AB v Disclosure and Barring Service

The decision of the Upper Tribunal is to dismiss the appeal. The decisions of the Respondent (DBS reference DBS6191 01007562626 ) made on 12 June 2024 (adults’ barred list) and 15 October 2024 (children’s barred list) to include AB in the respective barred lists are confirmed. REASONS FOR DECISION This appeal

1. This is an appeal against the decisions (“ DBS’s decisions ”) of the Respondent (“ DBS ”) dated 12 June 2024 (adults’ barred list) and 15 October 2024 (children’s barred list) to include AB in the respective barred lists. The legislation underlying DBS’s decisions

2. DBS’s decision of 12 June 2024 was made under paragraph 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (the “ Act ”). This provides that DBS must include a person in the adult’s 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 vulnerable 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 9 includes conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult; and a person’s conduct “endangers” a vulnerable adult if she (amongst other things) a. harms a vulnerable adult b. causes a vulnerable adult to be harmed c. puts a vulnerable adult at risk of harm or d. attempts to harm a vulnerable adult.

4. DBS’s decision of 15 October 2024 was made under paragraph 3 of Schedule 3 to the Act . This provides that DBS must include a person in the children’s 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 children, and c. it is satisfied that it is appropriate to include the person in the list.

5. Under paragraph 4, “relevant conduct” for the purposes of paragraph 3 includes conduct which, if repeated against or in relation to child, would endanger that child or would be likely to endanger them; and a person’s conduct “endangers” a child if she (amongst other things) a. harms a child b. causes a child to be harmed c. puts a child at risk of harm or d. attempts to harm a child. Jurisdiction of the Upper Tribunal

6. Section 4(2) of the Act confers a right of appeal to the Upper Tribunal against a decision by DBS under paragraph 9 and 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.

7. 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) ). The grant of permission to appeal

8. Permission to appeal was given by the Upper Tribunal (Judge Citron) in a decision (the “ permission decision ”) issued on 4 March 2025. The material parts of that decision were as follows (with some additional anonymisation): Grant of permission to appeal

2. AB’s case, expressed legally and succinctly, is that there are mistakes in each of DBS’s findings of fact. I now go through these one by one, indicating in brief what I understand AB’s case to be: DBS’s finding that on 25 December 2022 whilst employed as a support worker at a [nursing] home, AB refused to reposition service users who were in need of pressure sore relief

3. AB’s case is that this finding was mistaken because it omits the fact that the reason she did not want the service users to reposition on to mats, was that this required another service user (“PG”, as referred to on page 72 of the bundle) to be “pinned” to the table (otherwise that other service user would be of danger to the service users on their mats); AB’s case is that she wanted to reposition the service users to their beds, instead; her case is that she was a whistleblower in relation to the issue of “pinning” the other service user to the table. DBS’s finding that on 8 February 2023 whilst employed as per the previous finding, AB failed to preserve the dignity of service user SA by transporting him through the home in a state of undress

4. AB’s case is that this finding was mistaken because it omits the fact that SA had come downstairs (to use facilities downstairs, because those upstairs, where SA slept, were broken), by himself, in a state of undress; that AB had in fact tried to put a towel around him. AB’s case is thus that it is misleading to describe her as having “failed to preserve SA’s dignity” and “transporting him through the home in a state of undress” – the situation was not one of her choosing, and she was trying to mitigate it. DBS’s finding that on 22 February 2023 whilst employed as per the previous finding, AB failed to identify that a service user was experiencing a seizure as she had failed to follow the Epilepsy Support Guidelines

5. AB’s case is that this finding was mistaken because it omits the fact that she was the only member of staff in the lounge at the time with seven service users; there should have been two staff there; and that is why she did not notice the seizure happening, which she says was “quick”. DBS’s finding that whilst employed as per the previous finding, AB deliberately and repeatedly called a service user by the wrong name in the presence of the service user

6. The background to this, according to information on page 42 of the bundle (the referral to DBS), is that the service user’s name was _eni, but AB referred to her as _emi.

