Upper Tribunal Allows Appeal Against DBS Barred List Decision

OUTCOME: Allowed

1

UKUT 232 (AAC) Appeal No. UA-2023-001953-V

RULE 14 Order: It is prohibited for any person to disclose or publish the name of the Appellant in these proceedings, or any other individual named in the evidence in these proceedings, or any information that is likely to identify the same. Breach of this order may be treated as a contempt of court, punishable by imprisonment, fine or other sanction.

IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER

Between:

[APPELLANT] Appellant - v -

[RESPONDENT] Respondent

Before: Upper Tribunal Judge Stout, Tribunal Member R [NAME] and Tribunal Member R [NAME] date(s): 22 May 2026 Mode of hearing: In person

Representation: Appellant: [redacted] Respondent: [redacted]

On appeal from a decision of the [RESPONDENT]: Reference: P0002XICYWQ Decision date: 3 November 2023

SUMMARY OF DECISION

SAFEGUARDING OF [NAME] (65)

The appellant, a [NAME] [NAME] assistant, appeals against a decision of the [RESPONDENT] (“[NAME]”) to retain his name on the adults’ barred list following remittal of an earlier successful appeal. The case concerns two incidents of intimate care provided to [NAME] residents, in respect of which the first Upper Tribunal found that the appellant had no sexual intent but had acted in a manner that was “somewhat insensitive, or callous”, causing the [RESPONDENT] users to feel upset and uncomfortable.

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2 The Upper Tribunal considers the proper approach to “second-time-round” appeals under section 4 of the [NAME] 2006 (SVGA 2006). It holds that where the Upper Tribunal has exercised its power under section 4(7)(a) of the SVGA 2006 to direct [NAME] to base its new decision on findings of fact made by the Tribunal, [NAME] is bound by those facts, but is not confined to those findings and may rely on additional facts. Further, the principles of issue estoppel, including the rule in [NAME], apply to all the issues of fact and law determined by the first Upper Tribunal, or which could and should have been raised before the first Tribunal. Such issues cannot be (re-)litigated in the second appeal absent special circumstances.

In this decision, the Upper Tribunal finds that [NAME] materially erred in law and fact by departing from the binding findings of the first Tribunal and by making additional findings of fact that were unsupported by the evidence.

Although the errors rendered the decision unlawful, the Upper Tribunal is not satisfied that removal from the barred list is the only lawful outcome. The appeal is therefore allowed and the matter remitted to [NAME] for a new decision, which must be taken in accordance with the issues of fact and law determined by the Upper Tribunal in this decision. The Upper Tribunal further directs pursuant to section 4(7)(a) of the SVGA 2006 that [NAME]’s new decision must be based on the findings of fact made by both this Upper Tribunal and the first Upper Tribunal.

Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the Tribunal follow.

DECISION

The decision of the Upper Tribunal is to allow the appeal. The Upper Tribunal finds that there were mistakes of law and fact in [NAME]’s decision. The matter is remitted to [NAME] to make a new decision pursuant to section 4(6)(b) of the [NAME] 2006. [NAME] is directed pursuant to section 4(7)(a) to base its decision on the findings of fact that we have made in this decision. Pursuant to section 4(7)(b), the appellant shall remain on the barred list pending the new decision.

REASONS FOR DECISION

Introduction

1. This is the second appeal by the appellant to reach the Upper Tribunal. The respondent, the [RESPONDENT] ([NAME]), determined by decision dated 26 August 2021 (the first decision) to include the appellant on the adults’ barred list. The appellant appealed that decision to the Upper Tribunal. The Upper Tribunal (Upper Tribunal Judge Citron, [NAME] and [NAME]) (the Citron Tribunal) found that [NAME] made a mistake in findings of fact on which the decision of 26 August 2021 was based and remitted the case to [NAME] for a new decision.

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3 2. [NAME] made a new decision on 3 November 2023 (the new decision), deciding that the appellant should be retained on the adults’ barred list. The appellant appealed that decision. Permission was granted by Upper Tribunal Judge Brewer and this has been the final hearing of this second appeal. The case has required the Upper Tribunal to consider the approach that should be taken by the parties and the Upper Tribunal to second appeals such as this in [NAME] cases.

3. The structure of this decision is as follows:

Introduction ....................................................................................................... 2 This hearing ....................................................................................................... 3 Factual background .......................................................................................... 4 [NAME]’s first decision of 26 August 2021 4 The Citron Tribunal proceedings and decision 5 [NAME]’s new decision of 3 November 2023 7 The issues ......................................................................................................... 9 Legal framework ...............................................................................................10 [NAME]’s jurisdiction 10 The Upper Tribunal’s jurisdiction 10 The approach of the Upper Tribunal 11 The approach of the Upper Tribunal in ‘second-time-round’ appeals 12 [NAME] is not [COMPANY] considering only the facts set out in the section 4(7)(a) direction. ........................................................................................13 Why cause of action estoppel does not apply to this appeal ......................14 Why issue estoppel, including the [NAME] principle, does apply to this appeal ...................................................................................15 Our decision on the substance of the appeal ................................................17 The incident of 6 September 2020 involving [RESPONDENT[NAME] [NAME] 17 (1) [NAME]’s leg .....................................................................................17 (2) Unnecessarily rough and forceful / insensitive and callous ..................19 (3) Distress ...............................................................................................20 The incident of 10 December 2019 involving [RESPONDENT[NAME] [NAME] 21 (1) Care contrary to the care plan ..............................................................21 (2) Rough handling / insensitive and callous .............................................21 The over-arching points 23 (1) Intentional and deliberate harm? ..........................................................23 (2) “Inappropriate” .....................................................................................23 (3) Training and supervision ......................................................................23 (4) Written warning regarding [NAME]’s conduct with fellow employees ...........24 Conclusion and disposal .................................................................................25

This hearing

4. At this hearing, we had before us the Upper Tribunal bundle (UTB) for this case, running to 389 PDF pages, together with the bundle that had been before the Citron Tribunal (275 PDF pages) (the CTB) and a bundle of authorities (559 PDF pages) ([NAME]). Our bundle included two witness statements for the appellant dated 13 December 2022 (UTB, p 182ff) and 23 January 2025 (UTB, p 314ff).

5. The appellant’s first language is not English. He gave evidence on oath/affirmation through a [NAME] interpreter. He was questioned by both [NAME] and the panel. We have borne in mind the appellant’s difficulties with

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4 understanding and communicating in English when considering the evidence in this case.

6. Although, as will be seen, we have ultimately concluded that the principle of issue estoppel (res judicata) applies to some of the matters that the appellant sought to challenge in this appeal because the matter was decided by the Citron Tribunal in the first appeal, we did not determine this as a preliminary issue, but proceeded at the hearing by hearing evidence from the appellant on all issues.

Factual background

7. [APPELLANT] worked as a [NAME] assistant at a [NAME] for a period of approximately 16 months between May 2019 and November 2020. He is a Bangladeshi national who has been resident in the United Kingdom since 1993. His employment was terminated on grounds of gross misconduct. His employer referred him to the [NAME].

[NAME]’s first decision of 26 August 2021

8. [NAME]’s first decision of 26 August 2021 was summarised as follows by the Citron Tribunal in its judgment:

5. The letter conveying the decision (the “decision letter”) set out findings of fact as follows: a. on 6 September 2020, in his role of [NAME] assistant, whilst attending the personal care of a [NAME] [RESPONDENT[NAME], [NAME] fondled her vagina with his fingers, without her consent, and then pressed down on her clitoris very hard with a wipe; b. on 10 December 2019, [NAME] fondled the penis and testicles of a 61 [NAME] old [RESPONDENT[NAME] without his consent; c. on dates prior to 17 July 2020, [NAME] behaved inappropriately towards [NAME] by adjusting their clothing and hugging them without their permission.

6. The decision letter stated that [NAME] was satisfied that [COMPANY] had engaged in relevant conduct in relation to [NAME] adults, specifically inappropriate conduct of a sexual nature involving a [NAME].

