Upper Tribunal Allows Appeal Against DBS Decision

OUTCOME: Allowed

1

IN THE UPPER TRIBUNAL UT ref: UA-2023-001118-V ADMINISTRATIVE APPEALS CHAMBER NCN No. [2025] UKUT 036 (AAC)

On appeal from the Disclosure and Barring Service

ORDER

The Order of 4 October 2023 remains in place.

Any breach of that Order is liable to be treated as a contempt of court and may be punishable by imprisonment, fine or other sanctions under section 25 of the Tribunals, Courts and Enforcement Act 2007. The maximum punishment that may be imposed is a sentence of two years’ imprisonment or an unlimited fine.

Between: [APPELLANT] Appellant - v –

The Disclosure and Barring Service Respondent Before: Upper Tribunal Judge Wright

Upper Tribunal Member [NAME] Upper Tribunal Member [NAME] date: 30 January 2025 Decided after an oral hearing on 10 October 2024

Representation: Appellant: [redacted] bono by Advocate Respondent: [redacted]

DECISION

This decision is given under section 4 of the Safeguarding Vulnerable Groups Act 2006

The appeal is allowed.

The decision of the [NAME] made on 12 May 2023 to retain the appellant on the Children’s and Adults’ [NAME] involved mistakes on points of law and fact. Pursuant to section 4(6)(b) of Safeguarding Vulnerable Groups Act 2006 the Upper Tribunal remits the matter to the [NAME] for a new decision. The Upper Tribunal directs that the [NAME] shall not remove the Appellant’s name from the [NAME] pending the making of the new decision.

[NAME] v [NAME] ref: UA-2023-001118-V

NCN No. [2025] UKUT 036 (AAC)

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REASONS FOR DECISION

Introduction 1. This is an appeal by [NAME] against the [NAME] decision of 12 May 2023 to retain her name on the Adults’ and Children’s [NAME]. Our decision in summary 2. We allow the appeal by [NAME] and remit her case to the [NAME] to make a new decision. [NAME] will remain on both [NAME] lists in the meantime.

3. The appeal is allowed because the [NAME] (i) made a mistake of fact about [NAME] failing to accurately report and record the incident which occurred on 10 August 2022, (ii) erred in law in failing to take into account all the relevant evidence about whether [NAME] had shown insight and remorse for what had occurred on 10 August 2022, and (iii) it further erred law by failing to take into account the character references [NAME] had supplied to the [NAME]. The appeal is dismissed on all other grounds. The [NAME] decision in summary 4. The core factual basis for the [NAME] decision was that [NAME] had failed to follow safeguarding procedures on 10 August 2022 in that she had: (i) failed to secure a commode/shower chair prior to assisting a service user to use it; (ii) failed to seek medical assistance and moved a service user who had fallen to the floor without assessing their injuries; and (iii) failed to accurately record and report the incident.

5. The [NAME] decision letter further explained the basis for its barring decision as follows: “the evidence showed that it was in the service users [NAME] plan, as part of the risk assessment to prevent her from falling forward, to secure the commode and it's reasonable to suggest that you should have known to do this without instruction. You should have checked it was secure, and/or asked your colleague if it was secure before you moved away, and not assume your colleague had done it. Whilst you stated your colleague was the 'lead carer' you still had equal responsibility for the welfare of the service user. Your comments that you didn't believe the service user was injured or in pain because she hadn't called out is not considered credible. You had worked with the service user for 3-4 weeks and was therefore aware that she was non-communicative and could not indicate her pain or injuries. Despite you seeing the bruising to her face you did not suggest to your colleague you seek medical attention nor did you get an ice pack to help with the swelling. You could not have known, at that point in time, the extent of any injuries caused and should have sought assistance to ensure there were no other more serious injuries which were not visible. It is therefore concerning that you stated you followed your colleagues lead despite having been trained on the appropriate course of action to take

[NAME] v [NAME] ref: UA-2023-001118-V

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3 and the obvious need for the service user to receive further attention. You have therefore demonstrated a lack of insight into the harmfulness of your behaviour. It's accepted that your colleague contacted the office following the incident, however it remains concerning that you did not correct your colleague and provide the true version of events, when the service user's daughter was told of an accident. You had already confirmed you had left the home without providing a clear account of the incident. You therefore failed to report it accurately to others. It is concerning that you have demonstrated an attitude that your behaviour was ok because you were following your colleagues lead, despite knowing this was incorrect. It is accepted that you did not suffer from panic attacks or anxiety but it remains concerning that you admitted to panicking during the incident, despite receiving training on the correct course of action to take, and that this affected your behaviour; you confirm that you were in complete shock and automatically followed the instructions of your colleague. It's acknowledged that you have since undertaken work in a classroom since September 2022, however there is no evidence that you've encountered any similar situations and been able to demonstrate that you can react without panicking or that you can challenge poor practice when you witnesses it. The [NAME] are concerned that your additional representations indicate that you have not accepted responsibility for your actions and have attempted to place all blame onto your colleague. This demonstrates a lack of insight/understanding into the need for you to speak up against poor practices which may place vulnerable adults at risk. You had a responsibility to challenge your colleague, even if she was the 'lead' carer, when you knew what your colleague was doing was wrong, was harmful and was against policy and procedures. The [NAME] are concerned that you may not report harmful behaviour in regulated activity in the future, if you were subservient, or if you had established relationships/loyalties with colleagues who may perpetrate harmful behaviour. As such the [NAME] are satisfied that you carried out neglectful behaviour which caused and had the potential to cause significant harm to a vulnerable adult - you ignored a service user's medical and physical [NAME] needs and failed to challenge your colleague's harmful behaviour. It's acknowledged that you had worked in a [NAME] provision role for 6 years and that there had been no concerns about your behaviour during this time. However, given your most recent conduct the [NAME] are concerned that you don't have the right problem solving skills to deal with stressful situations which often occur within regulated activity. The [NAME] are satisfied that you failed to recognise the seriousness of the incident and the service user's potential injures despite your experience in [NAME]. The [NAME] are therefore satisfied that vulnerable adults placed in your [NAME] are in danger of being subjected to physical and emotional harm through your neglectful behaviour.

[NAME] v [NAME] ref: UA-2023-001118-V

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4 It's also concerning that you have failed to recognise the harmfulness of your behaviour and have focused only on the impact it has had on yourself and your future aspirations. As such, the concerns the [NAME] had, have not been sufficiently mitigated and the [NAME] aren't assured that you would act differently in the future. The likelihood of you repeating your behaviour is therefore considered high, given you have already acted contrary to your training. The potential level of harm, if you repeated your behaviour, is significant and the [NAME] is satisfied your behaviour indicates the need to impose a preventative mechanism in order to protect vulnerable adults. It's reasonable to consider that you could be presented with similar situations with children, you are therefore also considered to present a significant risk to children.” Grounds of appeal 6. The grounds on which permission to appeal was granted are as follows. Error of fact grounds 7. In respect of the first core finding (the failure to secure the commode/shower chair), [NAME] accepts that on the balance of probabilities the commode/shower chair was not appropriately tilted or secured and that the service user’s [NAME] plan stated that it should be. However, it is argued that the [NAME] erred in failing to make any findings of fact as to the role and responsibility of [NAME]’s co-worker that day (“[NAME]”). It is said by [NAME] that [NAME] was the service user’s regular carer at the time of the incident and that [NAME]’s own evidence was that she sometimes did not secure the service user’s chair. [NAME] argues that factual findings as to [NAME]’s behaviour were plainly material to an assessment of [NAME]’s responsibility and culpability. It is said by [NAME] that the mistake of material fact here was the [NAME] failure to make findings of fact: per paragraph [39] of PF v [NAME] [2020] UKUT 256 (AAC).

8. The second mistake of material fact ground of appeal is about the second core finding in the [NAME] decision, that [NAME] had failed to seek medical assistance for the service user and had moved her without assessing her injuries. [NAME] argues the [NAME] here made a material error of fact in finding that the service user was “non- communicative” when it had previously (and [NAME] says correctly) found the service user to be “non-verbal”. It is argued this was highly relevant because when the service user fell, she made no noise to indicate pain and, initially, showed no signs of injury, and [NAME] therefore reasonably believed her uninjured and acted as she did (in moving the service user) on that basis. It is argued the [NAME] rejected this explanation as “not considered credible” on the erroneous basis that the service user “could not indicate her pain or injuries”. It is further argued that the statement that the service user’s injuries were not assessed is simply incorrect. It is submitted that [NAME] (and [NAME]) both initially believed that the service user was unharmed, they then assisted her to her bed where they performed an injury assessment.

