Upper Tribunal Upholds Decision to Bar Worker from Adult Activities

1

IN THE UPPER TRIBUNAL Appeal No. UA-2023-000397-V ADMINISTRATIVE APPEALS CHAMBER [2024] UKUT 277 (AAC)

The Upper Tribunal has made an order prohibiting the disclosure or publication of any matter that is likely to lead members of the public to identify [NAME], any of the service users, or members of staff at the centre where [NAME] worked, identified in the Upper Tribunal bundle, or that centre

Between: [NAME] Appellant - v –

Disclosure and Barring Service Respondent

Before: Upper Tribunal Judge Citron, [NAME] and [NAME] following an oral hearing at Manchester Civil Justice Centre on 25 June 2024

Representation:

Appellant: [redacted] Respondent: [redacted]

The decision of the Upper Tribunal is to dismiss the appeal. The decision of the Respondent made on 16 February 2023 (DBS reference DBS6191 [PHONE]) to include [NAME] in the adults’ barred list is confirmed.

REASONS FOR DECISION

This appeal 1. This is an appeal against the decision (“DBS’s decision”) of the Respondent (“DBS”) dated 16 February 2023 to include [NAME] in the adults’ barred list.

[NAME] v DBS

Case no: UA-2023-000397-V

[2024] UKUT 277 (AAC)

2 DBS’s decision 2. The decision was made under paragraph 9 of Schedule 3 to the [NAME] Act 2006 (the “Act”). This provides that DBS must include a person in the adults’ barred list if a. it is satisfied that the person has engaged in relevant conduct, b. it has reason to believe that the person is, or has been, or might in the future be, engaged in regulated activity relating to [NAME] adults, and c. it is satisfied that it is appropriate to include the person in the list.

3. Under paragraph 10, “relevant conduct” for the purposes of paragraph 3 includes, amongst other things, conduct of a sexual nature involving [NAME], if it appears to DBS that the conduct is inappropriate; and conduct which endangers [NAME] or is likely to endanger [NAME]; and a person’s conduct “endangers” [NAME] if he (amongst other things) a. harms [NAME] or b. causes [NAME] to be harmed c. puts [NAME] at risk of harm or d. attempts to harm [NAME].

4. The letter (“DBS’s decision letter”) conveying DBS’s decision: i. stated that DBS was satisfied that

a. on unknown dates [NAME] sexually touched a male resident, [NAME], by inserting his fingers into [NAME]’s anus and repeatedly attempting to have sex with him

b. on an unknown date, [NAME] engaged in unprofessional conversation with [NAME], about his ([NAME]’s) personal life

c. over a period of time, [NAME] failed to report inappropriate behaviour from [NAME], placing [NAME] and colleagues at risk

(we will refer to the above as DBS’s “core factual findings”);

d. [NAME] had engaged in relevant conduct in relation to [NAME] adults because he had engaged in conduct which endangered [NAME] or was likely to endanger [NAME]

e. a barring decision was appropriate, since [NAME] had repeatedly breached professional boundaries with [NAME] in his care;

ii. acknowledged that [NAME] provided evidence of a breakdown in his relationship with some of his colleagues, in support of [NAME]’s account that allegations were been fabricated as part of a grudge; DBS however considered that the evidence given by the victim ([NAME]) negates this and supports the credibility of the allegation. DBS also recognised that [NAME] v DBS

Case no: UA-2023-000397-V

[2024] UKUT 277 (AAC)

3 obtained various positive character references from staff who had worked alongside him; they do not, however, address [NAME]’s interactions with [NAME], specifically;

iii. stated that DBS could not be assured that [NAME] would refrain for repeating the behaviour in future.

Jurisdiction of the Upper Tribunal 5. Section 4(2) of the Act confers a right of appeal to the Upper Tribunal against a decision by DBS under paragraph 3 of Schedule 3 (amongst other provisions) only on grounds that DBS has made a mistake a. on any point of law; b. in any finding of fact on which the decision was based.