7. The decision letter also stated, amongst other things, that a. the way in which [NAME] touched the [RESPONDENT] users in the 6 September 2020 and 10 December 2019 incidents was described by the [RESPONDENT] users as fondling or exploring, demonstrating that this was done in order to satisfy a sexual interest or curiosity; the [RESPONDENT] users’ dependency was exploited by [RESPONDENT] in one-to-one situations, increasing their vulnerability. The decision letter said that [COMPANY] representations denied sexual intent; however, [NAME]’s concerns about exploitative attitudes were not addressed or mitigated; its concerns remained; b. [COMPANY] demonstrated a lack of empathy for the feelings of [RESPONDENT] users in causing pain and humiliation to the [RESPONDENT[NAME] in the 6 September 2020 incident (by forcefully lifting her leg and pressing down forcefully on her

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5 clitoris); [RESPONDENT] took away the [RESPONDENT[NAME]’s right to be in control of her personal care by failing to gain proper consent prior to performing intimate care and left her shaken; c. [COMPANY] demonstrated a pattern of exploitative, sexualised behaviour in order to meet his own intimacy needs whilst disregarding the personal rights or feelings of those in his care or working alongside him; and d. [COMPANY] was considered to present an ongoing risk of harm to any [NAME] who may be placed in his care, if he were to be given a further role in regulated activity in the future. [NAME] was concerned that [COMPANY] would be willing to exploit such a role in order to satisfy his own intimacy and/or sexual needs; a repetition of this type of behaviour would always be likely to cause harm to a [NAME].

The Citron Tribunal proceedings and decision

9. By UT11 form filed on 11 November 2021, the appellant sought permission to appeal the first decision. Permission to appeal was refused on the papers by Upper Tribunal Judge Jones, but granted following an oral renewal hearing by Upper Tribunal Judge Citron. Judge Citron explained the grant of permission as follows:

I give permission to appeal on the ground that in its decision about [COMPANY] of 21 August 2021, [NAME] arguably made mistakes in the following findings of fact: 1. in finding that in his interaction with [NAME] on 6 September 2020, [COMPANY] “fondled” [NAME]’s vagina with his fingers “and then pressed down on her clitoris very hard with a wipe” (as it is arguable that, on the evidence, [COMPANY] actions did not have the sexual nature ascribed to it in the quoted words in [NAME]’s finding of fact); and 2. in finding that in his interaction with [NAME] on 10 December 2019, [COMPANY] “fondled” [NAME]’s penis and testicles (as it is arguable that, on the evidence, [COMPANY] actions did not have the sexual nature ascribed to it in the quoted words in [NAME]’s finding of fact).

Permission to appeal is not formally [COMPANY]. However, the matters which have led me to give permission are as set out above, which I regard as arguable with a realistic (as opposed to fanciful) prospect of success.

10. The appellant was represented at the permission hearing. The appellant relied at the permission hearing on: his original grounds of appeal (Citron Tribunal Bundle (CTB) page 9ff); (ii) “Reconsideration Grounds” (CTB, p 166ff); and (iii) his witness statement of 13 December 2022. For present purposes, we need only note that the appellant in those documents had challenged other aspects of the facts on which [NAME]’s decision was based. In particular, both the original grounds (CTB, p 13ff) and the “Reconsideration Grounds” (CTB, p 171) had expressed “concerns” about [NAME]’s finding that [COMPANY] lifted [NAME]’s leg onto his shoulder in a “forceful” manner. This issue was also covered at [8]-[9] of his 13 December 2022 witness statement and at paragraph 20 of Mr [APPELLANT]’s skeleton argument for Citron Tribunal Hearing.

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6 11. The Citron Tribunal found that there were material mistakes in the findings of fact in [NAME]’s first decision and remitted the matter to [NAME] for a new decision.

12. Having considered [COMPANY] witness statement of 13 December 2022, and heard his oral evidence, the Citron Tribunal concluded as follows regarding [COMPANY] credibility (at [19]-[20]):

19. In his witness statement, [RESPONDENT]:

a. said that he did not fondle the [RESPONDENT[NAME]’s vagina in the 6 September 2020 incident; nor did he press down very hard on the [RESPONDENT[NAME]’s clitoris with a wipe; he attended to clean her of excreted faeces and urine, and this is what he did.

b. noted that he had told the police that he did not fondle the [RESPONDENT[NAME]’s penis or his testicles in the 10 December 2019 incident; he merely showered and cleaned him.

c. acknowledged that he did hug, and make comments such as “I miss you” or “you are pretty” to, [NAME] [NAME] at the [NAME], but said he thought them to be signs of friendship; there was no sexual intent in these actions or comments; and when he was told not to hug or comment on [NAME]’ personal appearances, he stopped doing so.

20. We found [NAME] to be a reasonably open and cooperative witness and we accept much of what he said including, for the most part, the points made immediately above. However, we do not accept everything [NAME] said, for a number of reasons, including

a. the passage of time and the fading of his memory, combined with an (understandable) human urge, as memory dims, to recall matters that have become less clear, in a way that promotes one’s own interest;

b. that some of what he said related to matters outside [RESPONDENT] knowledge – for example, matters as to how the [RESPONDENT] users involved felt, or perceived what was happening in the incidents in question. [NAME] views on such things are something to be taken into account (in that he was a witness to the events), but are not, for obvious reasons, definitive; and

c. that we had near-contemporaneous written accounts of what had happened, in particular with regard to the 6 September 2020 incident, such that, when those accounts and that of [COMPANY] clashed, we had to balance the strengths and weaknesses of all the evidence.

13. The Citron Tribunal then went on to set out three paragraphs of facts on which it directed [NAME] pursuant to section 4(7)(a) to base its new decision as follows:

21. With this in mind, we are of the view that [NAME] made a mistake in its findings of fact that [RESPONDENT] “fondled” the [RESPONDENT] users’ private parts in the two incidents, insofar as this indicates a sexual intent on [COMPANY] part. On

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7 the evidence before us, we find that [COMPANY] had no such intent. We are satisfied that, in terms of his subjective intentions, [NAME] was, with regard to the 10 December 2019 and 6 December 2020 incidents, simply trying to do his job i.e. provide personal hygiene services to the [RESPONDENT] users. He was not acting for his sexual gratification. He was not intentionally trying to cause harm or discomfort to the [RESPONDENT] users.

22. We also find, however, that the way in which [RESPONDENT] interacted with the [RESPONDENT] users was such that they perceived that their private parts were being fondled and they were upset and made uncomfortable by this. We find that this perception on the part of the [RESPONDENT] users was because of the way [RESPONDENT] carried out his task of intimate care. We find that [NAME] was somewhat insensitive, or callous, as to the manner of his giving intimate care, to an extent that the recipients felt they were being treated inappropriately. The [RESPONDENT] users perceived [RESPONDENT] as touching their private parts in ways that they did not anticipate or consider that they had given consent.

23. For completeness, we think it more likely than not that [NAME] did “press hard” with a wipe in the area of the [RESPONDENT[NAME]’s clitoris in the 6 September 2020 incident – however, as stated above, this did not have a sexual connotation, but rather reflected an insufficiently careful and sensitive approach to the task at hand.

[NAME]’s new decision of 3 November 2023

14. [NAME]’s new decision of 3 November 2023 was reached following [NAME]’s usual process of sending the appellant a ‘minded to’ letter and allowing him to make representations before the final decision was issued.

15. [NAME] stated that it was satisfied that:

a. On 6/9/2020, whilst working as a [NAME], [COMPANY] provided inappropriate personal care to 65-[NAME]-old [RESPONDENT[NAME] [NAME], roughly lifting her leg and being unnecessarily rough and forceful when cleaning her vaginal and clitoral area causing distress; b. On 10/12/2019, whilst working as a [NAME], [RESPONDENT] provided personal care to [RESPONDENT[NAME] [NAME] on his own contrary to the care plan and roughly handled [NAME] genitals when washing him, causing him to feel uncomfortable.