7. AB’s case is that this finding was mistaken because it omits the fact that it was because of her accent, or “the way she speaks”, that AB mispronounced _eni as _emi; it also omits the context that AB went to special effort with, and had a good relationship with, this service user; and in fact one of AB’s character references comes from this service user’s mother. DBS’s finding that whilst employed as per the previous finding, AB frequently exhibited hostility and unprofessional conduct towards a number of her colleagues

8. AB’s case was that this was not fair and accurate. In particular, she denies racism towards colleagues. DBS’s finding that between 22 January 2024 and 1 March 2024 whilst employed as a support worker for a [charity supporting people with learning disabilities], AB failed to support service users in her care in line with the service users’ wishes and established procedures

9. AB’s case focused on an incident in a shop with a service user (and which appears to be the reason for the referral to DBS: see page 163 of the bundle), in which she denies being aggressive to the service user. Why AB’s case is realistically arguable

10. It seems to me realistically arguable that, if AB were found, following fair and just questioning by DBS’s counsel at a hearing, to be a credible and reliable witness, that her evidence would be found more persuasive than that put forward by DBS. I acknowledge that her case is less detailed as regards the last two factual findings set out above, but I think her case remains arguable as a. the penultimate finding is broadbrush; AB’s case that it is mistaken is, to a large extent, interwoven with her evidence on the true context for DBS’s other factual findings; b. the final finding is also somewhat lacking in specificity; apart from the incident mentioned in the referral to DBS (which AB’s case does address), the only other evidence supporting this finding (that states conclusions as opposed to allegations) appears to be the four bullet points in the letter from the employer of 13 March 2024, on page 213 of the bundle; one of these bullet points appears to be the incident just mentioned; the other bullet points are somewhat vague, which arguably weakens their evidential value. Documentary evidence in the Upper Tribunal bundle

9. In addition to DBS’s decision letters, evidence in the bundle of 399 pages included: a. the 27 October 2023 referral from the nursing home to DBS; this showed i. AB as being born in 1962 i.e. she was in her early 60s at the time of the incidents in question; ii. that AB started working for the nursing home in April 2022 (i.e. the incidents took place in the first year of her working there); and that her employment there ended after 15 months, in July 2023; iii. that service user SA, aged around 50 at the time, required support in most areas of personal care, hygiene, and was physically unable to do this himself; and did not have capacity to consent; iv. that the service user whom, DBS found, AB called by a wrong name, had autism and severe learning disabilities and cerebral atrophy; b. a resignation letter of 13 July 2023 from AB to the nursing home where the incidents about which DBS made factual findings (apart from the last one) took place; the points made by AB there include the following: Regarding the accusations of me being abrupt and aggressive to a senior staff member, as many have stated, I speak that way all the time, so it is unfair to assume that I was being rude. The allegations of racism are absurd, and other than one person who accuses me of saying it and also states that I am ok and like her, everyone else's allegation of me being racist was based on hearsay. … Unfortunately, I feel this has spread hatred and gossip about the workplace about me and what I can now only describe as an agenda to have me dismissed. The two complaint emails, sent at the same time on the same date, clearly indicate gossiping and planning of the complaints and allegations of neglect of SA. As per the care plan, SA is 2:1 when receiving personal care, yet the accusation of failing to preserve dignity falls solely onto me. Please note that staff member JJ clearly stated that SA was wearing a shirt until you led him to another answer via your questioning. Also, there seem to be contradictive comments with the answers given; however, the stories of me sitting on the sofa and pointing have been discussed between the staff, as one member of staff indicates in their statement. c. an ‘internal investigation report’ by the nursing home, regarding 8 allegations, and citing 11 witnesses, dated 28 June 2023 (9 pages); d. a 19 October 2023 ‘disciplinary hearing outcome’ letter (9 pages) from the nursing home to AB, upholding 6 allegations; e. evidence on which the above relied, including: i. minutes of an investigation meeting by the nursing home on 23 February 2023 with AB (6 pages, each signed by AB); minutes of another such investigation meeting, on 10 March 2023 (11 pages, each initialled by AB); ii. minutes of an investigation meeting by the nursing home on 23 March 2023 with MM, a registered nurse at the nursing home (5 pages); and an email from her to the nursing home, on 8 February 2023; iii. incident witness statement (10 February 2023, 1 page) by, and investigation meeting minutes by the nursing home (23 February 2023, 3 pages) with, TM, a “domestic” at the nursing home; iv. statement by (25 December 2022, 1 page), and investigation meeting minutes by the nursing home (28 February 2023, 5 pages) with, IP, a care worker at the nursing home; v. interview notes by the nursing home with MM2 and MV, care workers at the nursing home, dated 28 February 2023 (5 pages and 2 pages); vi. minutes of an investigation meeting by the nursing home on 1 March 2023 with AJ, a care worker at the nursing home (3 pages); vii. interview notes by the nursing home with AD, a care worker at the nursing home, dated 28 February 2023 (3 pages); viii. interview notes by the nursing home with SC, a care worker at the nursing home, dated 2 March 2023 (2 pages); ix. interview notes by the nursing home with RG, a care worker at the nursing home, dated 28 February 2023 (2 pages); email from RG dated 6 January 2023; x. interview notes by the nursing home with RP, a care worker at the nursing home, dated 28 February 2023 (4 pages); emails from RP dated 25 December 202 and 6 January 2023; xi. interview notes by the nursing home with JJ, a care worker at the nursing home, dated 28 February 2023 (4 pages); xii. nursing home ‘incident report form’ signed by AB re: incident on 1 December 2022; xiii. nursing home’s ‘support guideline’ documents for several service users; f. referral from the charity supporting people with learning disabilities dated 3 May 2024; this showed i. AB’s role had been as a support worker; she worked there for less than two months, from 22 January to 13 March 2024; AB was dismissed within her six-month probation period; ii. the summary of the circumstances which resulted in AB being “removed from regulated activity”, included the following:

1. a service user reported to the charity that AB, while out supporting her to get her mother’s day cards, shouted at her and told her to get out of the way and pushed her on her back;

2. the service user was aged in her late-50s at the time; she had a learning disability and could find it difficult to control her anxieties; this could manifest in her throwing/breaking objects or getting into a “tiswas”; she needed supporting around managing her emotional needs, to stop her mental health from deteriorating;

3. AB denied pushing and shouting at the service user; AB said that the service user had shouted at a little boy; AB asked the service user to calm down and leave the shop; the service user then started to shout at AB in the shop;

4. none of this had been documented by AB; the records simply stated that the service user had a lovely time out in the community; AB stated that it was not “major” enough to report;

5. the charity stated that the service user became very withdrawn around this incident;

6. the charity stated that within AB’s time there, a few services users had reported concerns around AB’s attitude towards service users and AB had been spoken to on two different occasions; g. AB’s representations to DBS (undated), which made the following points: i. she alleged a coordinated effort to tarnish her character, and a misguided attempt to deflect attention from the nursing home’s shortcomings; ii. her mother was very unwell during this time; AB’s requests for time off were declined; iii. her actions were always in the best interests of those under her care; iv. SA required 2:1 support; she should not have been left on her own; v. there were tension between her and MM, the registered nurse; h. eight character references; i. a letter from the nursing home to AB dated 13 March 2023, referring to AB being absent from work due to stress; and a statutory sick note; j. a Care Quality Commission inspection report into the nursing home published on 24 October 2023; the overall rating was “requires improvement”; k. termination of employment letter dated 13 March 2024 from the charity supporting people with learning disabilities, and its ‘probation hearing workbook’; l. DBS’s barring decision summary document. The Upper Tribunal hearing

10. AB attended the hearing, as did Ms Hartley representing DBS. We are grateful to them both, for presenting their respective arguments.

11. AB, representing herself, also gave evidence at the hearing, including via cross examination and answering questions from the panel.

12. The hearing was held on the cloud video platform, at AB’s request (with no objection by DBS). DBS’s rationale for its decisions

13. In its ‘barring decision summary’ document, the DBS had “definite concerns” in two areas. One of these was “ Any other attitude endorsing harmful behaviour”; the document gives the following “rationale” for DBS’s concern under this head: It appears that on a number of occasions [AB] has imposed her own perspective and methods of treatment on service users in her care, ignoring their care plans and refusing to follow instructions from seniors for their care. It appears that she continued to behave in this manner despite being told her actions were inappropriate. Her actions put service users at risk of physical and emotional harm. When subsequently employed at [the charity supporting people with learning disabilities] it appears that within 6 weeks, she repeated similar behaviour on at least 3 occasions, causing service users emotional harm. [AB’s] apparent inability to adhere to policies and procedures in preference to her own perspective, raises the concern that she holds an attitude that her opinions supersede those of her colleagues and the needs of service users and that this attitude is embedded. Should this attitude continue to be repeated in regulated activity in future, she would pose a risk of physical and emotional harm to those in her care. …. … It is of concern that despite the number of allegations against her, the findings of [the nursing home] and those of the DBS she appears unable to consider that she was at fault or her conduct inappropriate. It is of further concern that her resignation letter acknowledges that she is abrupt and aggressive and does not appear to consider that she should attempt to change.