6. The Act says that “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)).

7. Permission to appeal was given by the Upper Tribunal (Judge Citron) in a decision issued on 11 January 2024. The permission decision noted that a. DBS’s core factual findings were based on documentary evidence, including:

(i) an undated email from [NAME] about his interaction with [NAME] on 23 May 2022 (pages 57-59 of the Upper Tribunal bundle)

(ii) note of employer’s “investigatory interview” with [NAME] on 25 July 2022, with an handwritten note at the end stating that [NAME] attended on 1 August 2022 and read it to [NAME] who verified it to be accurate (pages 141-143 of the Upper Tribunal bundle)

(iii) note of employer’s “investigatory meeting” with [NAME] on 1 June 2022 (pages 60-72 of the Upper Tribunal bundle).

b. [NAME] had indicated that, if permission to appeal were given, the Upper Tribunal would hear oral evidence from

(i) [NAME], denying core factual finding a.; denying, and giving relevant context for, core factual finding b.; and denying core factual finding c.;

(ii) three other persons who worked at the neurological rehabilitation centre where [NAME] worked at the relevant time:

1. [NAME], a registered social worker, who had trained/mentored [NAME], and who could speak to core factual finding c. in particular;

[NAME] v DBS

Case no: UA-2023-000397-V

[2024] UKUT 277 (AAC)

4 2. [NAME] (whose written evidence is at page 55 of the Upper Tribunal bundle); and

3. [NAME] (whose client was in the room next to [NAME]’s at the neurological rehabilitation centre, at the relevant time).

8. The permission decision concluded that it was realistically arguable that the oral evidence above, which was not available to DBS, could, if deemed credible, provide information sufficient to show that DBS made mistakes in the findings of fact on which its decision was based Documentary evidence in the Upper Tribunal bundle 9. In addition to the decision letter, evidence in the bundle of 351 pages included: a. an email of 25 June 2022 from [NAME], ‘consultant’ at [NAME], to DBS stating that the police had been, had interviewed [NAME], had decided there was no case, and would not be taking the investigation further; b. a DBS referral form from [NAME] dated 7 June 2022, showing [NAME] as the referrer, and, amongst other things, describing [NAME]’s work as ‘rehabilitation support worker for adults with neurological injuries’; c. a further DBS referral form from [NAME], dated 7 August 2022, showing the referrer as [NAME]’s line manager, and which, amongst other things: stated that [NAME] was born in 1944 and said that he had had a brain stem stroke with severe right sided paralysis; that he could be confused and was [NAME] medically, physically and emotionally; d. a timeline from [NAME], which included the following: (i) circa 25 May 2022: “[NAME] makes a comment that [NAME] had used lip salve to penetrate his anus. [NAME] further alleges that [NAME] wanted to ‘bum’ him and wanted him. Alleged that [NAME] instructed [NAME] not to raise concerns as [NAME] was joking” (ii) 30 May 2022: “[NAME] reports the concern and police care informed along with safeguarding and CQC. The management were provided with a statement by a member of staff disclosing that [NAME] had stated a member of staff ‘wanted’ him. Had used his lip balm to insert into his anus (please note that this information was misheard and the below will clarify events)” (iii) 30 May 2022: “Police informed ([NAME] [regional] police incident [details]) along with safeguarding and CQC. The member of staff was called home and suspended. Views varied around capacity and as such we needed to speak with [NAME] and assess what his capacity in relation to this issue was complicated further by his being in hospital for part of the time of these events” (iv) 1 June 2022: “initial investigatory meeting with member of staff held”

[NAME] v DBS

Case no: UA-2023-000397-V

[2024] UKUT 277 (AAC)