16. [NAME] stated that it was satisfied that [COMPANY] had engaged in relevant conduct in relation to [NAME] adults, being conduct which endangered or was likely to endanger a [NAME].

17. [NAME] went on to explain why it was satisfied that a barring decision was appropriate. Its reasons included the following:

[NAME] are satisfied that on two occasions, you provided inappropriate, rough intimate care to different [RESPONDENT] users in such an insensitive and

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8 callous manner that both [RESPONDENT] users perceived they had been touched inappropriately and in a way that was not expected or for which consent was given. The second occasion, involving [RESPONDENT[NAME] [NAME], occurred despite you being subject to previous disciplinary proceedings following allegations of a similar nature involving male [RESPONDENT[NAME] [NAME] some nine months earlier. Further, you failed to comply with [NAME] care plan, showering him on your own, thereby exposing the [RESPONDENT[NAME] to the potential for further significant harm to be caused.

… The repeat of the insensitive treatment when providing intimate care, despite disciplinary proceedings and the existence of a live written warning on your record, albeit relating to your conduct towards [NAME], indicates the presence of an inability for you to successfully address and modify how you interact with others over a sustained period of time. The continued failure to accept full responsibility for your actions, deflecting culpability to the employer and a lack of training/supervision, as reflected in representations, increases concerns about the risk of harm you continue to represent and the likelihood of harmful behaviour repeated in the future.

The contention that the lack of sensitivity in providing intimate care was due to a training and supervision issue rather than being a safeguarding matter is of concern in terms of determining the future risk of harm you represent in regulated activity. [NAME] maintain that as harm was caused, whether intentional or otherwise, and harm could be caused if the behaviour was repeated, your treatment of the two [RESPONDENT] users is a safeguarding issue. … Your failure to complete mandatory training … undermines any suggestion that the employer was culpable for any lack of training.

… [NAME] have acknowledged that whilst there may have been no intention to cause either [RESPONDENT[NAME] harm, the evidence and more so the apparent inability to empathise with those in your care, shows that you did not consider or indeed care about the impact of your actions on those entrusted to your care …

The ongoing lack of insight demonstrated during the substantive hearing and in representations and need to preserve your own interests only serves to increase concerns about the risk of repetition …

18. [NAME] also addressed [COMPANY] rights under Article 8 of the European Convention on Human Rights. [NAME] specifically considered the appellant’s representation that a “less intrusive measure, ie two-to-one policy (two carers working for a resident at the same time)” should have been a sufficient safeguarding measure but explained that this was not an option open to [NAME] under the legislation. It went on to explain why it considered a barring decision was proportionate.

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9 The issues

19. On reading the bundle in advance of the hearing, the panel was concerned that there was a lack of clarity as to what the grounds of appeal were and what the issues were that we needed to decide. This was a result of the appellant’s original grounds of appeal being prolix, the grant of permission identifying certain points raised in the grounds of appeal as being arguable, but not limiting the grant of permission, and the appellant’s skeleton argument for the hearing also being somewhat prolix and not restricted to the points identified in the grant of permission as being arguable. We therefore sought to clarify matters with the parties at the start of the hearing. After discussion, both parties confirmed that they were content to proceed on the basis that the issues for us to decide were as follows, and they both helpfully structured their closing submissions by reference to this revised list:-

20. First, how, as a matter of legal principle, we should approach the decision of the Citron Tribunal.

21. Secondly, as regards the incident on 6 September 2020 in respect of which [NAME] was satisfied that the appellant “provided inappropriate personal care to [NAME] [RESPONDENT[NAME] [NAME], roughly lifting her leg and being unnecessarily rough and forceful when cleaning her vaginal and clitoral area causing distress”:

(1) [NAME] “roughly” lift [NAME] leg over his shoulder; (2) Was [COMPANY] “unnecessarily rough and forceful” when cleaning [NAME] or “insensitive and callous” rather than “somewhat insensitive and callous”; (3) Was [NAME] caused “distress” as distinct from upset and ‘feeling uncomfortable’.

22. Thirdly, as regards the incident on 10 December 2019 in respect of which [NAME] was satisfied that the appellant “provided personal care to [RESPONDENT[NAME] [NAME] on your own contrary to the care plan and roughly handled [NAME] genitals when washing him causing him to feel uncomfortable”:

(1) Was the manner in which [COMPANY] provided intimate care contrary to the care plan; (2) [COMPANY] roughly handle [NAME]’s genitals and was he “insensitive and callous” rather than “somewhat insensitive and callous”.

23. Fourthly, over-arching points:

(1) [NAME]’s decision letter imply that [COMPANY] intentionally and deliberately caused [NAME] harm; (2) Was the care provided by [COMPANY] “inappropriate”; (3) Training and supervision – was [NAME]’s decision irrational or disproportionate in not regarding training and supervision as being sufficient to mitigate the risk in this case; (4) Was the written warning regarding [COMPANY] conduct with fellow employees an irrelevant consideration?

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10 24. We deal with the first of these issues as part of setting out the legal framework for our decision. We then deal with the issues of fact (or mixed fact and law) raised under the second, third and fourth issues.

Legal framework

[NAME]’s jurisdiction

25. [NAME]’s responsibility for maintaining the adults’ (and children’s) barred lists is governed by the [NAME] 2006 (SVGA 2006).

26. The appellant in this case was originally included on the adults’ barred list using its powers in paragraph 9 and 10(1)(a) of Schedule 3.

27. Under those paragraphs, subject to the right to make representations, [NAME] must include a person on the relevant list if (in summary and in so far as relevant to the present appeal):

a. The person has engaged in conduct which endangers or is likely to endanger a [NAME]; b. The person has been, or might in future be, engaged in regulated activity in relation to adults; and, c. [NAME] is satisfied that it is appropriate to include them in the relevant list.

28. A person included on a barred list may at any time apply to [NAME] for a review under paragraph 18A of Schedule 3 to the SVGA 2006 on the grounds that, in the light of: (a) information which [NAME] did not have at the time of his inclusion in the list; or (b) any change of circumstances relating to him; and/or (c) any error by [NAME], it is no longer appropriate for the person to be included in the list.

29. When the minimum barred period of 10 years has elapsed, a person may apply to [NAME] for permission to seek a review of their inclusion on a barred list under paragraph 18 of Schedule 3 to the SVGA 2006.

The Upper Tribunal’s jurisdiction

30. Under section 4 of the SVGA 2006, an individual who is included in a barred list may appeal to the Upper Tribunal against (so far as relevant in this case): (i) a decision under paragraph 9 of Schedule 3 to include him in a list; and (ii) a decision under paragraph 18A of Schedule 3 not to remove the individual from the list.

31. An appeal to the Upper Tribunal under section 4 of the SVGA 2006 lies only on grounds that [NAME] has made a mistake: (a) on any point of law; or (b) in any finding of fact on which the decision was based (section 4(2)). For the purposes of section 4(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 (section 4(3)).

32. By section 4(5), unless the Upper Tribunal finds that [NAME] has made a mistake of law or fact, it must confirm the decision of [NAME].

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11 33. By section 4(6) if the Upper Tribunal finds that [NAME] has made a mistake of law or fact, it must: (a) direct [NAME] to remove the person from the list, or (b) remit the matter to [NAME] for a new decision.

34. By section 4(7), if the Upper Tribunal remits a matter to [NAME], (a) it may set out any findings of fact which it has made (on which [NAME] must base its new decision); and (b) the person must be removed from the list until [NAME] makes its new decision, unless the Upper Tribunal directs otherwise.

The approach of the Upper Tribunal

35. The correctness of [NAME]’s decision is to be judged by reference to the circumstances as they were at the time of its decision: see SD v [NAME] [2024] UKUT 249 (AAC), especially at [22]-[27].