9. In respect of the [NAME] core finding – that [NAME] had failed to accurately record and report the incident – it is argued by [NAME] that the [NAME] made a mistake of fact because she had been placed in an exceptionally difficult situation. Her colleague, [NAME], initially misled the service user’s daughter and another member of staff as to the cause of the service user’s injuries, but contradicting [NAME]’s account would have meant [NAME] undermining the trust developed in [NAME]’s years’ long [NAME] relationship with the service

[NAME] v [NAME] ref: UA-2023-001118-V

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5 user, which [NAME] was reluctant to do before having discussed the incident with her superiors. It is argued that, nonetheless, at no point following the incident, did the [NAME] make any false or inaccurate statements regarding the service user’s fall. [NAME] had stated she would phone the employer, [NAME], to report the incident, and [NAME] did so. It was for this reason that [NAME] did not report the incident herself by phone. However, it is said, [NAME] did provide an accurate report of the incident to [NAME] on leaving the service user’s home. It is further argued that the [NAME] core finding incorrectly apportions [NAME]’s misconduct to [NAME].

10. A further consideration in respect of the [NAME] core finding was raised when permission to appeal was granted. This is that whether [NAME] had failed to record and report the incident might depend on what her then employer’s safeguarding policies and procedures required her to do in circumstances where at least two employees were involved in the incident. Error of law grounds 11. The first error of law ground is that the [NAME] failed to identify and consider the “safeguarding policies and procedures” it is said [NAME] had “failed” to follow on 10 August 2022. It is further argued that the [NAME] made a further error in failing to consider whether it was a realistic and reasonable approach in all the circumstances for patients to never to be touched and an [NAME] called in any situation where there was a fall. [NAME] argues here that so to act would have required her to leave the service user lying face down on the floor (in a position where her breathing would likely be impaired) for an indefinite period despite believing her to be uninjured. This prima, facie, would to be an irrational approach.

12. The second error of law ground (which states it is also an error of fact ground) is that the [NAME] erred by dismissing evidence of [NAME]’s insight and remorse in unqualified terms. [NAME] argues that the [NAME] wrongly focused only on [NAME]’s most recent representations to it and thus ignored other evidence of [NAME]’s insight and remorse. This it is said is demonstrated by the fact that the [NAME] previous barring decision, of 29 March 2023, “acknowledged that [[NAME] had] accepted responsibility for [her] behaviour and [had] apologised for it”. It is argued by [NAME] under this ground in particular, and as a result, that the [NAME] was wrong to find (i) she had not accepted responsibility for her actions and had placed all the blame onto her colleague; (ii) that she had demonstrated an attitude that her behaviour was ok; and (iii) that she had focused only on the impact the incident had had on herself and her future aspirations.

13. The [NAME] error law ground for which [NAME] has permission to appeal argues that the [NAME] erred in law by failing to consider relevant evidence and made an unreasonable assessment of the risk of future harm posed by [NAME]. The [NAME] decision to bar [NAME] it is argued was based on a single unfortunate accident which lasted less than an hour and where [NAME] was not the service user’s regular carer, she generally cared for people with less advanced needs, and had not experienced a scenario such as the incident in issue before. It is argued in addition, inter alia, under this ground of appeal that (i) the [NAME] failed to consider the character references provided by [NAME], and (ii) that barring her, as an otherwise excellent carer, for a single incident for which she immediately took responsibility and into which she demonstrated insight, was wholly disproportionate.

[NAME] v [NAME] ref: UA-2023-001118-V

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6 14. A separate ground of appeal is advanced by [NAME] in respect of her inclusion on the children’s [NAME] list. Here it is argued that the [NAME] failed to explain how “similar situations” could arise in respect of children, and it was therefore irrational and/or disproportionate for the [NAME] to have included [NAME] on the children’s [NAME] list.

15. An overarching error of law ground of appeal is that the [NAME] did not provide adequate reasons for its decision. Relevant law 16. Section 2 of the Safeguarding Vulnerable Groups Act 2006 (“the SVGA”) provides that the [NAME] must maintain the adults’ and children’s [NAME] lists. Subsection (2) of section 2 provides that Part 1 of Schedule 3 applies for the purpose of determining whether [NAME] is included in the children’s [NAME] list. Similar provisions apply under the SVGA in respect of the adults’ [NAME] list, but given the final ground of appeal, and the nature of the other grounds of appeal, we consider it is only necessary for us out set out the relevant parts of the SVGA concerning inclusion on the children’s [NAME] list.

17. Paragraphs 3 and 4 of Schedule 3 to the SVGA deal with what constitutes “relevant conduct” in respect of children. Those paragraphs, insofar as relevant on this appeal, provide as follows: “3(1)This paragraph applies to a person if— (a) it appears to [NAME] that the person —

(i) has (at any time) engaged in relevant conduct, and (ii) is or has been, or might in future be, engaged in regulated activity relating to children, and (b) [NAME] proposes to include him in the children's [NAME] list. (2) [NAME] must give the person the opportunity to make representations as to why he should not be included in the children's [NAME] list. (3) [NAME] must include the person in the children's [NAME] list if— (a) it is satisfied that the person has engaged in relevant conduct, ([NAME]) it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children, and (b) it is satisfied that it is appropriate to include the person in the list.

4(1) For the purposes of paragraph 3 relevant conduct is— (a) conduct which endangers [NAME] or is likely to endanger [NAME]; (b) conduct which, if repeated against or in relation to [NAME], would endanger that child or would be likely to endanger him;… (2)A person's conduct endangers [NAME] if he— (a) harms [NAME], (b) causes [NAME] to be harmed, (c) puts [NAME] at risk of harm, (d) attempts to harm [NAME], or (e) incites another to harm [NAME].”

18. The Upper Tribunal’s appellate jurisdiction is provided for under section 4 of the SVGA, which provides (insofar as relevant) as follows: “Appeals 4.-(1) [NAME] who is included in a [NAME] list may appeal to the Upper Tribunal against—

[NAME] v [NAME] ref: UA-2023-001118-V

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7 (b) a decision…..to include him in the list;… (2) An appeal under subsection (1) may be made only on the grounds that [NAME] 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 [NAME] to be included in a [NAME] list is not a question of law or fact. (4) An appeal under subsection (1) may be made only with the permission of the Upper Tribunal. (5) Unless the Upper Tribunal finds that [NAME] has made a mistake of law or fact, it must confirm the decision of [NAME] . (6) If the Upper Tribunal finds that [NAME]] has made such a mistake it must— (a) direct [NAME] to remove the person from the list, or (b) remit the matter to [NAME] for a new decision. (7) If the Upper Tribunal remits a matter to [NAME] under subsection (6)(b)— (a) the Upper Tribunal 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.” 19. The following decisions set out the bounds of the jurisdiction of the Upper Tribunal in exercising its appellate jurisdiction under section 4 of the SVGA cases. First, the appropriateness of a barring decision is not a matter for the Upper Tribunal on appeal. Second, for an appeal to succeed it needs to be shown, on the balance of probabilities, that the [NAME] made either a material error of law or a material error of fact in its decision: R v (RCN and others) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin) (at paragraph 104) and PF v [NAME] [2020] UKUT 256 (AAC); [2021] AACR 3. [NAME], if it is argued that a decision to include a person on a [NAME] list is disproportionate to the relevant conduct or risk of harm relied on by the [NAME], the Upper Tribunal must afford appropriate weight to the judgement of the [NAME] as the body enabled by statute to decide appropriateness: SA v [NAME] & RCN [2012] EWCA Civ 977; [2013] AACR 24. Fourth, what needs to be considered is not the terms of the decision letter alone but the whole basis for the decision as evidenced on the papers the [NAME] considered in coming to its decision: VT –v- ISA [2011] UKUT 427 (AAC) (at paragraph 36).

20. The primacy of the [NAME] role as decision maker under the SVGA has been underscored and reaffirmed by the Court of Appeal in [NAME] v AB [2021] EWCA Civ 1575: see in particular paragraph [43] of that decision. [ADDRESS] of Appeal in AB have also settled that there is a very limited basis on which the Upper Tribunal can direct that a person be removed from a [NAME] under section 4(6) of the Act. The duty to direct removal only arises in circumstances where “that is the only decision the [NAME] could lawfully reach in the light of the law and facts as found by the Upper Tribunal” ([NAME] at para. [73]).