14. The other area in which, according to DBS’s ‘barring decision summary’ document, it had definite concerns, was “callousness / lack of empathy”; the following “rationale” is given for DBS’s concern under this head: A number of incidents have been evidenced of [AB] displaying a lack of empathy for the service users in her care. It appears she refused to reposition service users to protect their skin integrity, commenting that not doing so for one day would not kill them. It appears she transferred a service user through the home in a state of undress. It appears she failed to follow the Epilepsy Support Guidelines for a service user she knew was prone to seizures. A concern is raised that [AB] appears not to consider the harm her neglectful actions could have on the service users in her care. Instead it appears she imposed her own perspective of what their needs would be. Should she continue to demonstrate a lack of consideration for service users rights and needs in future she would pose a risk of physical and emotional harm. Post reps: It is acknowledged that [AB] has submitted character references from 6 people who state that are ex colleagues or service users. These attest to their view that she was a kind and reliable carer. However there is no evidence that the referees are aware of her disciplinary issues at [the nursing home] or [the charity supporting people with learning disabilities]. [AB] states she "has been in caring roles for 40 years and is dedicated to the well-being of those she cared for", it is of concern that in her reps she has not expressed any concern for the service users involved in the incidents which led to allegations against her.

15. The DBS document expresses “some concern” under the “irresponsible and reckless” head, due to AB failing to appropriately safeguard the service user who was having a seizure, when she “neglected to summon help”. Did DBS make a mistake in a finding of fact on which its decisions were based?

16. Our task in this appeal is confined to determining whether DBS made a mistake in a finding of fact on which its decisions were based. The law is framed in such a way that we cannot make any determination as regards whether DBS’s decisions to include AB in the barred lists were appropriate.

17. With that in mind, we now go through DBS’s key factual findings one by one (with the factual finding in question set out it bold italics at the start of the relevant discussion), review the evidence before us (both documentary in the bundle, and the oral evidence of AB at the hearing), and explain our conclusions as to whether any of DBS’s factual findings was mistaken. DBS’s finding that on 25 December 2022 whilst employed as a support worker at a nursing home, AB refused to reposition service users who were in need of pressure sore relief

18. AB, consistent with her case as understood at the time of the permission decision, maintained in oral evidence that the reason she did not want the service users to reposition on to mats, was that this required another service user (“PG”, as referred to in IP’s 25 December 2022 statement on page 72 of the bundle) to be “pinned” to the table (otherwise, that other service user would be of danger to the service users on their mats); AB maintained that she wanted to reposition the service users to their beds, instead; she maintained that she was a whistleblower in relation to the issue of “pinning” the other service user to the table.

19. In cross examination, AB accepted that her actions here involved her arguing with, and refusing to follow the instructions of, the registered nurse at the nursing home (MM); rather than repositioning the service users on mats in the communal area, AB wanted to take them to their respective beds, where they slept for the night, and monitor them remotely from there; AB also accepted that her conduct was at least in part because it was Christmas day (and so normal procedures could, in her opinion, be more relaxed).

20. As to the documentary evidence: a. MM’s account (investigation meeting of 23 February 2023) included that AB had said ‘oh come on it’s Christmas’ (page 64 of the bundle); b. IP’s account, dated 25 December 2022 (page 72 of the bundle), records AB as saying she “will not do that on Christmas day and WHY on Christmas day”; c. RP’s account, per her email of 6 January 2023 (page 97 of the bundle), includes that AB was shouting, saying “we aren’t doing physio today as it’s Christmas Day”; d. AB herself is recorded as saying at the investigation meeting on 10 March 2023 (page 54 of the bundle): “You know you should make Christmas day a special day, but it wasn’t it was the same day, everyone had to still lay on the mats. Being Christmas day, just 1 day a year won’t kill them not to do it. ….”.

21. The evidence is clear that this incident involved AB refusing the instructions of the registered nurse at the nursing home where she was working, when the purpose of those instructions was to provide pressure sore relief for vulnerable adults; as to AB’s motivations for acting as she did, we do not accept her evidence that the main motivation for her conduct was concern for one service user, PG, who would need to be “pinned” to stop him possibly causing harm to the others when they were lying on mats (per the nurse’s instructions); whilst we accept this was part of AB’s motivation, her main motivation, on our weighing up of the evidence, was that she did not think the nurse’s instruction (to lay the service users on mats) was valid, on a one-off basis, because it was Christmas Day. It follows, in our view, that DBS did not make a mistake in finding that AB refused to reposition service users who were in need of pressure sore relief; nor was it a material mistake for DBS to have omitted making findings about AB’s motivations at the time as, even if it had made such findings, they would not have changed the outcome: AB’s main motivation (to make an exception for it being Christmas Day) was not one that would have caused DBS to change its view as to the safeguarding risk posed by AB; and, even to the extent that AB was motivated by concern about “pinning” PG, this was further evidence of AB (in the words of DBS’s ‘barring decision summary’, quoted at paragraph 13 above) “imposing her own perspective and methods of treatment of service users”; in other words, making a further factual finding about that element of AB’s motivation, would not have changed DBS’s decision. DBS’s finding that on 8 February 2023 whilst employed at the nursing home, AB failed to preserve the dignity of service user SA by transporting him through the home in a state of undress