36. A mistake of law for the purposes of section 4(2)(a) of the SVGA 2006 includes all the well-established categories of error of law, including making an error of legal principle, failure to take into account relevant matters, taking into account irrelevant matters, material unfairness, irrationality or perversity (including in relation to a finding of fact) and failure to give adequate reasons for a decision: see generally R (Iran) v SSHD [2005] EWCA Civ 982 at [9]-[11] and [NAME] v [NAME] [2021] UKUT 325 (AAC) ([NAME]) at [39].

37. What constitutes a mistake of fact for the purposes of section 4(2)(b) of the SVGA 2006 has been the subject of attention in the case law. In cases where the Upper Tribunal has before it only the evidence that was before [NAME], it has been held that the Upper Tribunal is restricted and may only find a mistake of fact in circumstances that would amount to an error of law, i.e. perversity or irrationality: see [NAME] v [NAME] [2025] EWCA Civ 191, [2025] 1 WLR 4531 ([NAME]) at [27] per [NAME] LJ, giving the judgment of the court, having considered previous decisions of the Court of Appeal in [NAME] v RI [2024] EWCA Civ 95, [2024] 1 WLR 4033 (RI) and [NAME] v [NAME] [2023] EWCA Civ 982 ([NAME])). In other cases, where the Upper Tribunal receives evidence that was not before [NAME] (such as oral evidence from the appellant), then it is open to the Upper Tribunal to find a mistake of fact if it is satisfied [NAME]’s finding is wrong.

38. A finding of fact is not wrong merely because the Upper Tribunal would have made a different finding, but neither is the Upper Tribunal restricted (in cases where it has received evidence that was not before the [NAME]) to considering only whether [NAME]'s findings of fact are reasonable. The Upper Tribunal is entitled to evaluate all the evidence itself, make its own findings of fact and draw its own inferences from the evidence before it in order to decide whether [NAME] has made a mistake (see generally PF v [NAME] [2020] UKUT 256 (AAC) (PF), as subsequently approved in [NAME] at [71]-[89] per [NAME] LJ, giving the judgment of the Court, RI at [28]-[37] per [NAME] LJ and at [49]-[51] per [NAME] LJ and [NAME] at [25] per [NAME] LJ).

39. Facts must, however, be distinguished from "value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness [of including the person on the barred list]": [NAME] v [NAME] [2021] EWCA Civ 1575, [2022]

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12 1 WLR 1002 ([NAME]) at [55] per [NAME] LJ (giving the judgment of the court). In that same paragraph, [NAME] [NAME] noted that assessment of the risk presented by the person would not be a question of fact, but a matter for [NAME] as part of the assessment of appropriateness.

40. Any error of fact or law must be material to the ultimate decision, in the sense that it may have changed the outcome: [NAME] at [31].

41. If the Upper Tribunal concludes that a mistake of law or fact has been made it must by section 4(6) remit the matter to [NAME] for a new decision, unless it is satisfied that the only lawful outcome is that the person is removed from the list, in which case the Upper Tribunal must so direct: [NAME] at [73] per [NAME] LJ.

The approach of the Upper Tribunal in ‘second-time-round’ appeals

42. By ‘second-time-round’ appeals, we mean appeals such as this one where the individual has previously appealed successfully against a decision by [NAME], the Upper Tribunal has remitted the matter to [NAME] for a “new decision” under section 4(6)(b) of the SVGA 2006 and the individual has appealed again to the Upper Tribunal against the new decision.

43. The statutory language of “new decision” suggests that the decision is to be taken afresh under the original statutory power (paragraph 9 of Schedule 3 in this case), but as the Citron Tribunal in this case exercised its discretion under section 4(7)(b) to direct that the appellant should remain on the list until [NAME] made its new decision, [NAME] in this case approached the “new decision” as a review under paragraph 18A. (It has not been suggested that this approach was erroneous and we are satisfied in this case that it would make no material difference to the outcome of this appeal if [NAME] had characterised its “new decision” as a decision under paragraph 9 of Schedule 3.)

44. When remitting the case, the Citron Tribunal also exercised its discretion under section 4(7)(a) to set out findings of fact “on which [NAME] must base its new decision”. It is to be noted that because section 4(7)(a) is discretionary, there may be cases in which the Upper Tribunal, having found a mistake of fact or law in [NAME]’s decision, remits the matter to [NAME] for a new decision without setting out any specific findings of fact for the purposes of section 4(7)(a).

45. In this case, the Citron Tribunal did exercise its discretion under section 4(7)(a) to set out three specific paragraphs of facts in [21]-[23] of its judgment. There is no dispute between the parties that those particular findings of fact are binding on the appellant and [NAME] and this Upper Tribunal. We agree that is the correct approach because that is the plain intent and effect of section 4(7)(a).

46. However, questions have arisen on this appeal as to:

a. [NAME] is entitled in its new decision to rely on findings of fact going beyond the facts in [21]-[23] of the Citron judgment;

b. If so, whether [NAME] can rely on facts that were:

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13 i. Not included in the first decision letter; or ii. Included in the first decision letter and not challenged by the appellant on the first appeal; iii. Included in the first decision letter and challenged by the appellant on the first appeal but either:

1. Not dealt with in the findings of fact at [21]-[23] on which the Citron Tribunal directed [NAME] to base its new decision; or, 2. Not dealt with by the Citron Tribunal at all.

c. Whether the appellant is entitled to challenge in this appeal findings of fact in [NAME]’s new decision letter that were also in [NAME]’s first decision letter, but were: i. Not challenged by the appellant in the first appeal; or ii. Challenged by the appellant in the first appeal but either:

47. In advance of this hearing, the judge drew to the parties’ attention the possible relevance of the principles of res judicata (Latin for “a matter judged”), including cause of action estoppel, issue estoppel and abuse of process (the latter often being referred to as “the rule in [NAME]”). The parties were referred to [COMPANY] v [NAME] UK [COMPANY] [2013] UKSC 46, [2014] AC 160 (Virgin Atlantic) at [17]-[24] for the general principles and to the discussion of their relevance to an appeal under the SVGA 2006 by the Court of Appeal in [NAME] at [61]-[73]. The judge directed the parties to make submissions on the same. [NAME] provided submissions in writing in advance of the hearing and also dealt with these issues in oral closing submissions. Although the judge’s directions had also been sent to the appellant’s solicitor in advance of the hearing, Mr [APPELLANT] as counsel for the appellant had not personally received the judge’s directions. Time was taken at the hearing to explain the directions to him and he was given additional time over the lunch adjournment to prepare submissions. He confirmed that he had had sufficient time to address the issues.

[NAME] is not [COMPANY] considering only the facts set out in the section 4(7)(a) direction.

48. We have considered, first, the appellant’s submission that [NAME] is not entitled to rely in its new decision on any facts other than those at [21]-[23] of the Citron Tribunal judgment. This interpretation of the statute is strongly resisted by [NAME], and was not considered a tenable construction by Judge Brewer when she granted permission to appeal in this matter (albeit that she did not limit the grant of permission).

49. We agree with [NAME] and reject the appellant’s submission. What section 4(7)(a) requires is only that [NAME] must “base” its “new decision” on any findings of fact that the Upper Tribunal has set out under that section. Although we acknowledge that section 4(7)(a) is capable of being interpreted in the way for which the appellant contends, that is not the only interpretation available. Having regard to

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14 the statutory language and the context, in our judgment the use of the term “base” indicates only that the facts found by the Upper Tribunal must form the basis of the new decision, not that those facts must be the only ones that [NAME] takes into account.

50. The statute is clear that [NAME], as the body charged by Parliament with the regulatory function, is required to make a “new decision”, not merely to carry out a review or revision of its decision. [NAME] only to the facts found by the Upper Tribunal would significantly restrict [NAME]’s regulatory function. The point is made at [43] of [NAME] that there is a general principle that a statutory body cannot fetter its own freedom to perform its statutory duties or exercise its statutory powers. Those duties and powers could be restricted by statute, of course, but we consider that clearer words would have been required if section 4(7)(a) was to restrict [NAME]’s exercise of its regulatory function to the extent that it could not take into account other facts relevant to its decision in addition to those specified by the Upper Tribunal.

