigated the 2018 Incident and having informed SV that he would
not be included in either of the Barred Lists:
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2 cases
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EB v Disclosure and Barring Service
...that DBS’s decision was based on a mistake of fact. 19. Nor was there any such discussion in SV v Disclosure and Barring Service [2022] UKUT 55 (AAC), upon which both counsel relied in their skeleton arguments and Mr Lewis relied at the hearing. In that case, the Appellant was unrepresented......
-
MS v Decision and Barring Service (V)
...recent Upper Tribunal decisions which post-dated the Barring Decision but which preceded the hearing of this appeal. 28. In SV v DBS [2022] UKUT 55 (AAC) the panel considered whether DBS has the power to reopen cases in which it has previously decided that “no barring action” is appropriate......