22. AB’s oral evidence was that she brought service user SA, in a wheelchair, downstairs in the lift, to use the shower downstairs, as he was “soaking wet” (and the shower upstairs, where SA slept, was broken); her evidence was that SA had been covered with a towel, but SA had thrown it off; thus AB’s account was somewhat different from that understood at the time of the permission decision (that SA had come downstairs on his own, such that the situation (of the service being undressed in an open area) was not one of AB’s choosing, and AB was trying to mitigate it). AB’s oral evidence was in this respect more in line with the documentary evidence: the investigation meeting notes of 23 February 2023 also indicated that AB had taken SA downstairs (page 44 of the bundle).

23. In cross examination, AB accepted that SA had no top on during this incident.

24. As for the documentary evidence as to what SA was wearing: a. an email from MM (the registered nurse at the nursing home) of 8 February 2023 (page 62 of the bundle) stated that SA was “undressed, uncovered, only with the pad on”. MM is recorded as saying the same at the 23 February 2023 investigation meeting (page 64 of the bundle); b. TM, another eyewitness, is recorded as saying in the investigation meeting on 23 February 2023 that SA was “completely uncovered on his chest”; she could not remember about his legs (pages 69 and 71 of the bundle).

25. It is also evident from the documentary evidence (pages 44-45 and 62-64 of the bundle) that, during the course of this incident, MM confronted AB and told her to cover up the service user, and that AB responded in a dismissive manner, telling MM to “go away”.

26. On our weighing up of the evidence, this incident involved AB bringing service user SA downstairs, to a relatively public area within the home, wearing only his pad and with a towel draped over him, which he threw off in the course of the incident (we prefer the documentary evidence as to what SA was wearing, given that AB’s account of this incident was inconsistent in some of the details). It is also clear that AB refused MM’s instruction to cover SA up. It follows, in our view, that there was no mistake in DBS finding that a. SA was in a state of undress; and b. AB was transporting SA (in his wheelchair) in a relatively public part of the home in that state of undress; whether in so doing AB “failed to preserve SA’s dignity” is more of a value judgement than a finding of fact, as such – however, we find it is a view DBS was entitled to take (i.e. there was no legal error in it doing so), on the facts as found. DBS’s finding that on 22 February 2023 whilst employed at the nursing home, AB failed to identify that a service user was experiencing a seizure as she had failed to follow the epilepsy support guidelines

27. AB, consistent with her case as understood at the time of the permission decision, maintained in oral evidence that she was the only member of staff in the lounge at the time, with seven service users (the other care worker had gone into the kitchen); there should have been two staff there; and that is why she did not notice the seizure happening, which she says was “quick”.

28. In cross examination, AB said she positioned herself so that she could see the service user in question, but “through” wheelchairs that were in the way.

29. Turning to the documentary evidence: a. in the investigation meeting on 10 March 2023, AB is recorded as saying (pages 57-58 of the bundle) that she could not see the service user in question because there were two wheelchairs in the way; AB felt she could not reposition herself because of the positions of the other service users in the lounge; AB thought her colleague had gone to the next lounge and was gone for “seconds”; when her colleague returned, the colleague observed that the service user was having a seizure; and that AB then said to her colleague that she was sorry she did not see that because she (AB) was there on her own; b. the ‘support guideline’ for the service user in question, in the area of epilepsy, was in the bundle at pages 127-128. It includes “support during a seizure” (points 15 to 25 in the document), including maters such as ensuring the airway is clear, loosening tight clothing, ensuring the environment is safe, informing the nurse on duty at the onset of the seizure, and reassuring the service user throughout the length of the seizure; c. AJ, the colleague of AB’s in question, is recorded as saying in the investigation meeting of 1 March 2023 that she saw the service user in question “head bowing down chin is on the chair” (page 86 of the bundle); she said to AB that she thought the service user was having a seizure; AB replied that she wasn’t; AJ went to the service user, whose eyes were in a “fixed stare”, and lifted her head back for a minute while she was in seizure.