51. There is also a practical consideration: it is rare for the whole factual matrix considered by [NAME] to be in issue on an appeal to the Upper Tribunal.

Accordingly, as happened in this case, the Upper Tribunal will usually only receive evidence and make findings of fact about certain core issues in the case. It would be impractical and unrealistic for [NAME] to have to leave out of account all the background facts when dealing with the “new decision” just because they were not in issue before the Upper Tribunal and therefore not set out in the section 4(7)(a) direction.

Why cause of action estoppel does not apply to this appeal

52. As described at [20] and [26] of Virgin Atlantic, cause of action estoppel is one aspect of the res judicata principle. It arises where the cause of action in later proceedings is identical to that in the earlier proceedings, the latter having involved the same parties and the same subject matter. Where cause of action estoppel applies, it is an absolute bar to relitigating all points decided in the earlier proceedings, in the absence of fraud (or similar).

53. The application of cause of action estoppel in relation to appeals under section 4 of the SVGA 2006 was considered in [NAME]. The issue in that case was whether [NAME] was bound by findings of fact made by the Teachers’ Regulation Authority ([NAME]) in disciplinary proceedings concerning the same teacher. [ADDRESS] of Appeal held not. In so concluding, it accepted, on the basis of the House of Lords’ decision in [NAME] v Secretary of State for the [NAME] [1990] 2 AC 273 ([NAME]), that cause of action estoppel may in principle apply in public law proceedings where “Parliament has enacted a statutory scheme which is designed to establish the existence of a legal right … unless the intention to exclude the res judicata principle could be inferred from construction of the relevant statutory provisions” (see [63] of [NAME]). However, the Court of Appeal went on at [66]-[70] to discuss the difficulty of identifying what the ‘cause of action’ before the [NAME] was said to be that could be the subject of an estoppel so far as [NAME]’s decision was concerned. At [66]-[67] the Court of Appeal observed:

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15 66. One of the problems in seeking to apply the Thrasyvoulou approach in the context of these particular public law proceedings is that at least one and probably both of the two separate statutory schemes with which we are concerned are not designed to finally establish the existence of a legal right. One might fairly describe the 2006 Act as conferring a statutory right on the [NAME] to make a barring order against certain individuals, and the 2002 Act and the regulations made under it as conferring a statutory right on the Secretary of State (and the [NAME] acting on his or her behalf) to make prohibition orders against teachers. But the [NAME] does not need to resort to any form of litigation to exercise its right, and the disciplinary process that the [NAME] initiates when an allegation of professional misconduct is made is of a very different character from bringing a claim in a court or tribunal against someone based on facts constituting an alleged legal wrong (or conferring an alleged legal right on the claimant).

67. Neither scheme is designed to establish the existence of a legal right, and the criteria which have to be satisfied before the different statutory rights conferred on the two bodies can be exercised are not identical….

54. Notwithstanding the Court of Appeal’s observations in those paragraphs, we agree with the parties in this case that there is no difficulty in identifying one respect in which cause of action estoppel will apply in relation to appeals under section 4 of the SVGA 2006. The right of appeal against a [NAME] decision is a cause of action in respect of that decision which is designed, at least in part, to establish the existence of a legal right to removal from a barred list. Any attempt to bring a second appeal against the same [NAME] decision would therefore be barred by cause of action estoppel. Equally, we agree with the parties that cause of action estoppel does not prevent a second appeal from being brought against a new decision by [NAME]. The new decision gives rise to a second cause of action.

Why issue estoppel, including the [NAME] principle, does apply to this appeal

55. Issue estoppel, which is also an aspect of the res judicata principle, is the principle that, even where the cause of action is not the same in the later action as it was in the earlier one, any issue that is necessarily common to both proceedings that was decided on the earlier occasion is binding on the parties: see Virgin Atlantic at [17]. The related rule in [NAME] (1843) 3 Hare 100 precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. The House of Lords in Virgin Atlantic went on to consider the relationship between the two, and at [22](3)-[24] concluded (confirming the previous House of Lords authority of [NAME] v [COMPANY] [1991] 2 AC 93 ([NAME])) that the general rule that combines those two principles is that:

Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually

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16 be absolute if it could with reasonable diligence and should in all the circumstances have been raised.

56. The observations of the Court of Appeal in [NAME] as to the applicability of the res judicata principle in public law proceedings are also applicable to the question of whether issue estoppel applies in public law proceedings. As noted above, the Court of Appeal considered that the res judicata principle may be excluded if the intention to exclude that principle can be inferred from construction of the relevant statutory provisions. We accordingly invited the parties to address us on the question of whether section 4(7)(a) of the SVGA 2006, containing as it does a power for the Upper Tribunal to direct that certain findings of fact should be binding on the parties, meant that there was an intention to exclude the operation of the principle of issue estoppel.

57. Mr [RESPONDENT] for [NAME] submits not and argues that the appellant cannot on this appeal challenge issues that were determined by the Citron Tribunal previously. Mr [APPELLANT] for the appellant agrees in principle, albeit that he argues that the issue estoppel runs the other way, in the sense that he submits that [NAME] could not in its second decision rely on matters that he submits [NAME] could/should have raised in the context of the first appeal.

58. We agree with the parties on the point of principle. The Upper Tribunal is a superior court of record (see section 3(5) of the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007)) and its decisions are ordinarily binding on the parties who appear before it. On appeals under section 4 of the SVGA 2006 the Upper Tribunal may make decisions on issues of both fact and law that arise on the appeal. Issue estoppel applies to issues of law as much as to issues of fact. Once that is understood, we do not consider that the specific provision made in section 4(7)(a) for making certain factual findings of the Upper Tribunal binding can properly be construed as evincing a Parliamentary intention that the decision of the Upper Tribunal on an appeal would not otherwise be binding on parties as to the issues it has decided. Rather, section 4(7)(a) seems to us to be there to make clear that the Upper Tribunal’s jurisdiction is not [COMPANY] merely to adjudicating on whether [NAME] has made a mistake in any finding of fact as permitted by section 4(2)(b), but is also empowered to make its own findings of fact. It seems to us to be the equivalent provision to section 12(4)(b) of the TCEA 2007 which empowers the Upper Tribunal to make findings of fact when it remakes a decision on an appeal under section 11 of that Act. We do not therefore consider that the inclusion of section 4(7)(a) in the SVGA 2006 indicates that Parliament intended to exclude the operation of the otherwise generally applicable legal principles of issue estoppel.

59. It follows that we consider that the general rules in [NAME]/Virgin Atlantic apply to these proceedings so that:

a. The parties in this case (and we) are bound by any issues that were raised in the first proceedings before the Citron Tribunal, and decided by that Tribunal, whether or not the issue was specifically included in the scope of the Citron Tribunal’s section 4(7)(a) direction; and

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17 b. It is not open to the appellant to raise in these proceedings any issue that could with reasonable diligence and should in all the circumstances have been raised as a challenge to the first decision as part of the first appeal.

60. The House of Lords in those cases held that the general rules may be departed from in special circumstances if necessary to avoid injustice. However, especially where an issue was both raised and decided on a first appeal, it is unlikely that will be appropriate.

61. We observe that the effect of these general rules as they apply in this context is necessarily somewhat one-sided. Since it is the appellant who has the right to appeal the decision of [NAME], it is the appellant who is required to raise, at the first opportunity in the first appeal, any challenge to any finding of fact on which that first decision was based. A failure to do so may result in an appellant being barred from raising any challenge where the same finding of fact is relied on by [NAME] in its second decision.

62. Contrary to the appellant’s submission, the same is not true for [NAME]. In principle, [NAME] may when making a new decision on remittal under section 4(6)(b) rely on facts that it did not previously rely on in relation to the first decision, whether or not it was aware of those facts at the time. Doing so might invite scepticism as to whether the facts are sufficiently credible or weighty to support a barring decision if they were not relied on first time round, but there is no prohibition on [NAME] taking that approach. [NAME] bases its decision on any facts set out by the Upper Tribunal under section 4(7)(a) and treats the decision of the Upper Tribunal as binding in relation to all the issues of fact and law that it decided, [NAME] is free to exercise its regulatory function as it sees fit when taking its new decision.