21. The decision in AB also contains a useful discussion of what constitutes a ‘finding of fact’, about which it may be argued that the [NAME] was mistaken, contrasting

[NAME] v [NAME] ref: UA-2023-001118-V

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8 such a finding with value judgements and the evaluations of the relevance or weight to be given to facts when assessing appropriateness: see para. [55] of AB.

22. Finally, following the Court of Appeal’s decision in Disclosure and Barring Service v [NAME] [2023] EWCA Civ 982, and paragraph [95] of that decision in particular, as that decision is explained in Disclosure and Barring Service v [NAME] [2024] EWCA Civ 95 (at paragraphs [33] and [54]), the Upper Tribunal should be slow to consider the [NAME] has taken a mistaken view of the facts when no new evidence has been put before the Upper Tribunal which bears on the findings of fact made by the [NAME] in its decision. Paragraph [54] of [NAME], however, makes plain that the ratio of [NAME] is confined to “cases where the Upper Tribunal either hears no oral evidence at all, or no evidence which is relevant to the question whether the [NAME] committed the relevant act – in other words, where the evidence before the Upper Tribunal is the same as the evidence before the [NAME]”. [ADDRESS] of Appeal in [NAME] agreed with the [NAME] (at paragraph [28]) that: “The Upper Tribunal is entitled to make a finding that an appellant's denial of wrongdoing is credible, such that it is a mistake of fact to find that she did the impugned act. In so doing, the Upper Tribunal is entitled to hear oral evidence from an appellant and to assess it against the documentary evidence on which the [NAME] based its decision. That is different from merely reviewing the evidence that was before the [NAME] and coming to different conclusions (which is not open to the Upper Tribunal).” Discussion and conclusion [NAME]’s evidence 23. Before turning to address the grounds of appeal, we set out first the key aspects of the evidence [NAME] gave at the oral hearing before us. 24. [NAME] told us that she had worked as a teacher in Bangladesh, and as a teaching assistant in the UK from December 2021 until she was [NAME] from working with vulnerable adults and children in March 2023. She had also worked in the [NAME] sector in the UK, with older people, for over 6 years. [NAME] told us that she loves working with young people and older people, but has not worked in the [NAME] sector since the relevant incident (on 10 August 2022) that led to her being [NAME] by the [NAME].

25. In respect of that 10 August 2022 incident and the service user involved in it, [NAME], [NAME] told us that she had started working with [NAME] on 10 July 2022, but [NAME] then took a week of holiday. [NAME] said the [NAME] agency ought to have explained to her what [NAME] needs [NAME] had and the agency did not tell [NAME] to read [NAME]’s [NAME] plan. [NAME] told us she just did what her colleague, [NAME], told her to do in terms of [NAME]’s [NAME], though [NAME] added that [NAME]’s communication with her was not good. [NAME] later clarified her evidence by saying she had not seen [NAME]’s [NAME] plan and assumed [NAME] would tell her about [NAME]’s [NAME] needs. The [NAME] given to [NAME] was given to her in [NAME]’s home. 26. [NAME]’s evidence to us was that [NAME] did not have any means to speak but she could ‘scream’ if given too much food, and [NAME] therefore could communicate when in pain or discomfort.

27. Turning to the incident on 10 August 2022, [NAME] was working with [NAME] in providing [NAME] to [NAME]. [NAME] had finished feeding [NAME] and [NAME] was then showered and dressed. They then put a sling on [NAME] whilst she was sitting in the shower chair/commode. The sling was to aid transferring [NAME] from the chair to the bed. [NAME] would usually stand

[NAME] v [NAME] ref: UA-2023-001118-V

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9 next to [NAME] but on this occasion had moved from her side to make up [NAME]’s bed. [NAME] was standing a couple of feet away with her back to [NAME], putting some cream away. As [NAME] turned around, she saw [NAME] fall from the chair face down onto the floor. [NAME] later told us that she did not know the chair had a tilted position, but it was (in her view) stable. It is common ground that the chair had not been secured in its tilted back position. [NAME] initially told us that as neither she nor [NAME] heard [NAME] scream, they immediately lifted her back from the floor back onto the chair, and then checked [NAME] over when she was in the chair. [NAME] was then transferred to bed. [NAME] then said that it was when [NAME] was in the bed that she and [NAME] “needed to see if she was okay or not on the head or the body”. This evidence was seemingly at variance with [NAME]’s initial evidence that checks were made on [NAME] when she was in the chair. In either event, [NAME]’s evidence was that neither she nor [NAME] had checked [NAME] before moving her from the floor back to the chair. 28. [NAME] had some swelling on her face 15 minutes after the fall. On seeing this, it was [NAME]’s evidence that she told [NAME] that they had to tell [NAME] the truth of what had happened. However, [NAME] told [NAME] they were going to to tell the daughter her mother ([NAME]) had hit her head in the hoist, which was part of the mechanism used to move [NAME] in the sling. [NAME] told us she had said to [NAME] “How can you say this?”, but [NAME] then froze. As [NAME] in [NAME]’s view had a good relationship with [NAME], [NAME] wanted to see if [NAME] would lie to the daughter. [NAME] then suggested she and [NAME] just left [NAME]’s home, but [NAME]’s evidence to us was that she told [NAME] they could not do that and “no matter what we must tell the daughter the truth”. The daughter was in another room downstairs in [NAME]’s house, and came into the room. The daughter was crying. When she asked what had happened, [NAME] (wrongly) told the daughter her mother had hit her head on the hoist. [NAME] told us that she was nervous and a new carer for [NAME], so all she said in answer to the daughter’s query was that she ([NAME]) “didn’t do this intentionally”. 29. [NAME] had fallen, [NAME] told us, at about 9.30am on 10 Augut 2022. At around 10.15am that day, [NAME] said that a [NAME] carer came to the property. That carer kept asking what had happened. [NAME] did not answer her as she just froze, but [NAME] told the [NAME] carer that [NAME] had fallen into the hoist. It was the [NAME] carer who ran to the kitchen to get an ice pack to put on [NAME]’s bruised face. [NAME] had not done this, she told us, because she thought [NAME] would do this and she ([NAME]) did not have any information about the kitchen. Nor did [NAME] or [NAME] ring ‘[NAME]’. It was [NAME] who did this. [NAME]’s reason for not ringing ‘[NAME]’ she told, us was because she thought [NAME] was fine. We interpose at this stage that [NAME] took this view notwithstanding the bruising to [NAME]’s face or the fact that she had fallen flat on her front, face first. 30. [NAME] told us that had a problem with her own phone on the day in question so she could not call her [NAME] to report what had occurred. [NAME]‘s evidence to us was that she had told [NAME] to call the [NAME] and explain everything that had occurred and that she ([NAME]) would go to the office later. She went to the employer’s ([NAME]) office at around 1pm-1.30pm that day (10 August) and explained to the staff member there what had happened. The record of [NAME]’s statement is at page 74 of the Upper Tribunal bundle. It is a short but accurate description of [NAME]’s fall, but wrongly implies or at least suggests by its closing words that when [NAME] and [NAME] saw [NAME]’s face was swelling they called the daughter and told her what had occurred. Nothing in that short statement of [NAME] sets out that her colleague had, at the very least, misled, or at worst, lied to, the daughter about what had occurred.

[NAME] v [NAME] ref: UA-2023-001118-V

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10 31. However, [NAME] did tell her manager what [NAME] had (wrongly) told [NAME] when [NAME] was interviewed by her manager, on her statement, at 1.30pm on 10 August 2022. That interview begins at page 83 of the Upper Tribunal bundle. [NAME] is recorded as saying in that interview is largely consistent with her evidence to us. [NAME] told her manager that [NAME] had fallen from the chair, face first, onto the floor, and that she and [NAME] had moved [NAME] back into the chair before checking on her. [NAME] also disclosed in that interview that [NAME] had told the daughter that [NAME] had got hurt on the hoist, whereas the hoist was nowhere near and [NAME] had fallen and hit her face on the floor.