5 (v) 6 June 2022: “PIPOT (Person in a Position of Trust) referral and DBS referral made for the member of staff concerned. Investigation paused pending police advice” (vi) Up to 15 June 2022: “chased the police to actually attend the service without success. [NAME] was deemed to have capacity and as such we could not disclose events to his family without his consent (vii) 28 June 2022: “[NAME] was chatting generally with [NAME] who then suddenly mentioned that a member of staff had ‘stuck something up my bum’. [NAME] acknowledged the police had been involved during this conversation. [NAME] sad he was worried as the staff member had not been in for a while and he was worried about him coming back. He also stated that the same member of staff was ‘heavy handed’, made him feel uncomfortable, had told him in the past that he was ‘in charge’ and that ‘knowing more than everyone else’. [NAME] says that the member of staff told him to continue having bed baths and not showers as he is ‘too strong’ ” (viii) 14 July 2022: “[NAME] raised a formal complaint about the lack of attendance to the Police Commissioner’s office. Victims charter agreed to have been breached and weekly reporting to Police Commissioner for [NAME]'s case by the police in place for oversight” (ix) 16 July 2022: “[NAME] attended the home to interview [NAME] who denied anything had happened” (x) 18 July 2022: “Police closed the case which led to safeguarding closing the case” (xi) 22 July 2022: “Disciplinary hearing held for the member of staff in relation to non-police involved matters relating to [NAME]” (xii) 25 July 2022: “[NAME] attended service to speak to staff involved in aspects of interest to police as they were no longer proceeding. Staff and [NAME] spoken with. [NAME] gave a fuller disclosure that there had been what he described as consensual sexual contact with the member of staff. Consent requested to re-inform the police (granted). Police, CQC and safeguarding informed of the new information” (xiii) 26 July 2022: “Contacted police again no response from [NAME] so a new referral was made. Declined as the same allegation, same perpetrator and same victim so police say [NAME] must deal with it but is on leave” (xiv) 27 July 2022: “Contacted police again [NAME] spoken with not attending until after his leave” (xv) 27 July 2022: “[NAME] spoken with and is cancelling some leave to attend the service. He has described the challenge is that [NAME] is saying he consented so it may not fall under criminality. Person in a position of trust crimes refer to

[NAME] v DBS

Case no: UA-2023-000397-V

[2024] UKUT 277 (AAC)

6 children, not [NAME] adults. [NAME] expressed a view that it seems there is a risk consent was groomed due to vulnerability rather than just consented. [NAME] has indicated he is still looking at what laws might apply.” e. a hand-written statement of [NAME], saying that on Monday 23 May she was in [NAME]’s room, with [NAME], giving [NAME] personal care; when she mentioned that [NAME] was going to be on shift, [NAME] said that [NAME] “wants to have his way with him [[NAME]]”, that [NAME] “sticks [[NAME]]’s lipstick up his bottom, and that [NAME] “also ‘shoves his dick up his bum and cums on him’ “. [NAME]’s statement said this really upset her and that [NAME] was not known to usually speak like that; f. a hand-written statement of [NAME], dated 31 May 2022, as follows: “a couple of weeks ago while supporting personal carers, [NAME] was talking with me and [NAME] (support worker). I mentioned that [NAME] was on shift as they get along and [NAME] was laughing and said [NAME] wants me and he carried on laughing. I asked why does he think this [NAME] said because he is gay and wants to bum me and laughed again. During supporting this was not mentioned. A couple of weeks ago [NAME] claimed there was a camera in his room (care noted). In my experience [NAME] is becoming quite confused. While supporting [NAME] says delirious stuff like there are cameras watching me. From what I have noticed while working with [NAME] has a good relationship with [NAME]”; g. 31 May 2022 suspension letter from [NAME], signed by [NAME]; h. 3-page typed “statement in regards to [NAME]” from [NAME]’s email timed at 11:13 am (undated); this said that on 23 May 2022 went into [NAME]’s room for a wellbeing check; [NAME] seemed to be in low mood; [NAME] made him laugh by calling him “chicken”; [NAME] showed signs of confusion; they had a conversation about a friend [NAME] had in his youth who was “like” [NAME] (and this seemed to mean, that he was gay); [NAME] asked about the “stuff” they did together (and said it the note that it was “stupid” for him to have asked this); [NAME] gave [NAME] “some explicit details” but he had a wife and he let that friend “go” and never saw him again; the note then says that [NAME] said “no well things were different then and things are different now [[NAME]], look how much you adore me and I cherish you and I know you appreciate me being funny with you, and I said that after I separated from my ex husband I haven’t meet many people to date seriously but that don’t mean have to tell everybody about my dull life while laughing and making quote gestures or who have I met and kissed. That’s personal life, but listen I’m here for you and offered [[NAME]] a hug and he took the gestures sweetly he gave me pat on my back …”; [NAME] then checked [NAME]’s pad; the note says that [NAME] was “still saying a lot of things continuously but most of them were out of context and didn’t make much sense, even during our conversation I had to pay good attention and had to understand his words slowly and asked him to repeat after deep breath …”; i. Note of “[NAME] investigatory meeting” of 1 June 2022, chaired by [NAME]. In this, [NAME] was asked why the incident in [NAME]’s 3-page statement (immediately above) was relevant the sexual allegations [NAME] had made against him. [NAME]’s response is recorded as follows: “It was relevant because the thing