Our decision on the substance of the appeal

63. We now turn to deal with the second, third and fourth issues as we identified them above at paragraphs 21 to 23. In doing so, we set out the findings of fact that we have reached having had the benefit of hearing oral evidence from the appellant. Our findings of fact are made on the balance of probabilities.

The incident of 6 September 2020 involving [RESPONDENT[NAME] [NAME]

(1) [NAME]’s leg

64. The appellant argues that [NAME] made a mistake of fact in finding in the new decision that he “roughly” lifted [NAME]’s leg. In [NAME]’s first decision, [NAME] found that the appellant “handled” [NAME] “in a forceful manner lifting her leg onto [his] shoulder …”. The appellant challenged that finding before the Citron Tribunal. Although it was not one of the issues specifically identified by Judge Citron when granting permission to appeal, it had (as noted above at paragraph 10) been raised by the appellant in the application form, the grant of permission to appeal was not “formally [COMPANY]”, and the appellant argued at the hearing that [NAME] had made a mistake of fact in respect of that finding. The appellant’s witness statement for that hearing included the following at [8]-[9]:

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18 8. … Before I started to clean her vagina, [NAME] raised her leg to allow me to clean her. As I was cleaning her vagina, her leg rested in my shoulder only for a few seconds.

9. I never asked [NAME] to put her leg on my shoulder nor did I grab her leg and put it on my shoulder.

65. Mr [APPELLANT]’s skeleton argument for the hearing included the following:

“The [NAME] made findings of fact which were not based on evidence or inferences which could be drawn from that evidence. In her handwritten statement dated 6 September 2020 at 6.50pm [NAME] asserted: (i) she rolled on her left side expecting [NAME] to go at the back to clean her bottom (p 52); (ii) [COMPANY] came to the front (p 52); (iii) he grabbed hold of her leg forcing it over his shoulder (p 52); and (iv) from that position, ie from the front, he cleaned her bottom (p 52). The irreversible inference from [NAME]’s evidence is that it would have been impossible for [COMPANY] to have been in front, facing [NAME], grab her leg, forcing it over his shoulder and then, from that position, clean her bottom. … [NAME]’s evidence on this point does not seem to make much sense. She might have been mistaken in her evidence or simply mis-recalled the incident. [NAME] has therefore failed to prove facts (ii) to (iv) above on a balance of probabilities.”

66. We therefore consider that the issue of whether the appellant forcefully raised [NAME]’s leg was properly before the Citron Tribunal as an issue for it to decide. If it decided that issue, then we consider that the principle of issue estoppel (see above paragraphs 55-62) would apply so as to prevent the issue being raised again in this appeal.

67. The reason there is doubt about whether the issue was decided is because it was not mentioned in express terms in the Citron Tribunal’s judgment. However, we accept the submission of Mr [RESPONDENT] that this issue was determined by the Citron Tribunal. At [19]-[20] of its decision, the Citron Tribunal set out its assessment of the appellant’s credibility (see above paragraph 12). It explained that it accepted much of what the appellant said, including the three specific points that it identified at [19], but that it did not accept everything that the appellant said. In particular, at [20c] it said that, in relation to the aspects of the evidence for which there are “near-contemporaneous written accounts of what had happened, in particular with regard to the 6 September 2020 incident”, when “those accounts and that of [COMPANY] clashed, we had to balance the strengths and weaknesses of all the evidence”. It then went on at [21]-[22] to set out the respects in which it considered [NAME] had made mistakes of fact, without mentioning the forceful raising of the leg. At [23] it dealt specifically with one respect in which it considered [NAME] had not made a mistake (i.e. that [COMPANY] did “press hard” with a wipe in the area of [NAME]’s clitoris).

68. The Citron Tribunal did not deal specifically with the raising of the leg, but we consider this is likely because the focus of Citron Tribunal was on the sexual aspect of the case, as [NAME] had found it to be in its first decision, and the Tribunal considered it unnecessary to say anything more specific about the respects in

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19 which it found that [NAME] had not made mistakes. However, we consider that, when the decision is read as a whole and in context, it is clear that the appellant’s evidence about the raising of [NAME]’s leg was rejected by the Citron Tribunal. We reach this conclusion because the raising of the leg is one aspect of the case that was dealt with in the contemporaneous statements to which the Citron Tribunal refers at [20c]. As the Citron Tribunal in this paragraph explained that it did not accept everything the appellant had said, especially where it contradicted contemporaneous written accounts, and did not in its decision specifically identify that [NAME] was mistaken in relation to this issue, we consider it to be clear that the Citron Tribunal rejected the appellant’s case on this point. Moreover, the Citron Tribunal did at [22] find that he was “somewhat insensitive, or callous, as to the manner of his giving intimate care”, which reasons are also consistent with it having rejected the appellant’s evidence regarding the lifting of [NAME]’s leg.

69. It follows that the appellant is estopped from challenging [NAME]’s finding of fact regarding the lifting of the leg again in these proceedings, unless special circumstances require that he be permitted to do so in the interests of justice. We are not persuaded that he should be so permitted. The issue was raised, fully litigated and determined on the previous occasion, when the appellant was represented by the same legal team as he is now. The absence of express reasons in the decision dealing with the point does not justify relaxing the general principle of issue estoppel in circumstances where we are satisfied, as we are here, that the Citron Tribunal did in fact determine the point and that its reasons are adequate to explain what it decided on this issue and why.

70. We add that, even if we are wrong and issue estoppel does not apply, we would have reached the same conclusion ourselves. We were unconvinced by what [COMPANY] said in his witness statement and oral evidence regarding the lifting of [NAME]’s leg. It was inconsistent with [NAME]’s contemporaneous accounts, which are specific and detailed about this (in particular this passage from her handwritten witness statement prepared the same day as the incident: “He came to the front and I lifted my leg (as I often do for personal care) and he said ‘put your leg over my shoulder’. I said ‘I don’t need to do that’. He insisted and grabbed hold of my leg (which is painful due to nerve damage) and forced it over his shoulder 2 or three times”). It was also inconsistent with what the appellant himself said in his employer’s investigation meeting on 2 October 2020 about having ‘upped’ [NAME]’s leg.

71. It follows that [NAME] did not make a mistake of fact in finding that the appellant “roughly” lifted [NAME]’s leg. We add, for the avoidance of doubt, that we do not consider anything turns on [NAME] having described the lifting of the leg as “forceful” in its first decision letter and as “rough” in the second letter. We do not consider there is any material difference between the two adjectives in this context.

(2) Unnecessarily rough and forceful / insensitive and callous

72. As to [NAME]’s findings that [COMPANY] was “unnecessarily rough and forceful when cleaning [[NAME]’s] vaginal and clitoral area” and that he provided “rough intimate care … in such an insensitive and callous manner that [[NAME]] perceived [she] had been touched inappropriately”, this is also an issue that was determined by the

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20 Citron Tribunal as it was the subject of specific direction by the Tribunal under section 4(7)(a). At [22] of the Citron Tribunal’s decision it determined that “[COMPANY] was somewhat insensitive, or callous, as to the manner of his giving intimate care, to an extent that the recipients felt they were being treated inappropriately” and at [23] that [COMPANY] did “’press hard’ with a wipe in the area of the [RESPONDENT[NAME]’s clitoris”. [NAME] was required to base its new decision on those findings.

73. It is concerning that in its new decision [NAME] has used language that goes beyond that used by the Citron Tribunal and which does in our judgment suggest a greater level of force in relation to the cleaning of [NAME]’s vaginal area than the Citron Tribunal found there to be. “Unnecessarily rough and forceful” sounds worse than ‘pressing hard’, and “insensitive and callous” sounds more serious than “somewhat insensitive, or callous”, both because of the removal of the qualifying “somewhat” and because of the use of the conjunctive “and” rather than disjunctive “or” that the Citron Tribunal used when expressing its finding.