32. It was in an interview the next day with the same manager that it was put to [NAME] that she and [NAME] had discussed what to say to the daughter and had agreed, effectively, to lie to the daughter about [NAME] having hit her head on the hoist. [NAME] did not agree in that interview that she had agreed to this lie, and her evidence was to the same effect before us. 33. [NAME] further told us that her manger told her she could resign and that, if she did, she did not need to attend the disciplinary hearing. She resigned in consequence. 34. [NAME]’s evidence to us was that she had had no similar issues with those she cared for before 10 August 2022 or had faced any disciplinary proceedings. She has reflected further on the incident and understands further what went wrong. She realises, she told us, that she ought not have picked [NAME] up from the floor and should have reported what had occurred immediately. She knows it was both her and [NAME]’s responsibility to [NAME] for [NAME], but she thought [NAME] would take the lead. [NAME] told us she had learnt from the incident and evidenced this by referring to a neighbour who had fallen and for whom she had called an [NAME] and then waited until the [NAME] arrived. She had become more cautious that nothing should go wrong when working as a teaching assistant. Her dream job is to work with children but the barring decision had limited her career in this respect. [NAME] said she deeply apologised for what had happened to [NAME]. [NAME] was like, and about the same age as, [NAME]’s grandmother, and [NAME] said she wanted to save [NAME] otherwise the [NAME] was going to come. She considered she had saved [NAME] (by moving her from the floor) because [NAME]’s face was down, she might not have been able to breathe and her condition could have worsened if she had been left lying face down on the floor. However, [NAME] later accepted in cross-examination that they should not have moved [NAME] after she had fallen to the floor and that they should have called the [NAME] (and [NAME]) immediately. On the face of it, and consistently with what [NAME] had told her employer on 10 and 11 August 2022, [NAME] accepted that both the need to call the [NAME] immediately and not to move [NAME] arose from her (manual handling) training. However, she had been shocked by the fall and as a result those steps were not taken.

35. Further under cross-examination, [NAME] accepted she had worked for 6 years as a carer before 10 August 2022 and was experienced in caring for older people. Moreover, this was the only time she had not read a person’s [NAME] plan. [NAME] did not have [NAME]’s [NAME] plan and had been told just to go to [NAME]’s house and [NAME] would tell her about [NAME]’s [NAME] needs. She had asked [NAME] about what exactly they had to do for [NAME], but [NAME] had not given [NAME] all the information and was quite bossy. In questions from the tribunal, [NAME] told us that [NAME] plans for individuals were kept in their homes and on [NAME]’s phone and “it was always suggested if going to a new home to read the [NAME] plan”. However, in this case [NAME] had assumed [NAME] would tell her what [NAME]’s [NAME] needs were. [NAME]’s evidence was that [NAME] may have had a [NAME] plan in her home, but

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11 [NAME] had not checked. Nor had she had “the opportunity” to say to [NAME] that she ([NAME]) needed to see the [NAME] plan, although this evidence was in our view somewhat undermined by [NAME]’s later evidence that she had asked [NAME] what [NAME]’s [NAME] plan required, evidence which was itself somewhat undermined by earlier evidence of [NAME] that she should have asked about the [NAME] plan.

36. We comment at this stage that if [NAME] was (rightly) concerned to know the details of [NAME]’s [NAME] needs as set out in her [NAME] plan, and if (as [NAME] told us) [NAME] was not giving her all the information and was not good at communicating with [NAME], it was for [NAME] to find out that information for herself by locating the [NAME] plan in [NAME]’s house and reading it.

37. As for the incident on 10 August 2022 itself, [NAME] clarified that it was [NAME]’s face that hit the ground first, the fall made quite a loud bang and [NAME] at one stage had thought [NAME] had died. When Mr [NAME] (for the [NAME]) put to [NAME] that she had accepted in the interview with her manager on 10 August 2002 that she knew (from manual handling training) that she should never support someone up from the floor following a fall, particularly where they have hit their head, and she should have called for medical assistance, [NAME] said she and [NAME] had panicked. [NAME] was back in the chair, [NAME] had checked her for injuries, and once [NAME] was in the bed both [NAME] and [NAME] had checked [NAME] for injuries. In questioning from the tribunal, [NAME] told us that she had had first aid training two years before the incident and was herself a first aid trainer. [NAME] accepted that when she saw the swelling on [NAME]’s face she needed to tell the daughter so that the next steps to be taken could be identified. However, it had not come into [NAME]’s mind that [NAME] might have suffered a head injury as a result of the fall.

38. In relation to the chair and its tilting mechanism, [NAME] said she did not know the chair could tilt and she had not asked [NAME] about this. Moreover, [NAME] accepted that she had not told her colleague that she ([NAME]) had not read [NAME]’s [NAME] plan. [NAME] further accepted in cross-examination that she a responsibility to challenge [NAME].

39. In relation to whether [NAME] and [NAME] had agreed to lie to [NAME] about what had happened, [NAME]’s evidence was in some respects equivocal. In cross-examination [NAME] said she had told [NAME] that they needed to tell the daughter, but said they then agreed not to tell the daughter. On [NAME]’s evidence, [NAME] then told [NAME] they were going to lie and [NAME] thought [NAME], as a [NAME] worker of more experience, knew best how to handle the situation, though she recognised what [NAME] was doing was wrong. Furthermore, [NAME] said she could not bear to tell [NAME] the truth about what had in fact occurred because the daughter was so upset.

40. It seems on the evidence before us to us, on the balance of probabilities, that [NAME] did not positively agree to lie to [NAME] about what had happened, but neither did she take any steps to correct to the daughter the lie that [NAME] had told [NAME]. This is supported by, and is broadly consistent with, the evidence [NAME] subsequently gave to her employer in her two interviews with her employer on 10 and 11 August 2022.

41. One other area of the evidence we need to address is the “incident reporting procedure”. This is referred to within the [NAME] document, and appears on page 209 of the Upper Tribunal bundle. What is there set out is: “It appears that [[NAME]] subsequently failed to follow policies or procedure on witnessing [[NAME]’s] fall in that she failed to seek medical assistance and

[NAME] v [NAME] ref: UA-2023-001118-V

NCN No. [2025] UKUT 036 (AAC)

12 moved [[NAME]] from the floor to the chair without conducting an assessment of her injuries, she failed to report the fall to her daughter and [the [NAME] who arrived at on 10 August 2022 at 10.15am] and she failed to record the fall via the incident reporting procedure.” (the underlining is ours and has been added for emphasis) In the [NAME] decision, this ‘failure’ to report to [NAME] and the [NAME] was described as follows: “It is accepted that [[NAME]] contacted the office following the incident, however it remains concerning that you did not correct [[NAME]] and provide the true version of events, when [[NAME]’s] daughter was told of the accident. You had already confirmed you had left the home without providing a clear account of the incident. You therefore failed to report it accurately to others.” 42. The tribunal raised this issue with the parties. [NAME]’s evidence was that she recalled this procedure but it was for [NAME], as the more senior carer (in the sense of [NAME] having worked with [NAME] for longer), to write this up. [NAME] understood [NAME] had made this record and report. [NAME] told us that one person making such a report on behalf of two carers was fine. [NAME] considered her attending the office and being interviewed at 1.30pm on 10 August 2022 was her ‘reporting’ the incident. She considered the ‘incident reporting procedure’ had been followed by [NAME] contacting the office and reporting in the paperwork.

43. Having set out, and to some extent commented on, [NAME]’s evidence, we turn to the grounds of appeal. Grounds of appeal 44. We will start with the grounds of appeal on which we consider [NAME] should succeed. We will then explain why the other grounds of appeal are not, in our judgement, made out made. Grounds on which the appeal succeeds 45. The first ground on which the appeal succeeds concerns the [NAME] core finding of the [NAME]. That finding, when read compendiously, is that [NAME] had “failed to follow safeguarding procedures on 10 August 2022 in that she had failed to accurately record and report the incident”. This ground covers the mistake of fact grounds described in paragraphs 9-10 above, and at least part of the error of law ground in paragraph 11 above.

46. The critical starting point is that the evidence before the [NAME] and before us does not set out either the “safeguarding procedures” of [NAME] which [NAME] was expected to follow or the “incident reporting procedure” of the same company that [NAME] was required to meet.

47. The lack of evidence of the written policies and procedures of [NAME] and the error of law ground (that the [NAME] had failed to identify and consider the safeguarding policies and procedures [NAME] had failed to meet) do not on their own give rise to any material error of law. This is because the [NAME] failure to consider those written policies does not alone and of itself necessarily result in a consequence in the decision on [NAME]’s case, as that (mere) failure does not necessarily establish conduct by [NAME] which, for example, endangered, or was likely to endanger, a vulnerable adult (or child).