30. On our weighing up of the evidence, this incident involved AB not noticing that one of the seven service users in the lounge with her was having a seizure; whereas her colleague noticed it as soon as she came back into the lounge, and initiated the steps set out in the service user’s ‘support guideline’ for epilepsy. I t follows, i n our view, that DBS did not make a mistake in finding that AB failed to identify that a service user was experiencing a seizure and therefore failed to follow the service user’s epilepsy ‘support guideline’. We have considered whether DBS made a mistake by not including the facts that AB was in the lounge with seven service users, and that the seizure was relatively short-lived; however, the fact that AB’s colleague readily identified that the seizure was going on, when she re-entered the lounge, indicates to us that these further facts would not have changed the outcome, and so were not “material” to DBS’s decision: in other words, they do not mitigate the core finding that AB failed to identify that a service user in her care was having an epileptic seizure. DBS’s finding that whilst employed at the nursing home, AB deliberately and repeatedly called a service user by the wrong name in the presence of the service user

31. In her oral evidence, AB said that she used to call the service user in question “our princess” (rather than her name, _eni); AB maintained, consistent with her case as understood at the time of the permission decision, that she had a particularly good relationship with this service user.

32. As to the documentary evidence: a. RG’s email of 6 January 2023 (to the nursing home) (page 93 of the bundle), as well as her interview on 28 February 2023, records that, earlier on the day of RG’s email, AB kept calling the service user in question “_emi”, and that AB did this all the time; and when RG corrected her, AB said that the service user in question “responds to anything – insinuating [the service user] responds to anything due to her learning disability”; b. the investigation interview with AB on 10 March 2023 records AB as admitting that she was always pronouncing the service user in question’s name wrong (page 59 of the bundle).

33. The evidence seems to us clear that AB regularly called the service user, in her presence, “_emi”, when her name was actually “_eni”; the only real question (as to whether DBS’s factual finding was mistaken) is whether this conduct was “deliberate” on AB’s part; we prefer the evidence indicating that it was deliberate, as we were not persuaded that AB was not reasonably able to pronounce “_eni” correctly, if she put her mind to it. A further question is therefore whether DBS made a mistake in not finding, in addition, that AB was fond of this service user and generally got along well with her. We answer that question in the negative: we do not think it would have changed the outcome, had DBS found those additional facts, as the fact of AB refusing to adhere to standard practice in relation to vulnerable persons (by taking care to use their correct names), and doing so in the face of colleagues asking her to change her conduct, only reinforces DBS’s rationale for barring, as set out in the quotation from the ‘barring decision document’ in paragraph 13 above. DBS’s finding that whilst employed at the nursing home, AB frequently exhibited hostility and unprofessional conduct towards a number of her colleagues

34. AB, consistent with her case as understood at the time of the permission decision, maintained in oral evidence that this finding was not fair and accurate and, in particular, she denied any racism.

35. In cross examination, AB was questioned about a. her “snappy” response to MM, the registered nurse, in the incident involving the service user in the state of undress (“snappy” was the word AB herself used (for her response to MM) in the investigation interview on 10 March 2023 (in reaction to MM’s alleged rudeness to her) – page 45 of the bundle); b. AB’s subsequent apology to MM (page 47); c. AB’s tendency to shout; as she is recorded (at page 48 of the bundle) as saying in the 10 March 2023 investigation meeting I am calm, I put 110% in I will do anything for these guys. If I need to shout, I will shout. If I need to raise a concern, I will. d. in response to being asked whether it was appropriate to shout, AB being recorded (at page 49) as saying: No. I am a very passionate and emotional person. I will treat these guys like they are my life.

36. The documentary evidence included: a. AB reflecting at the investigation meeting on 10 March 2023 that she had “gone over the line sometimes” in her dealings with colleagues (page 53 of the bundle); b. TM observing at the investigation meeting on 23 February 2023 that AB talked to people “not very nicely”; she was “bossy” but did not do a lot; she tended to clash with most staff (page 71); c. IP observing at the interview on 28 February 2023 that, in the Christmas Day 2022 incident, AB “was really shouting and very rude with [MM, the registered nurse at the nursing home]” (page 73 of the bundle); and that MM had reacted to the incident where the service user had an epileptic seizure by telling IP that AB was “always shouting at her and disrespecting her all the time” (page 74); d. AJ observing at the investigation meeting on 1 March 2023 that AB was always arguing with people with whom she did not agree; that if you did not know how to reply to AB, she would “bully” you and “shout” at you what to do all the time (page 85); e. AD observing in the interview on 28 February 2023 that AB was “always shouting” and “always very rude” with other staff (page 88); f. RG saying in the interview on 28 February 2023 that she had witnessed AB shouting at staff and nurses and being rude (page 94).

37. AB’s arguments on this evidence included that: a. there was a coordinated effort to tarnish her character rather than genuine concerns about her conduct; AB cited the fact that IP had not heard any negative feedback about AB before the emergence of these rumours as pointing towards a calculated attempt to discredit her; and two sets of accusations shared identical content in emails sent concurrently, supporting the idea of a planned attack on her reputation; and b. there were tensions between her and MM.