74. [NAME] should, in our judgment, simply have based its decision on the findings of the Citron Tribunal as required by section 4(7)(a). Its failure to do so is an error of law. Taken on its own, however, we would not have been satisfied that this was a material error because the difference in language is minor. However, as we have also found that there are other respects in which [NAME] in its new decision has erroneously departed from the findings of the Citron Tribunal in a way that seeks to make [COMPANY] conduct appear more serious than the Citron Tribunal found it to be (see below paragraphs 76-86), we do consider this to be a material error as it is possible that it has materially contributed (cumulatively with these other errors) to [NAME] making a decision that it may not have made had it based its decision on the findings of the Citron Tribunal as it is required by law to do.

(3) Distress

75. Finally, as regards [NAME]’s finding in the new decision that [NAME] was caused “distress”, this word was also used by [NAME] in the first decision and the Citron Tribunal made a relevant finding about it in a paragraph of its judgment that was specifically the subject of the section 4(7)(a) direction. At [22], the Tribunal found that both [NAME] and [NAME] were “upset and made uncomfortable” by perceiving that their private parts had been fondled. The appellant argues that [NAME] has again wrongly departed from the finding of the Citron Tribunal in this respect, but we disagree. We consider that it is legitimate to describe someone who has been “upset and made uncomfortable” as having been distressed. Moreover, as the word “distress” was used by [NAME] in its first decision, the appellant should have challenged that finding in the first appeal if he wished to do so (see paragraphs 55-62 above). Yet further, we would in any event conclude, having read the contemporaneous evidence, that [NAME] was caused “distress” by the appellant. She expressed distress when complaining about it, was observed to be affected by it for days after the incident and requested not to see the appellant again (UTB, pp 89, 90, 91, 154).

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21 The incident of 10 December 2019 involving [RESPONDENT[NAME] [NAME]

(1) Care contrary to the care plan

76. The appellant argues that [NAME] erred in finding in the new decision that the care that the appellant provided to [NAME] was “contrary to the care plan” and that [COMPANY] “failed to comply with [NAME]’ care plan, showering him on [his] own, thereby exposing the [RESPONDENT[NAME] to the potential for further significant harm to be caused”. This was not a finding of fact that [NAME] included in its first decision letter, so the appellant could not have challenged it in the first appeal.

77. The basis for [NAME]’s finding of fact in this respect is the notes of a meeting between the appellant and the home manager on 13 December 2019 (UTB, p 92) which shows the manager asking [COMPANY] why he showered [NAME] on his own rather than with the other careworker. [NAME] has inferred from this that the care plan was for [NAME] to have two staff when being showered (UTB, p 242).

78. However, the fact that the manager asked [COMPANY] this question in a meeting does not show that he acted contrary to the care plan. In oral evidence, [COMPANY] said he had never seen the care plan because it was not his job to look at care plans, he just did whatever he was told to do by the senior on the shift. At the meeting on 13 December 2019, when asked why he showered [NAME] on his own, [COMPANY] answered that the other careworker did other tasks and that his supervisor had “wrote down that as me working on my own. It was on the list…”. [COMPANY] evidence, both to us and his employer, was thus that he had simply been doing what he was told to do.

79. The care plan itself was not provided to, or obtained by, [NAME] and is not in the bundle. However, there is some evidence about it in the bundle. An email in the bundle from a social worker at Cambridgeshire County Council (UTB, p 154) states with regard to this incident: “This was looked into by Police but care plan indicated that this particular [RESPONDENT[NAME] needed washing and drying of the genital area there was nothing to indicate that touch was anything beyond the care and support need.” The Crime Report at UTB p 179 includes the following: “he touched [[NAME]] genitals because it was his job to both clean and dry them (the [NAME] confirm he SHOULD be doing this)” and “The OIC has documented details of the care plan in place for the victim which specifies the washing and drying of the genitals”.

80. Having considered all the documentary and oral evidence we are satisfied that [NAME] made a mistake of fact in concluding that the appellant showering [APPELLANT] on his own was contrary to the care plan. We need only be satisfied that the finding of fact is wrong (see above paragraphs 37-38), but for completeness we record that we are satisfied that this is a finding of fact that is not just wrong, but is also irrational or perverse as there was no evidential basis for it and, in fact, evidence to the contrary.

(2) Rough handling / insensitive and callous

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22 81. The appellant further argues that [NAME] has made a mistake of fact in concluding that the appellant “roughly handled” [APPELLANT] genitals and that he provided “rough intimate care” to [NAME] in an “insensitive and callous manner”.

82. This was not a finding of fact that [NAME] made previously in its first decision. Previously, [NAME] found that the appellant “fondled” [NAME]’s genitals, consistent with the complaint that was made by the resident (UTB, pp 92 and 179).

83. That finding of fact was challenged by the appellant in the first appeal and the Citron Tribunal decided that the appellant had not “fondled” [NAME]’s genitals. It found ([22]) that “the way in which [RESPONDENT] interacted with the [RESPONDENT] users was such that they perceived that their private parts were being fondled” and that this was “because of the way [COMPANY] carried out his task of intimate care” and that he was “somewhat insensitive, or callous … to the extent that the recipients felt they were being treated inappropriately”.

84. Mr [RESPONDENT] in his closing submissions referred to UTB, p 243 in the structured judgment process document and suggested that [NAME] had inferred that [COMPANY] handling of [NAME] was rough because his handling of [NAME] was rough.

85. We do not consider that it was open to [NAME] in the light of the Citron Tribunal decision, or the documentary evidence, to find that the appellant “roughly handled” [NAME]’s genitals. The complaint was of “fondling”, which is not a word that can reasonably be equated with “rough handling”. There is no documentary evidence that supports a finding that [APPELLANT] roughly handled [NAME]’s genitals, and the appellant denied it in cross-examination. The words may have been taken from the Investigation Report into the [NAME] incident prepared by [COMPANY] employer (UTB, p 138), which referred to the previous incident with [NAME] as follows: “[[COMPANY]] was involved in a safeguarding referral December 2019 as a result of rough handling a resident. This was not substantiated. He has shown consideration to residents and overall [is] of a gentle nature.” However, that report has itself incorrectly characterised the nature of the previous allegation and cannot reasonably be relied on as evidence of what the allegation was at the time. It is also not in our judgment rational for [NAME] to infer from the fact that there is evidence of forceful lifting of [NAME]’s leg that [COMPANY], who was otherwise perceived as a gentle person, “roughly handled” [NAME] the previous [NAME]. Again, we are therefore satisfied that this finding of fact was wrong, but we would also have found it to be perverse if it were necessary for us to do so (see above paragraphs 37-38).

86. Further, the Citron Tribunal had specifically considered the issue of how the appellant handled [NAME]’s genitals and had made specific findings of fact on the basis of which section 4(7)(a) required [NAME] to base its new decision. Again, in finding that the appellant “roughly handled” [NAME]’s genitals, [NAME] failed to do so. What we have said above in relation to [NAME] about [NAME] replacing the Tribunal’s assessment that [COMPANY] was “somewhat insensitive, or callous” with “insensitive and callous” also applies here. In all these respects, [NAME] has erred in law by failing to base its new decision on the findings of fact of the Citron Tribunal.

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23 The over-arching points

(1) Intentional and deliberate harm?

87. The appellant argues that [NAME]’s new decision letter implies that [COMPANY] intentionally and deliberately caused [NAME] harm, contrary to the findings of the Citron Tribunal. We disagree. The letter expressly acknowledges that there was no intention to cause either [RESPONDENT[NAME] harm but explains why [NAME] considers there does not have to be any intention to cause harm for harm to be caused or for there to be concerns about the future risk of harm a person may represent in a regulated activity position. There is no mistake of fact or law in [NAME]’s conclusion in that respect. [NAME]’s reasoning is logical and reasonable.