[NAME] v [NAME] ref: UA-2023-001118-V

NCN No. [2025] UKUT 036 (AAC)

13 48. We are satisfied, however, that in relation to the other two core findings of fact made by the [NAME] that the content of [NAME] safeguarding procedures can be inferred from the evidence, even though [NAME] written procedures were not before us. That inference arises, first, from [NAME] not disputing that [NAME]’s [NAME] plan (as part of [NAME] safeguarding procedures) required the commode/shower chair to be secured and tilted when [NAME] was sitting in it. And its arises, secondly, from [NAME]’s clear acceptance in her interview of 10 August 2022 with her manager at [NAME], a matter which was not disputed before us, that she was aware from her moving and handling training (training which we consider part of [NAME] “safeguarding procedures”) that she should never support someone up from a fall to the floor, particularly where the person has banged their head, and instead should have called for medical assistance.

49. However, we are not satisfied that any similar inferences as to the content of [NAME] safeguarding procedures or its incident reporting procedure can be made in relation to the [NAME] core finding made by the [NAME]. We have seen no detail as to the terms of [NAME] “incident reporting procedure”, and nor did the [NAME] have that information when it made the barring decision. We therefore do not consider it was open to the [NAME], insofar as it did so (see the passages from the Barring Decision Summary and the decision letter cited in paragraph 41 above) to find that [NAME] had failed to follow [NAME] incident reporting procedure, or any other “safeguarding procedures”, in not reporting the fall to [NAME] or to the [NAME] who attended at [NAME]’s home after the incident on 10 August 2022. There was simply no evidence before us showing that [NAME] had been placed under an obligation to report the fall to [NAME] or the [NAME], and as such we consider the [NAME] made a mistake of fact in finding that [NAME] had failed to report the fall to either [NAME] or the [NAME].

50. We would accept, indeed infer, from the evidence before us that [NAME] had in place on 10 August 2022, in general terms, an incident reporting procedure. Indeed, [NAME] herself accepted that [NAME] had such a procedure, and having such a procedure would plainly be an important part of a [NAME] provider’s safeguarding procedure. However, without the actual terms of that reporting procedure this acceptance can only be at the level of generality, and looking at what [NAME] told her manager at 1.30pm on 10 August 2022, we consider the [NAME] made a mistake as to a material fact when it held that [NAME] had “failed to accurately record and report the incident”. [NAME] told her manager on 10 August 2022 was in our judgement an accurate report of the incident. She told the manager on 10 August 2022 that [NAME] had fallen forward out of the chair and hit her head, that [NAME] and [NAME] had moved [NAME] from the floor to the chair and then the bed, and that [NAME] had (wrongly) told the daughter that [NAME] had hit her head on the hoist. That, in our judgement, was an accurate report of the incident.

51. Further, in the absence of the terms of the incident reporting procedure, or the terms of [NAME] safeguarding procedure’s more generally, we do not consider the [NAME] had a proper factual basis for its finding (insofar as it is a separate finding of fact) that [NAME] had failed to accurately record the incident. The decision letter (see again the passage cited from it in paragraph 41 above) only relies on [NAME]’s failure to report the incident, which we have dealt with above and deal with further below. The Barring Decision Summary passage cited at paragraph 41 above does rely on [NAME] having “failed to record the fall via the incident reporting procedure”. However, we consider this finding of fact was not properly open to the [NAME] on the evidence, and it

[NAME] v [NAME] ref: UA-2023-001118-V

NCN No. [2025] UKUT 036 (AAC)

14 was therefore mistaken. We have so concluded because in the absence of evidence as to the exact terms of the incident reporting procedure, we consider there was (and is) no secure basis for finding that [NAME], instead of or in addition to [NAME], was obliged by the incident reporting procedure to record the fall. [NAME] told us, which we have no reason to disbelieve on the evidence before us, that it was for [NAME] as the more experienced [NAME] worker to report the incident, including the fall, and [NAME] had done this when [NAME] went to [NAME] office on 10 August 2022. Insofar as [NAME] when so acting was acting on behalf of [NAME], there was no evidence before us, or the [NAME] when it made its decision, that [NAME] did not record the fall via the incident reporting procedure.

52. Part of the [NAME] argument before us was about whether [NAME] had agreed with [NAME] to lie about [NAME] having hit her head on the hoist and thus had ‘gone along with the lie’. Mr [NAME] clarified later that the [NAME] was not, and had not, relied on [NAME] herself having lied about [NAME] having hit her head on the hoist. That clarification was welcome. There is nothing in the evidence before us to support any finding that [NAME] had said [NAME] had hit her head on the hoist. Moreover it should be noted that [NAME] in its letter of 17 August 2022 acknowledging [NAME]’s resignation stated “[w]e appreciate your honesty in this matter”. However, we should add that we did not see the relevance of whether [NAME] and [NAME] had (or had not) agreed to lie to the daughter about the fall. We say this because it was no part of the [NAME] finding that [NAME] had failed to accurately report and record the incident that she had agreed with [NAME] to lie about the fall. Nor was any part of that finding based on what [NAME] had reported (or may not have fully reported) to her manager on 10 August 2022. The [NAME] finding about [NAME]’s failure to report was limited to [NAME] not reporting the fall to the daughter (and the [NAME]), and thereby not correcting [NAME]’s lie to the daughter. 53. [NAME] is also entitled to succeed on this appeal because we accept her argument that the [NAME] erred in law when making its decision by failing to take into account all the relevant evidence about whether [NAME] had shown insight and remorse for what had occurred on 10 August 2022.

54. We set out the core relevant parts of the [NAME] decision on which relied [NAME] relied under this ground of appeal, which read: “The [NAME] are concerned that your additional representations indicate that you have not accepted responsibility for your actions and have attempted to place all blame onto [[NAME]]. This demonstrates a lack of insight/understanding into the need for you to speak up against poor practices which may place vulnerable adults at risk.” 55. [NAME] also sought to rely on the passage in the decision letter which reads: “It is concerning that you have demonstrated an attitude that your behaviour was ok because you were following your colleagues lead, despite knowing this was incorrect.” And: “It's also concerning that you have failed to recognise the harmfulness of your behaviour and have focused only on the impact it has had on yourself and your future aspirations.”

[NAME] v [NAME] ref: UA-2023-001118-V

NCN No. [2025] UKUT 036 (AAC)

15 56. [NAME] points out that in its earlier decision of 29 March 2023 (a decision which the [NAME] then reviewed and replaced with the decision under appeal) the [NAME] acknowledged [NAME] had:

“accepted responsibility for your behaviour and apologised for it.” 57. The additional representations were made by [NAME]’s then solicitors and are dated 5 May 2023. It is apparent from their content that they were intended to be additional representations and not replacement representations. The representations request at their outset that the [NAME] take them into account “in conjunction with our previous representation[s]”. The additional representations were not therefore intended to amount to the sum total of [NAME]’s representations.

58. We assume, which a fair reading of the 5 May 2023 letter might suggest is the case, that the [NAME] above characterisation of the content of the additional representations is correct. We also accept that the [NAME] correctly identified those representations as being additional representations. And we further accept that the [NAME] was entitled to be concerned that those additional representations on their face may have sought to place all the blame onto [NAME] and did not show [NAME] accepting responsibility for what had occurred.

59. All of that said, however, what the [NAME] decision making fails to show is any attempt to weigh those representations against that which [NAME] had previously represented or said about the incident, which had led the [NAME] to find or conclude as it had in its 29 March 2023 decision. By way of example, the previous representations from the same solicitors of 25 April 2023 (which the [NAME] were also asked to take into account in the 5 May 2023 representations), state, inter alia, that the unfortunate incident had taught [NAME] to learn from the experience and to make sure protocols were followed without question. That statement did not appear in the 5 May 2023 representations. Moreover, in our judgement the 25 April 2023 representations cannot fairly be characterised as placing all the blame on [NAME].

60. Furthermore, in a letter of 2 March 2023 [NAME] told the [NAME] how she had identified her mistakes which should not have happened, that she now had insight into what she had done which was wrong, and she accepted full responsibility for her actions.