[NAME] v DBS

Case no: UA-2023-000397-V

[2024] UKUT 277 (AAC)

7 is I don’t understand where that would come from by talking and then he start talking about somebody that he used to know, somebody who was like me. I feel like, because I have discussed the whole thing with him, he’s telling me things that are in his nature. I think that somehow it binds it together, me asking him details. I did say to him if I had a gentleman as good as you are, as adorable as you are and if you were younger at this stage, you would be the perfect husband because you are so nice and he was laughing hysterically making himself cough at that”; j. 45 page transcript of a meeting on 21 July 2022 with [NAME] and a union representative; k. 1-page typed note headed “28 June 2022” and signed by [NAME], assistant psychologist/rehabilitation support worker; this said that when [NAME] was on shift on 26 June, sitting outside in the garden with [NAME] brought up that a staff member had made a comment to him about “sticking something up my bum”; the note said that [NAME] had communication difficulties and could be difficult to understand; the note reported that [NAME] said that someone had been to see him about this, and had told him that the police were involved; the note said that [NAME] said that the same staff member had made him very uncomfortable as he was “heavy handed” and had made comments to [NAME] in the past about being “in charge” and “knowing more than everyone else”; the note said that [NAME] had told [NAME] on previous occasions that the staff member had told him to have bed baths rather than showers, and that he is “too strong”. The note said that the conversation suggested to [NAME] that [NAME] was able to recall retrospective conversations with accuracy – he did get some days confused. The note said that [NAME] “appeared to be able to recall events accurately and demonstrate accuracy and awareness around them” l. notes of an investigatory interview with [NAME] on 25 July 2022, chaired by [NAME], with an handwritten note at the end stating that [NAME] attended on 1 August 2022 and read it to [NAME] who verified it to be accurate; m. letter to [NAME] dated 30 July 2022 signed by [NAME] as “nominated individual”, dismissing him for gross misconduct; n. another letter to [NAME] of 30 July 2022 signed by [NAME], concerning [NAME]’s allegations that three staff members, including [NAME], had behaved in an unprofessional manner to him and had conspired against him; o. character references for [NAME] by six colleagues who had worked with him at the centre, including [NAME]; p. DBS’s “barring decision summary” document: this recorded that two allegations were not proven (whilst finding that the allegations comprising DBS’s core factual findings were proven); it acknowledged that at the point of the disciplinary hearing [NAME] was not being investigated in relation to the sexual abuse, due to the fact that [NAME] had declined to support a police investigation – when had been spoken to, [NAME] denied that any of this had happened; police then closed the case with no further action. The document also recorded that “as the behaviour involves abuse of position of trust to facilitate sexual contact with [NAME], the

[NAME] v DBS

Case no: UA-2023-000397-V

[2024] UKUT 277 (AAC)