(2) “Inappropriate”

88. The appellant argues that [NAME] should not have described the care he provided to [NAME] and [NAME] as “inappropriate” given that in both cases it was care that was required by their care plans.

89. So far as [NAME] is concerned, we agree that [NAME] erred in law in describing the care provided to [NAME] as “inappropriate, rough intimate care” for essentially the same reasons as we have found above at paragraphs 76-80 that the care provided to [NAME] was not provided “roughly” and was provided in accordance with the care plan. [NAME]’s finding in this respect is also not consistent with the findings of fact of the Citron Tribunal on which [NAME] was required by section 4(7)(a) to base its decision. What the Citron Tribunal found was that “the recipients felt they were being treated inappropriately”. [NAME] should have based its decision in respect of [NAME] on that finding.

90. As regards [NAME], the position is a little different. [NAME] should also have based its decision in relation to [NAME] on the Citron Tribunal’s finding that [NAME] felt she was being treated inappropriately, we do not consider that [NAME] has erred in using the word “inappropriate” to describe, generically, the nature of the care that he provided to [NAME]. Although it was not “inappropriate” for him to be cleaning her vaginal and clitoral area, it is reasonable to describe the way in which he carried out her care as “inappropriate”, given the findings that the appellant forcefully lifted [NAME]’s leg and ‘pressed hard’ with a wipe.

(3) Training and supervision

91. The appellant argues that [NAME]’s decision was irrational or disproportionate in not regarding training and supervision as being sufficient to mitigate the risk in his case. Although we have some reservations about [NAME]’s reasoning in this respect in its decision letter, we do not consider that [NAME]’s approach to the training and supervision issue was irrational or disproportionate.

92. In its decision letter, [NAME] stated that “there is no less onerous measures available to [NAME] other than inclusion in the barred lists … It is not within [NAME]’s legislative remit to impose a partial bar or less intrusive measures as proposed by your legal representative”. That is correct, and is a point that was made by the three-judge

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24 panel in KS v [NAME] [2025] UKUT 45 (AAC) at [61]-[63]. It does not mean, of course, that [NAME] does not have to take into account, when considering whether it is appropriate and proportionate to place an individual on the barred list, whether it is necessary to do so in order to safeguard children and [NAME] adults from harm in future. A risk that could be mitigated by training, and which [NAME] was satisfied the individual would mitigate in future by undertaking training, might therefore lead to a decision that barring was disproportionate.

93. However, [NAME] has not, contrary to what we understand to be the substance of the appellant’s submission, ended its analysis of proportionality with the statement we have quoted in the previous paragraph about less onerous measures not being available to [NAME]. It has, rather, considered in the light of all the evidence whether the level of risk posed by the appellant should be regarded as being lower than it might otherwise be because his conduct can in part be explained by a lack of training or supervision, or whether any future risk could reasonably be mitigated by training or supervision. That is the right approach and we are not satisfied that its conclusions in this regard were irrational or disproportionate.

94. In the light of our conclusions in relation in particular to [NAME], [NAME] will need to revisit the question of appropriateness and proportionality. However, we make the following observations as to [NAME]’s reasoning on this issue in the light of the oral evidence we have received at this hearing, and drawing on the specialist expertise of our members:

a. [NAME] was not wrong to find that the appellant had failed to complete mandatory training at the outset of employment when required by the employer (UTB, p 223); b. Training is not required for someone to know that they need to be sensitive, and not forceful, when providing intimate personal care, although we consider that training may assist in terms of addressing how consent is sought and managing the [RESPONDENT[NAME]’s expectations of how care will be provided; c. [NAME] was not wrong in its assessment that the appellant continues to demonstrate a lack of insight, or in treating that as a relevant factor to weigh in the balance when considering the appellant’s submissions about training and supervision.

95. As regards the appellant’s lack of insight, we note, in particular, that the appellant remained steadfast under questioning that [NAME] was not distressed (or upset) by the personal care he provided, even after he had been taken to the documents in the bundle where [NAME] reported feeling upset, and other carers had observed her being upset. His belief in that regard was based on her not having expressed any concern to him at the time, and having said ‘thank you’ when he left her room. Further, in oral evidence, he confirmed that his position was still as it had been at the investigatory meeting with his employer (UTB, p 125) that he has not learned anything from this situation as “nothing happened”.

(4) Written warning regarding [COMPANY] conduct with fellow employees

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25 96. In its first decision, [NAME] had included [COMPANY] conduct towards [NAME] “by adjusting their clothing and hugging them without their permission” as one of what were in that decision three incidents of what [NAME] identified as “relevant conduct” “of a sexual nature” involving a [NAME]. [NAME] subsequently accepted that [COMPANY] conduct towards his fellow employees was not “relevant conduct” for the purposes of the SVGA 2006 as it did not concern [NAME] adults. However, [NAME] has still relied on this warning in its new decision letter in the following passage:

The repeat of the insensitive treatment when providing intimate care, despite disciplinary proceedings and the existence of a live written warning on your record, albeit relating to your conduct towards [NAME], indicates the presence of an inability for you to successfully alter and modify how you interact with others over a sustained period of time.

97. The appellant argues that [NAME] should have left the warning in relation to [NAME] out of account altogether as an irrelevant consideration. We are sympathetic to that submission because the appellant’s conduct towards his [NAME] was different in character to the conduct towards [RESPONDENT] users that has led to the barring decision. Moreover, the appellant’s (unchallenged) evidence is that, having been warned, he did not repeat that behaviour. However, the conduct is not wholly different, in the sense that both the conduct towards [NAME] and the conduct towards [RESPONDENT] users involved close personal interaction and failure to anticipate the reaction and feelings of others. We are therefore satisfied that the warning was not an irrelevant factor to take into account.

Conclusion and disposal

98. We have found that [NAME]:

a. Made a mistake of law in finding that [COMPANY] was “unnecessarily rough and forceful when cleaning [[NAME]’s] vaginal and clitoral area” and that he provided “rough intimate care … in such an insensitive and callous manner…”, rather than basing its decision on the facts found by the Citron Tribunal (above, paragraphs 72-74); b. Made a mistake of fact in concluding that the appellant showering [NAME] on his own was contrary to the care plan (above, paragraphs 76-80); c. Made a mistake of fact and/or law in concluding that the appellant “roughly handled” [NAME]’s genitals and that he provided “rough intimate care” to [NAME] in an “insensitive and callous manner” (above, paragraphs 81-86); d. Made a mistake of law in finding that the care [COMPANY] provided to [NAME] was “inappropriate” rather than basing its decision on the facts found by the Citron Tribunal (above, paragraphs 88-90).

99. By section 4(6) of the SVGA 2006, we must therefore either: (a) direct [NAME] to remove the person from the list, or (b) remit the matter to [NAME] for a new decision. In accordance with the legal principles we have set out above (paragraph 41), we

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26 may only remove the appellant from the list if we are satisfied that is the only lawful outcome. We are not so satisfied. Although our conclusions mean that the appellant’s conduct was less serious, in particular in relation to [NAME], than [NAME] considered it to be in its new decision (and far less serious than [NAME] considered it to be in his first decision), this is still not a case where the only lawful outcome would be removal of the appellant from the list. The current position should therefore be maintained pending that new decision, so, pursuant to section 4(7)(b), we direct that the appellant remain on the barred list until [NAME] takes its new decision.

100. In remitting the matter to [NAME], for the reasons we have set out above at paragraphs 55-62, our decision is binding on the parties as to the issues of fact and law that we have decided. However, for the avoidance of doubt, we also direct, pursuant to section 4(7)(a) that [NAME] must base its decision on the findings of fact that we have made in this decision. Our decision should also be regarded as incorporating, and re-making, the findings of fact made by the Citron Tribunal in its decision.

Holly Stout

Judge of the Upper Tribunal

[NAME] Member

[NAME] Member

Authorised by the Judge for issue on 22 June 2026

Re-issued 13 July 2026 under rule 42, to correct accidental omission of section 4(7)(b) direction.