61. Moreover, on the same day the incident had occurred, [NAME] told her manager, in answer to a question about whether [NAME] was “comfortable with the decisions that [she] made and the steps [she] took after the fall”, [NAME] answered: “No, I am very angry and upset and what is done is done, I can only be totally honest with you, we should have called an [NAME] at the time so she could get the proper treatment straight way.” And then in answer to a further question as to whether [NAME] would have told anyone about the fall if [NAME]’s face had not swollen, [NAME] answered: “Definitely, I would have called the office straight after, she is an elderly frail lady, she might have bruised, we had to keep an eye on her I would not have kept this secret. That was not my intention.” 62. At the further interview the next day, in the context of [NAME]’s manager exploring with her why she had not corrected [NAME]’s lie to [NAME], [NAME] said: “I understand, we have learnt totally different in training, I know it was wrong, I have no words to say other than sorry, I am not thinking about

[NAME] v [NAME] ref: UA-2023-001118-V

NCN No. [2025] UKUT 036 (AAC)

16 myself at the moment, I only hope [NAME] is going to be okay. I didn’t sleep last night, thinking, why did we do that….. ….I should have done the right thing, we should have called the [NAME] and daughter immediately, I shouldn’t have list[en]ed to [NAME], I let myself down” 63. The statements made by [NAME] immediately in the aftermath of [NAME]’s fall on 10 August 2022 are plainly relevant to whether she had accepted responsibility for her actions (as is her letter of 2 March 2023) and whether she was showing remorse. The statements [NAME] made on 10 and 11 August 2022 are also relevant to whether [NAME] overall thought her “behaviour was ok” and whether she had failed to recognise the harmfulness of her behaviour and had focused only on the impact on herself and her future aspirations. In our judgment, the above highlighted statements [NAME] made in her interviews on 10 and 11 August 2022 do not support the findings or the conclusions of the [NAME] we have set out in paragraphs 54 and 55 above. Indeed, given the highlighted statements from [NAME]’s interviews, we can see why the [NAME] seemingly accepted in its earlier 29 March 2023 decision that [NAME] had accepted responsibility for her behaviour and apologised for it.

64. For error of law purposes, however, the point is that the [NAME] had to weigh all of the evidence going to whether [NAME] had accepted responsibility for her actions and had shown remorse, and it failed to do that in its decision. Putting this perhaps another way, the [NAME] failed to consider the totality of all the relevant evidence concerning whether [NAME] accepted responsibility for her actions on 10 August 2022 and thereby erred in law.

65. We reject the [NAME] submission that its consideration of [NAME]’s representations and evidence as to her responsibility and remorse was sufficient. It may be, as the [NAME] argued, that its earlier decision of 29 March 2023 had a more nuanced basis: because, having made the acknowledgement set out in paragraph 56 above, it continued “however your insight appears limited to the impact your behaviour has had on yourself and your career rather than the harmfulness of it”. Those concluding words may themselves have failed to take account of [NAME]’s evidence in her 10 and 11 August 2022 interviews. However, the [NAME] acknowledgement quoted in paragraph 56 above is no more than demonstrative of the evidence from [NAME] which supports her having accepted responsibility for her behaviour, and apologised for it, and it is that evidence of [NAME] which the decision has not sufficiently taken into account. Nor are we persuaded by the [NAME] arguments about the quality or depth of the responsibility shown by [NAME]. That judgement had to be made having considered all the relevant evidence, which was not done in [NAME]’s case.

66. Nor are we persuaded by the [NAME] argument, if we understood it correctly, that its decision was about the risk of future harm being caused by [NAME] and, as part of that, the [NAME] was not satisfied that [NAME] would in future challenge a colleague’s wrong behaviour. We recognise that the assessment of risk is for the [NAME]. However, in making that assessment it had to take into account all relevant evidence. [NAME] viewed her role in what had occurred with [NAME] on 10 August 2022 (including whether [NAME] considered she had acted correctly in following and not correcting [NAME]) in our judgment was plainly relevant to that assessment, and that required the [NAME] to consider all the relevant evidence going to those issues.

[NAME] v [NAME] ref: UA-2023-001118-V

NCN No. [2025] UKUT 036 (AAC)

17 67. This point can be put another way. It is clear from the [NAME] decision letter that it took into account the additional representations as relevant evidence about [NAME]’s insight and understanding about the need for her to “speak up against poor practice” and the need for her to report wrongful behaviour carried out by a worker who was more senior then her. The [NAME] therefore plainly considered that evidence about [NAME]’s acceptance of her responsibility for her actions was relevant evidence (which it was). However, having taken that step in its decision making, the [NAME] was required to consider (and show through its reasons it had considered) all such relevant evidence, and that it failed to do.

68. We consider this is sufficient to dispose of this ground of appeal. [NAME] argued in addition, or in the alternative, that the [NAME] made a mistaken factual finding that she had “not shown insight and remorse” for her actions on 10 August 2022. An initial concern we have here, which was not addressed in argument before us, is can it be said to be a finding of fact whether someone has “shown insight and remorse”. It is at least arguable that this ‘finding’ is instead an evaluative conclusion based on all relevant evidence. The latter is off limits for the Upper Tribunal: see [NAME] at paragraph [55]. Although the discussion in paragraph [55] of [NAME] is about the Upper Tribunal exercising the fact finding function located in section 4(7)(a) of the SVGA, it is also relevant in our judgement to deciding whether the [NAME] made a finding of fact about which it may have been mistaken. The second concern we have is, ignoring the first concern, whether the [NAME] actually made a finding of fact in its decision that [NAME] had not “shown insight and remorse”. None of the passages in the [NAME] decision on which [NAME] relies (see paragraphs 54 and 55 above) make such a finding. The passage from the decision letter in paragraph 54 above does refer to [NAME] having a lack of insight, but (i) that is in a more limited context of a need for [NAME] to speak up, rather than her insight more generally, and (b) in any event, is tied to the [NAME] (legally wrong) view that the sole relevant evidence was that found in the additional representations. It is therefore not a finding of fact (if it can be a finding of fact) that [NAME] had not more generally “shown insight and remorse”. Given these concerns, we do not consider we can or should find on the evidence before us (including [NAME]’s oral testimony which we have set out above) that the [NAME] made a mistaken finding of fact that [NAME] had not shown ‘insight and remorse’.

69. We should add, however, that the evidence [NAME] gave to us, which we have summarised above, will form part of the evidence the [NAME] will need to take into account when it makes its new decision on [NAME]’s case under section 4(6)(a) of the SVGA.

70. The [NAME], and final, ground of appeal on which the appeal succeeds is the [NAME] failure to take into account the character references provided by [NAME] to the [NAME]. This was part, but a distinct part, of her proportionality ground of appeal. It was not addressed by the [NAME] in its written submissions. [NAME]’s argument before us was that the [NAME] consideration of the character reference was sufficient. We do not agree. There is no consideration of the character references in the decision letter of 12 May 2023. We accept that the decision letter has to be read alongside the record of [NAME] decision making process set out in the Barring Decision Summary document (the BDS”). Unlike the decision letter, the character references are noted and summarised in the BDS as it appears at pages 223 and 224 of the Upper Tribunal bundle. However, other than the BDS listing this evidence, at no stage does the BDS grapple clearly (if at all) with this evidence.

[NAME] v [NAME] ref: UA-2023-001118-V

NCN No. [2025] UKUT 036 (AAC)

18 71. The character evidence may to some extent be said to be quite general in nature. But where, by way of example, a [NAME] coordinator from [NAME] says, on 13 July 2022, that [NAME] (on the face of it in her role as a [NAME] worker with [NAME]) was “amazing” and it had been a pleasure having [NAME] in the [NAME] coordinator’s team, that evidence needed to be addressed as it was evidence of [NAME]’s competence as a [NAME] worker as testified to by a more senior member of staff. That evidence obviously came before the incident on 10 August 2022 and so could not have taken that incident into account. However, we do not consider it was sufficient for the [NAME] to address that (and the other character references, which refer to [NAME]’s honesty, trustworthiness and reliability), if that is what the [NAME] was doing, by saying in the decision letter (and the BDS): “It's acknowledged that you had worked in a [NAME] provision role for 6 years and that there had been no concerns about your behaviour during this time. However, given your most recent conduct the [NAME] are concerned that you don't have the right problem solving skills to deal with stressful situations which often occur within regulated activity. The [NAME] are satisfied that you failed to recognise the seriousness of the incident and the service user's potential injures despite your experience in [NAME]. The [NAME] are therefore satisfied that vulnerable adults placed in your [NAME] are in danger of being subjected to physical and emotional harm through your neglectful behaviour.” 72. We do not consider this is a sufficient explanation encompassing the character references because: (i) it is not clear it is addressing those references, and (ii) it fails to show that the [NAME] had weighed in its consideration that if, for example, [NAME] had been an ‘amazing’ member of a [NAME] team and would seemingly (on the [NAME] assessment) often have had to deal with stressful situations, [NAME] may have developed the right problem solving skills over those 6 years and her reaction to [NAME]’s fall may therefore have been a one-off mistake which was not likely to be repeated.