8 case will be progressed straight to minded to bar in line with current guidance” q. a 38-page document from [NAME] submitted to the Upper Tribunal and dated 28 August 2023 with submissions on various matters (including on DBS’s core factual findings), character references (including from [NAME] and [NAME]), and copies of texts; (i) [NAME]’s document, dated 28 March 2023, gave an account of what happened on 23 May 2022 when she and [NAME] were in [NAME]’s room: [NAME] wrote that [NAME] “jokingly” (as he “always had done” during her years working at the centre) said that [NAME] liked him “and I think he wants to bum me”; that [NAME] then “laughed hysterically” “to get people’s reaction”; that [NAME] told [NAME] that was inappropriate to say and he shouldn’t say things like that; [NAME] then said “I’m sorry, I was just joking and laughed again”; [NAME] said that [NAME] often said things to “get reaction”; that [NAME] always said things that made no sense and appeared confused “on multiple times” (ii) one of the character references was from [NAME], a deputy manager at the centre; she had left the centre by the time the incidents involving [NAME] and [NAME] in DBS’s core factual findings a. and b. had occurred; [NAME] did, however, question how, in the investigatory interview with [NAME] on 25 July 2022, chaired by [NAME] had been able to speak so articulately: [NAME] said that [NAME] had “profound dysphasia and dysphagia” – he could answer “closed questions” but “never quite managed long sentences as his inability to swallow left him breathless and choking.” The Upper Tribunal hearing 10. [NAME] attended the hearing, as did [NAME] representing DBS. We are grateful to them both, for presenting their respective arguments clearly. 11. [NAME], representing himself, also gave evidence at the hearing, including via cross examination and answering questions from the panel. Two of [NAME]’s witnesses, as referred to in the permission decision, also attended, gave evidence, made themselves available for cross examination, and answered questions from the panel: [NAME] and [NAME]. [NAME] told us at the start of the hearing that [NAME], the third such witness, was unable to attend in person. The panel decided that [NAME] could give evidence by video link, if she was able to at the point in the hearing when it made sense to hear her evidence; but fairness and justice would not support adjourning, or otherwise disrupting the natural flow and order of, the hearing, to enable [NAME] to provide evidence; this was because the case management directions prior to the hearing had given [NAME] a fair and just opportunity to arrange for his witnesses to provide evidence at the hearing, in an orderly way. In the event, [NAME] was unavailable, or unable, to join the hearing by video link at the point at which her evidence would otherwise have been heard; and so we did not, in the end, hear oral evidence from [NAME].

12. At the start of the hearing, the panel were provided with a 7-page undated document entitled ‘[NAME]’s witness statement’; although [NAME] said that he had

[NAME] v DBS

Case no: UA-2023-000397-V

[2024] UKUT 277 (AAC)

9 attempted to send this to the Upper Tribunal prior to the hearing, it appeared not to have been received (this may have been connected to [NAME]’s hospitalisation shortly before the hearing – see the next paragraph); at the hearing, we accepted that this document could be submitted (there was no objection by DBS, who appeared to have already received it); there was a short adjournment at the start of the hearing to allow the panel to read it.

13. At the hearing, [NAME] explained that, unfortunately, he had had a mild asthma attack (of which he had a history) and had to be hospitalised over the weekend preceding the hearing (which was on a Tuesday); he had been discharged from hospital on Monday morning i.e. 24 hours prior to the hearing. On behalf of the panel, Judge Citron explained to [NAME] that, if there was any significant risk of the hearing aggravating his condition, or of the condition meaning that he could not fairly and justly present his case, the panel would consider whether to the adjourn the hearing. In response, [NAME] assured the panel that carrying on with the hearing would not adversely affect his health in any material way, and that he was able to present his case and his evidence satisfactorily (and indeed was keen to proceed with the hearing).

In all the circumstances, we decided it was fair and just to proceed with the hearing. [NAME]’s evidence and arguments – summary 14. [NAME]’s ‘witness statement’ document stated that DBS’s core factual findings were wrong: a. regarding core factual finding a., [NAME] contended that [NAME]’s “statement” was “a complete fabrication”, and that it contained inconsistencies and contradictions that undermined its credibility; (i) [NAME] emphasised that [NAME]’s “initial response” when questioned about any inappropriate behaviour was “a denial” (ii) [NAME] stated that [NAME]’s mental state and capacity at the time of the alleged incidents was “highly questionable”; [NAME] stated that many of the residents at the centre had cognitive and mental impairments, and these could impact their perception, memory and ability to distinguish reality from fantasy (iii) [NAME] submitted that there was no evidence to corroborate that of [NAME]; [NAME] was critical of DBS’s evaluation of the evidence; b. regarding core factual finding b., [NAME] contended that the conversation with [NAME] was harmless and well-intentioned; it was a genuine attempt to connect with [NAME] and provide him with a sense of comfort and understanding; c. regarding core factual finding c., [NAME] submitted that this finding ignored the nuances of working with individuals with complex neurological conditions; the incidents cited, such as [NAME] running his hand along [NAME]’s back or thigh, were not malicious or threatening acts but rather manifestations of [NAME]’s condition and cognitive impairments; [NAME]’s approach was to redirect [NAME]’s behaviour and remind of appropriate boundaries; to label [NAME]’s behaviour as “inappropriate”, and expect immediate reporting, was overly simplistic and insensitive.