38. On the first of these points, AB appears to be referring to IP saying in a 28 February 2023 interview (page 75 of the bundle), in response to being asked if the kind of incident that occurred on Christmas Day 2022 had happened before I haven’t witnessed this before. I don’t have incidents with her, she is very nice to me, I don’t know why. We have a lot of verbal complaints from staff but no-one wants to put it in writing. When then asked if this had been addressed in AB’s supervisions, IP responded: No, she hasn’t had a supervision for a while now and at the time I didn’t know there was issues. It’s only now since you started this investigation, staff are talking and I hear a lot of complaints now. … When then asked why she thought staff did not want to report issues with AB, IP responded: I think they are scared of her. They don’t want to be interviewed, they are scared to come and talk to you about this now.

39. In our view, the documentary evidence is reliable and supportive of DBS’s finding that AB frequently exhibited hostility and unprofessional conduct towards a number of her colleagues: we have detailed evidence of two fairly fiery clashes with MM (the Christmas Day incident and the service user in the state of undress incident); AB’s own evidence is that she sometimes shouted and “crossed the line” with colleagues, and that she and MM on occasion clashed seriously; we are not persuaded of a “coordinated effort” (in effect, a conspiracy) against AB – in particular, the documentary evidence from IP, when presented in context as we have done above, does not support the existence of such a conspiracy. DBS’s finding that between 22 January 2024 and 1 March 2024 whilst employed as a support worker for a charity supporting people with learning disabilities, AB failed to support service users in her care in line with the service users’ wishes and established procedures

40. AB, consistent with her case as understood at the time of the permission decision, maintained in oral evidence that she had not been aggressive with a particular service user during an incident in a greeting card shop (consistent with her account in the documentary evidence, AB maintained that the service user had in fact shouted at her, not the other way round).

41. Turning to the documentary evidence: a. the termination letter from the charity (page 213 of the bundle) cited (in relation to AB) i. failing to follow routine when supporting a service user to take their medication and the handling of medication; this was “clearly stated” in the support plan that AB had read and signed; ii. failing to report incidents correctly in line with the charity’s policy and procedures; and iii. performance concerns when supporting service users; b. the charity’s “areas of concern” (in its ‘probation hearing workbook’) (page 218 of the bundle) included that i. AB said that she put a particular service user’s medication in the “pot” and then gave this to the service user; contrary to what was said by the service user’s parent, AB did not put the medication in the palm of her hand and stand over the service user (as the service user would push AB away); ii. with regard to “suspected abuse” (being the incident in the greeting card shop), AB denied pushing the service user and shouting at her; the service user had shouted at a little boy (in the greeting card shop); AB had said to the service user – ‘let’s get out of the shop and calm down and go somewhere else and then go back to the card shop later’. The service user then started to shout at AB. The incident was not documented, due to oversight by AB.

42. AB was cross examined about incidents involving her putting a particular service user’s medication in a “pot”. Her evidence was that staff at the charity had always put this service user’s medication on a plate, and that the service user’s father had wanted AB to continue doing this; but AB had, instead, put the medications in a pot, which, AB said, was the correct thing to do.

43. On our weighing up of the evidence, we find it established that (i) AB failed to report the “greeting card shop incident” in line with the charity’s requirements; it is clear that the incident was an upsetting one for the service user, a vulnerable adult with a learning disability; and (ii) AB changed the way the charity had been administering medication to another service user, based on her own view of what was right, so departing from what the service user (and their parent) was used to and preferred. In our view, this is sufficient (without our needing to determine factually whether AB shouted at the service user in greeting card shop, or the other way round) to show that DBS did not make a mistake in finding that AB failed to support service users in her care in line with the service users’ wishes and established procedures. Conclusion on mistake of fact

44. It follows that, in our view, DBS did not make any mistake in a finding of fact on which its decisions were based. The position as regards mistake on a point of law

45. Although the permission decision was not expressly limited to mistake by DBS in findings on fact on which its decisions were based, the “Reasons” section of that decision referred only to such mistakes (and decided that they were arguable), and did not refer to any mistakes by DBS on points of law.

46. The question of whether DBS made a mistake on a point of law surfaced briefly in the hearing - AB was not legally represented (and so, unsurprisingly, was not sensitive to the ‘factual mistake vs legal mistake’ distinction), and some of her arguments suggested that DBS’s decisions could be mistaken in point of law by reason of being disproportionate (for example, AB’s argument that she had been in care work for many years without safeguarding issues arising, and her reference to character references that had been provided (all by people uninvolved with the particular incidents on which findings of fact had been made)); DBS submitted that such arguments should not be entertained, as they fell outside the scope of the permitted grounds of appeal; Judge Citron questioned that submission, noting that the permission decision, on its face, was not limited.