73. We recognise that in [NAME]’s oral evidence to us she told us that she had had no similar issues with those she had cared for in her 6 years of caring before [NAME]’s fall on 10 August 2022. That evidence may well be relevant to whether [NAME] had in fact developed the necessary problem solving skills over those 6 years to address that which confronted her when [NAME] fell on 10 August 2022, and therefore whether her reactions to the fall were an out of character one-off or evidenced a propensity by [NAME] not to be able to deal properly with [NAME] situations such as the one that she was confronted with on 10 August 2022. However, this is not evidence on which the [NAME] relied in its decision nor is it part of the [NAME] reasons for that decision.

74. The above grounds are the grounds of appeal on which [NAME] succeeds. Section 4(6) of the SVGA requires us to either remove [NAME] from the [NAME] lists or remit the matter to the [NAME] for a new decision. [NAME] from the both [NAME] lists is only available if, per AB, we consider that was the only decision available to the [NAME] on the law and the correct facts. Given we are not allowing the appeal on any other grounds, and therefore the two other core findings remain intact that [NAME] failed to secure [NAME]’s commode/shower chair (thus allowing [NAME] to fall) and ‘wrongly’ moved [NAME] from the floor after she had fallen, we do not consider removal from the lists is or was the only available decision open to the [NAME].

[NAME] v [NAME] ref: UA-2023-001118-V

NCN No. [2025] UKUT 036 (AAC)

19 Grounds of appeal which are not successful 75. We are not persuaded that the [NAME] made a mistake about a material fact in finding that [NAME] had failed to follow safeguarding procedures on 10 August 2022 by failing to secure a commode/shower chair prior to assisting [NAME] to use it. [NAME] (rightly) concedes that the said chair had not been appropriately secured on that day and that [NAME]’s [NAME] plan stated that it should have been secured. The latter obligation being imposed by [NAME]’s [NAME] plan was accepted by [NAME] in her interview with her manager on 10 August 2022. That admittance provides a sufficient evidential basis for the [NAME] finding that such a requirement was part of the safeguarding procedures [NAME] had in place for [NAME] on 10 August 2022. Nor does [NAME] argue that the [NAME] was wrong or mistaken in fact in finding that she, [NAME], failed to secure the chair. The requirement to do so was in [NAME]’s [NAME] plan which [NAME] had not read but should have read (see our comment in paragraph 36 above), and her failure to read [NAME]’s [NAME] plan formed part of her failure to follow safeguarding procedures and her consequent failure to secure the chair. [NAME] was co-caring for [NAME] with [NAME] that day and it was the responsibility of both of them to ensure that the chair was secured in the tilting position. [NAME] referred to [NAME] being a more senior carer, that was only in respect of [NAME] having more experience as a carer including, particularly, for [NAME]. It was no part of [NAME]’s case before us, and there was no evidence to this effect, that she was required to take a subservient role to [NAME] or only do as [NAME] told her.

76. In all these circumstances, we can find no proper basis for the [NAME] having made a mistake about a material fact in not making further findings of fact about [NAME]’s role in what occurred on 10 August 2022. On the evidence, including the admissions of [NAME], the [NAME] was not mistaken in finding as a fact that [NAME] had failed to follow safeguarding procures in that she (along with [NAME]) had failed to secure/tilt the commode chair before [NAME] used it. Insofar as the [NAME] were required as part of a judgement as to relative culpability to consider [NAME] and [NAME]’s respective responsibilities and roles, in our judgement it did so sufficiently in its decision.

77. Nor did the [NAME] make any material mistake of fact in finding that [NAME] had failed to follow safeguarding procedures on 10 August 2022 by failing to seek medical assistance and by moving [NAME] from the floor without assessing her injuries. Again, the content of the safeguarding procedures and requirements under which [NAME] was working that day can be inferred from her admissions with her [NAME] on 10 August 2022. The material safeguarding rules, which [NAME] accepted in the 10 August 2022 interview she knew about from training, including manual handling training, were (i) never to support someone up from the floor, particularly following a fall, and (ii) if someone had hit their head (as [NAME] had), they should not be moved and medical assistance must be called for. On her own evidence, [NAME] (with [NAME]) moved [NAME] from the floor without assessing [NAME]’s injuries and had not called for medical assistance.

78. Seen from this correct perspective, whether the [NAME] made a mistake of fact about whether [NAME] was non-verbal or could not communicate at all is, in our judgement, immaterial. [NAME] relies on [NAME] not making any noise, and being conscious, as the reason [NAME] was moved from the floor. However, the core safeguarding faults were moving [NAME] from the floor and not calling for medical assistance (i.e. an [NAME]) while [NAME] was on the floor. [NAME]’s assessment of [NAME]’s injuries was irrelevant in terms of those two safeguarding requirements, unless [NAME] was being instructed to make such an assessment by a ‘[NAME]’ operator whilst [NAME] was on the floor, which she was not.

[NAME] v [NAME] ref: UA-2023-001118-V

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20 79. We further reject the error of law argument made on behalf of [NAME] that the safeguarding policies/requirements of leaving [NAME] on the floor and calling an [NAME] in any fall situation were irrational, and thus that they were requirements [NAME] was not obliged to follow or at least could be excused by the [NAME] from not following in terms of assessing the harm of [NAME]’s acts. Much was made on behalf of [NAME] of the harm that might have been done to [NAME] had she been left lying face down while waiting, perhaps for a long time, for the [NAME]. However, on the facts [NAME] said she could see [NAME] was conscious and breathing. Perhaps more importantly, what this argument leaves out of account is the role the ‘[NAME]’ or [NAME] service operator would have taken in enabling [NAME] and [NAME] to assess [NAME] while waiting for the [NAME], and whilst [NAME] remained on the floor, had they followed the safeguarding procedures and called an [NAME].

80. The penultimate error of law argument is that the [NAME] erred in law in making a disproportionate decision to include [NAME] on both [NAME] lists. The arguments here for [NAME] at times treated ‘disproportionate’ as a synonym for ‘irrational’. That is a mistake. As case law such as the first sentence in paragraph [84] of In re B ([NAME]: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1991 shows, properly understood, the argument that the [NAME] made a disproportionate decision is not an argument that the [NAME] erred in law in the procedure it adopted in coming to its decision that it was proportionate to place [NAME] on both lists. The argument here is that the [NAME] erred in law on 12 May 2023 because the barring decision was disproportionate. We have to decide for ourselves whether the decision was disproportionate (see the same citation from In re B). Following Bank Mellat v HM Treasury (No.2) [2013] UKSC 39; [2014] AC 700, and paragraphs [20] and [74] of that decision in particular, this reduces to the fourth criterion in that case, namely whether the impact on [NAME]’s (Article 8) rights is disproportionate to the likely benefit of the barring decision. This has to be assessed in the context (i) of the appropriateness of barring not being a matter for us (see section 4(3) of the SVGA), and (ii) there being no less intrusive measures available: the [NAME] must bar a person if the person has engaged in relevant conduct, the [NAME] has reason to believe they have engaged (or might in the future engage) in regulated activity with children/vulnerable adults, and the [NAME] is satisfied it is appropriate to include the person on the lists. In other words, the question we have to decide is whether the decision to bar was a disproportionate interference with [NAME]’s rights to work with vulnerable adults and children.

81. We do not consider the [NAME] decision was disproportionate. It was not therefore in error of law.

82. An interesting issue may arise as to whether in evaluating whether the barring decision was disproportionate, the Upper Tribunal has to decide this question on the basis of the facts as the [NAME] found them or the facts which we have found the [NAME] was not mistaken about. We heard no argument on this issue. The decision of the House of Lords in Huang v SSHD [2007] UKHL 11; [2007] 2 AC 167 might suggest that it is for the Upper Tribunal to decide whether the barring decision was disproportionate having established the relevant facts: see paragraph [15] of [NAME]. However, it may be an important consideration that the fact finding arose in [NAME] because the relevant statute enabled what is now the First-tier Tribunal, under section 65 and paragraphs 21(1) an (3) in Schedule 4 to the Immigration and Asylum Act 1999, to review any finding of fact on which the decision was based when deciding whether the decision against the appeal was brought was not in accordance

[NAME] v [NAME] ref: UA-2023-001118-V

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21 with the law. The error of law jurisdiction in [NAME] therefore could include reviewing (and redeciding) issues of fact. Under section 4(2) and (7)(a) of the SVGA, however, it may be arguable that ‘facts’ and ‘law’ are kept separate from one another. Moreover, the case law on proportionality is clear that the Upper Tribunal is not carrying out a full merits reconsideration (see B v ISA [2012] EWCA Civ 977; [2013] 1 WLR 124 at paragraphs [14] and [19]) and the Upper Tribunal must give appropriate weight to the [NAME] decision on proportionality (B v ISA at [21]), which arguably must be the [NAME] decision based on the facts as it found them. Given these features of the legal landscape, it may not be open to the Upper Tribunal to base the search for an error of law based on whether the decision was a disproportionate breach of the [NAME]’s human rights on what the Upper Tribunal has decided are the ‘correct’ facts. That may be said to usurp the [NAME] primary decision making function.