[NAME] v DBS

Case no: UA-2023-000397-V

[2024] UKUT 277 (AAC)

10 15. [NAME] also asserted that he had been unfairly targeted and subjected to bullying within the workplace; those who made accusations against him had probably done so out of malice or a desire to retaliate against [NAME]. In support of these assertions, [NAME] alluded to his having “reported”, in April 2022, wrongdoing that led to a patient’s death; and to his having given evidence, in March 2023, against his ex-employer in a coroner’s court ([NAME] said that the centre was found guilty of gross negligence in those proceedings). 16. [NAME] made representations about the effect of his being included in the adults’ barred list: it made it exceedingly difficult to secure employment; and there were the emotional and psychological effects of being found to have done the things set out in DBS’s core factual findings.

17. In his oral evidence, [NAME] made the following points: a. [NAME] was a large fellow; he had various tubes in his body; three people were required to turn him; hence, according to [NAME], the allegations of sexual activity were far-fetched; b. [NAME]’s room was open to the nursing station; this again, according to [NAME], made the allegations of sexual activity far-fetched.

18. In cross examination, [NAME] gave his view that [NAME] had never given an account of sexual intimacy between them; [NAME] asserted that the account attributed to [NAME], had been fabricated; [NAME]’s view was that [NAME] did not have the capacity to say the things that were attributed to him. [NAME] said that the reason he had been able to have the conversation with [NAME] about the “friend” of his youth, was that [NAME], through care and sensitivity, was able to communicate with [NAME] at this level. 19. [NAME] spoke highly of [NAME]’s abilities as a care worker, in his oral evidence. He had worked with [NAME] and said that he had a disease which affected his speech. [NAME] left the centre in 2021. DBS’s submissions on evidence 20. [NAME] argued that it was extremely implausible that [NAME]’s account of sexual intimacy between him and [NAME] (as recorded in the ‘investigatory interview’ with [NAME] on 25 July 2022) had been fabricated by [NAME]; it was much more likely that [NAME] had given the account attributed to him. [NAME] submitted that the account is not suggestive of someone who was “out of touch” with reality: [NAME] at one point repeats [NAME]’s evidence back to him, and [NAME] corrected certain details; [NAME]’s evidence also suggested that [NAME] was able to recall things accurately; and [NAME]’s own evidence was that he had had a conversation with [NAME] about [NAME]’s experience as a young man. Discussion 21. To decide whether DBS had made a mistake in making core factual finding a., we had to weigh conflicting evidence.

22. On the one hand, there was [NAME]’s evidence, that there had been no sexual intimacy between him and [NAME].

23. On the other hand, there was a detailed account of sexual intimacy between them, in the document recording the ‘investigatory interview’ with [NAME] on 25 July 2022. For shorthand, we shall refer to this as “[NAME]’s account” of what happened.

[NAME] v DBS

Case no: UA-2023-000397-V

[2024] UKUT 277 (AAC)

11 24. On the face of it, [NAME]’s account is credible and reliable: it is detailed; it was documented not long after the events in question occurred; and aspects of it were corroborated by [NAME]’s own evidence (such as, the fact that [NAME]’s mood was low at the time that he had a conversation with [NAME]; and [NAME]’s good relationship with [NAME]). 25. [NAME] presented multi-layered arguments as to why [NAME]’s account is not to be believed. The first layer of argument is that the account is itself fabricated i.e. [NAME] himself never gave the account of sexual intimacy with [NAME] that he is recorded as having made on 25 July 2022. In our view, it is improbable that [NAME]’s account was fabricated in this way: a. we have corroborating evidence, including from [NAME], a friend of [NAME]’s and one of his witnesses, that [NAME] was talking about his having had sexual intimacy with [NAME], around May 2022. We acknowledge that [NAME]’s written account, from May 2022, was less detailed than [NAME]’s account of 25 July 2022; and that [NAME] herself believed [NAME] to be joking, or otherwise not to be taken seriously; but her evidence does corroborate that of [NAME], as regards [NAME]’s speaking of sexual intimacy with [NAME], around this time; b. the fact that [NAME] did not, initially, wish to provide details to the police, does not in our view support the contention that [NAME]’s account, made after he changed his mind, was fabricated; in our view, the likely reason for [NAME]’s initial refusal to give details to the police (and to claim that “nothing had happened”) was that (i) the intimacy had been consensual (this is clear from [NAME]’s account); and (ii) [NAME] and [NAME] were on good terms and therefore [NAME] was hesitant about doing something (like informing the police) that could get [NAME] “into trouble”; c. it seems to us likely, in the circumstances, that, as the ‘investigatory interview’ document suggests, [NAME]’s account was confirmed in the presence of a police officer, [NAME], on 1 August 2022; a reason we consider this credible is the detailed evidence of DC Vines’ involvement in the case in July and August 2022, including his initially interviewing [NAME], his then being on leave just after [NAME]’s account was given on 25 July, and his cancelling leave to attend the centre; d. the evidence indicates to us that, although [NAME]’s speech could be difficult to understand due to his physical impairments, he was capable of having a detailed and nuanced conversation with someone who made efforts to understand what he was saying; the evidence to which we refer includes that of [NAME] himself, as regards the conversation he had with [NAME] around this time about the “friend” of his youth; and the evidence of [NAME], an assistant psychologist, at about this time about her conversation with [NAME]. It seems to us that [NAME]’s account as recounted in the document by [NAME], is consistent with this assessment of [NAME]’s ability at the time to have a detailed and nuanced conversation; we do not therefore consider that the very detail, and nuance, of [NAME]’s account supports the contention that that account was fabricated.