47. More than three weeks after the hearing, on 20 June 2025, the Upper Tribunal received, from DBS, written submissions of counsel submitting that, because the reasons given in the permission decision were confined to arguable mistakes in findings of fact by DBS, it was not open to AB to argue that DBS had made mistakes on points of law. The Upper Tribunal had not invited the making of these post-hearing written submissions, and so DBS applied for permission to make them, should that be necessary.

48. Whilst we are inclined to accept, principally on the authority of the Court of Appeal’s decision in Sarkar v SSHD [2014] EWCA Civ 195 at [16-17], DBS’s submission that the grounds of appeal in this case were, by reason of the wording of the permission decision, confined to mistakes by DBS in findings of fact on which its decisions were based, we do not think it fair and just, in all the circumstances, to prolong these proceedings by inviting AB to make written submissions in response to DBS’s, for the simple reason that, even if AB were, contrary to DBS’s submissions, entitled to pursue arguments to the effect that DBS’s decisions were disproportionate, any such arguments would, in our view, fail.

49. To explain the two points we have just made: a. The relevant parts of Sarkar v SSHD (with particularly relevant passages emboldened by us):

16. [Counsel for the appellant] sought to rely on the Upper Tribunal’s grant of permission to appeal in general terms as entitling the appellants to argue all their grounds of appeal … . He accepted that the Upper Tribunal has power to limit the grounds on which it grants permission appeal (as the Tribunal Procedure (Upper Tribunal) Rules 2008 clearly imply), but he submitted that in this case the operative sentence granting permission to appeal was entirely unqualified and could not properly be limited by what [the Upper Tribunal Judge] said in the reasons he gave for his decision . In my view, however, that is not how an order of this kind is to be read. In Sans Souci Ltd v VRL Services Ltd [2012] UKPC 6 … the Privy Council held that an order of the Jamaican Court of Appeal remitting an award to arbitrators “to determine the issue of damages only” was to be read together with the court’s reasons for its decision, which were “an overt and authoritative statement of the circumstances which it regarded as relevant.” (per Lord Sumption, paragraph 13). As a result, the apparently unqualified remission for the determination of damages in that case was to be understood as limited to the specific issues that had formed the basis of the appeal . It did not give the tribunal jurisdiction to reconsider the issue of damages generally and did not entitle the defendant to raise issues that it had not previously raised. The decision was applied in this jurisdiction in JSC BTA Bank v Ablyazov [2013] EWCA Civ 928 .

17. In the present case the apparently unqualified grant of permission to appeal must be read in the context of the reasons which [the Upper Tribunal Judge] gave for his decision, which make it quite clear that he intended to limit it to the ground that he had identified … . b. as to why, in our view, an argument that DBS’s decisions were disproportionate, were such argument permitted, would fail - the limb of the test of proportionality most relevant to the analysis here is the one which asks whether, balancing the severity of the measure’s effect on AB’s rights against the importance of the objective of the measure (safeguarding vulnerable adults and children), to the extent the measure will contribute to its achievement, the former outweighs the latter (this is “step four” of the test as articulated by Lord Reed in Bank Mellat v HM Treasury (No 2) [2014] AC 700 at [74]). Here, the effect of the measure is to stop AB working with vulnerable adults and children. We can see this will have a significant negative impact on AB, who has spent many years working in the care sector. On the other side is the importance of safeguarding vulnerable groups, to the extent barring AB will contribute to it. DBS’s judgement, as the expert and regulating body in safeguarding, that the balance favours barring in this case, is to be accorded appropriate weight. It seems to us that the combination of DBS’s factual findings, in which we have found no material mistake, and its rationale as to why AB poses safeguarding risk (see paragraph 13 and 14 above), which we find to be coherent, mean that the effect on AB is outweighed by the contribution to safeguarding vulnerable groups achieved by including AB in the barred lists. Had it been open to us to consider the point, we would not therefore have found that DBS’s decisions were mistaken on a point of law by reason of being disproportionate. Disposal

50. The permitted grounds of appeal have not been made out. DBS’s decisions are accordingly confirmed. Zachary Citron Judge of the Upper Tribunal Dr Elizabeth Stuart-Cole Elizabeth Bainbridge Members of the Upper Tribunal Authorised by the Judge for issue on 14 July 2025