83. However, as we have said, we have had no argument on this potentially important point. We therefore proceed on an assumption and one that most favours the appellant, namely we evaluate whether the barring decision was disproportionate on the basis only of the facts which the [NAME] was not mistaken about. This assumption, however, does not assist [NAME].

84. Measuring the effects of the barring decision on [NAME]’s Article 8 Convention rights against the importance of barring her from regulated activity, in our judgement the importance of barring outweighs the effects on [NAME]. Putting this another way, we consider the barring decision strikes a fair balance between the rights of the individual, [NAME], and the interests of the community. The latter includes as a material consideration, per paragraphs [23]-[24] of B v ISA, the need for public confidence in the system for regulating those who work with vulnerable adults and children. We did not, however, hear any argument from either party on this ‘public confidence’ point and our decision does not turn on it.

85. In terms of the severity of the effects of the barring decision on [NAME], we recognise that it will prevent her for many years from working with children or vulnerable adults. We accept her evidence that it is these areas of work which are her chosen professions. However, it is important to recognise that the barring decision does not mean [NAME] cannot work or make a living at all. It is not therefore, on [NAME]’s facts, a decision carrying with it the most serious or gravest of effects in terms of [NAME]’s core human rights. In [COMPANY] v Secretary of State for Transport [2024] EWCA Civ 172; [2024] 1 WLR 327, the weight to be attached the person’s human rights in the proportionality balancing exercise was put in this way: “[21]…. the context will include (1) the importance of the right (e g in A v Secretary of State for the Home Department [2005] 2 AC 68 (“the Belmarsh case”) the rights were personal liberty and the principle of equality, where there was a “suspect” ground, i e nationality); (2) the degree of interference; (3) the extent to which the subject matter is one in which the courts are more or less well placed to adjudicate, both on grounds of institutional expertise (e g they are the guardians of due process but are much less familiar with an area such as the conduct of foreign relations or national security) and democratic accountability (e g when it comes to social and economic policy, including the allocation of limited resources).

[NAME] v [NAME] ref: UA-2023-001118-V

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22 86. As against the interference the barring decision will have on [NAME]’s Article 8 rights, we have to accord appropriate weight to the [NAME] statutory role as the primary decision-maker and its assessment of future risk based on the (correct) findings it made about [NAME] having failed to secure the chair and having failed to leave [NAME] on the floor and seek medical assistance after she fell.

87. The likely benefit of the barring decision is, putting it very broadly, that it will prevent [NAME] from harming other vulnerable adults and children. That risk of [NAME] harming other vulnerable adults and children, giving appropriate weight to the [NAME] view about the same, in our judgement is properly and particularly based on [NAME]’s reaction to [NAME]’s fall. What happened on 10 August 2022 may have been a one-off event but that is because, on her own evidence, it is something that [NAME] had not encountered before. This is not an issue that was explored in any detail before us (see further what we say in paragraph 74 above). However, our judgement on the evidence which was before us is that, notwithstanding her 6 years of [NAME] work and her training, [NAME] did not insist on reading [NAME]’s [NAME] plan and then panicked/froze when [NAME] fell. As a result, she did not follow that which she later accepted she knew should be done and wrongly moved [NAME] from the floor despite knowing [NAME] had hit her head on the floor. So acting could have had very serious consequences for [NAME], as moving her head and neck in an unsecure way could have exacerbated any head or brain injury. Given the risk to others evidenced by [NAME]’s acting outwith the safeguarding rules she knew about and was expected to work under, the likely benefit to the community as a whole of barring [NAME] from working with vulnerable adults and children did not, in our judgement, amount to a disproportionate interference with [NAME]’s Article 8 human rights.

88. We should add that we have given consideration to the character references provided by [NAME] in making the above proportionality assessment. Those references, however, do not address what occurred on 10 August 2022 and [NAME]’s breach of [NAME] safeguarding rules on which we have found the [NAME] were entitled to rely. Moreover, insofar as the references attest to [NAME]’s good work record for 6 years, we have already taken this into account in paragraph 87 above.

89. We also add that we did not find the decisions in [NAME] v [NAME] [2023] UKUT 110 (AC) and [NAME] v [NAME] [2023] 204 (AAC), which were relied on by [NAME], of any real assistance as to the correct approach to proportionality in [NAME]’s appeal. [NAME] and [NAME] would seem to have turned on their own facts. In addition, the comments made in [NAME] about proportionality were obiter (see paragraph [69] of [NAME]) and were not, seemingly, grounded in relevant case law such as Bank Mellat (No.2). As for the [NAME] decision, it appears that the Upper Tribunal found there were mistakes of fact in the [NAME] decision and those factual mistakes as to relevant conduct meant (see paragraph [65] of [NAME]) that “including the Appellant [on either [NAME] list] on the basis of this relevant conduct cannot reasonably be considered to be appropriate”. The subsequent discussion in [NAME] about whether it was disproportionate to include [NAME] on either [NAME] list may also be viewed as being obiter. Insofar as it was not obiter, the decision would seem to turn on its own particular facts which involved ‘occasional’ failure to respect the cared for person’s wishes, facts which have little or no read across to [NAME]’s failings in this appeal. 90. [NAME]’s final ground of appeal concerns the part of the [NAME] decision that included her name on the children’s [NAME] list. She argues that it was irrational, and thus in error of law, for the [NAME] to have based this part of its decision on it being reasonable to consider that [NAME] could be presented with similar situations with

[NAME] v [NAME] ref: UA-2023-001118-V

NCN No. [2025] UKUT 036 (AAC)

23 children and thus (for the [NAME]) to consider her to also present a significant risk to children. It is said by [NAME] that the [NAME] have not explained how such “similar situations” could arise with children, and therefore this part of the decision was irrational/and/or disproportionate.

91. We do not consider the [NAME] erred in law in including [NAME] on the children’s [NAME] list. The children’s [NAME] list is not just about young children, as [NAME] sought to argue. It includes children up to the age of 18. We do not consider it was irrational (or disproportionate) for the [NAME] to include [NAME]’s name on the children’s [NAME] list. Irrationality as an error of law ground is a very high bar. We consider that given the failures we have found the [NAME] was entitled to find in respect of [NAME]’s [NAME] for [NAME] on 10 August 2022, and the future risks which those failures evidenced, the [NAME] was entitled rationally to conclude amounted to conduct which was transferable to children if [NAME] was in the future to work with children: see MG v [NAME] [2022] UKUT 89 (AAC) at paragraph [57-[58]. In this respect we bear in mind that “relevant conduct” includes, per paragraph 3(4)(1(b) of Schedule 3 to the SVGA, “conduct which, if repeated against or in relation to [NAME], would endanger that child or would be likely to endanger him”.

92. It is, moreover, not the case that the issue of transferability is limited to cases involving serious sexual offending or conduct. Nor does transferability depend on the [NAME] showing (per OR v [NAME] [2023] UKUT 160 (AAC) a risk of harm arising from a “willingness to exploit vulnerabilities and to cross ethical boundaries”. That language was obviously appropriate in the OR case but it was not seeking to lay down a legal requirement for all cases.

93. The reasoning of the [NAME] for transferability of risk and placing [NAME] on the children’s [NAME] list is short. In the decision letter it reads: “It's reasonable to consider that you could be presented with similar situations with children, you are therefore also considered to present a significant risk to children.” In the circumstances, and insofar as [NAME] challenged this reasoning as being inadequate on this appeal, that reasoning when read in context was adequate and was sufficiently based on the evidence. Conclusion 94. For all of these reasons, this appeal is allowed and we give the decision in the terms set out above.

Authorised issue by Stewart Wright

Judge of the Upper Tribunal

[NAME]

Member of the Upper Tribunal

[NAME] Member of the Upper Tribunal

On 30 January 2025