26. In our view, therefore, it is distinctly improbable that [NAME]’s account was fabricated; on the balance of probabilities, [NAME]’s account was given by [NAME] himself, and not fabricated by [NAME].

[NAME] v DBS

Case no: UA-2023-000397-V

[2024] UKUT 277 (AAC)

12 27. [NAME]’s second layer of argument against [NAME]’s account is that, even if it was genuinely [NAME]’s own account, [NAME]’s mental state was such that his account was not reliable: there is evidence, particularly that of [NAME], that [NAME] was something of a fantasist, and that he would make things up as a way of attracting attention to himself; [NAME]’s arguments suggested that this could be connected to the neurological condition for which [NAME] was in the centre. We find it improbable that [NAME]’s account was “made up” by [NAME] in this way: the detail of the account supports its veracity; [NAME]’s initial unwillingness to give the account, also supports its truthfulness, in that [NAME] was taking matters “seriously”, and hesitating before deciding to give his account – it does not support the idea that [NAME] was “joking” in giving this account, or frivolously trying to attract attention to himself.

28. Nor are we persuaded by [NAME]’s arguments that the sexual intimacy, as described in [NAME]’s account, was unlikely due to physical constraints or the accessibility of [NAME]’s room: [NAME]’s account deals with the latter point by noting that [NAME] closed the door at relevant times; and it seems likely that [NAME] would have been able to carry out the intimate acts described in [NAME]’s account, on his own.

29. It follows that we consider [NAME]’s account to be strong evidence; and, consequently, that we find [NAME]’s denial of sexual intimacy with [NAME] to be less believable.

30. We have not therefore found DBS to have made a mistake in making core factual finding a.; and given the self-evident seriousness of that finding, from a safeguarding perspective, the other two core factual findings are not, in our view, “material”, in the sense that DBS’s decision would have been the same even if those findings had not been made. For completeness, however, we record our view that it was not a mistake for DBS to have found that the [NAME]’s conversation with [NAME], relating to the “friend” of [NAME]’s youth, [NAME]’s sexuality, and [NAME]’s sexuality, was “unprofessional”; but it was a mistake for DBS to have found that [NAME] “failed” to report inappropriate behaviour from [NAME], in that we accept [NAME]’s evidence that the “touching” behaviour from [NAME] was well-known to staff at the centre and there was a general practice, which was tolerated by the management of the centre, of not making written reports of these incidents, but, rather, of mentioning them orally to the nursing staff; and that [NAME] had conformed with this general practice.

31. We also record, for completeness, our view that DBS’s decision made no mistake on a point of law; in particular, given core factual finding a., it was not disproportionate to include [NAME] in the adults’ barred list. Conclusion 32. DBS’s decision involved no mistake either in a factual finding on which it was based, or on a point of law. DBS’s decision is accordingly confirmed.

Zachary Citron

Judge of the Upper Tribunal

[NAME] Members of the Upper Tribunal

Approved for release on 11 September 2024