Success in DBS appeal for carer with autism who was not given ‘effective’ opportunity to respond.

Laura Herbert acted for a carer (“LB”) who successfully appealed her inclusion on the Disclosure and Barring Service (“DBS”) barred lists.

LB had been accused by her former employer of causing emotional harm to service users, including through allegations of verbal abuse, staring, damaging items in service users’ homes, and engaging in inappropriate relationships—specifically, giving an elderly service user a hug and a kiss on the cheek during the COVID-19 restrictions.

Prior to these allegations arising, LB had made complaints to the Care Quality Commission (“CQC”) regarding the care provider. Following inspection, the provider was rated as “Requires Improvement.” The allegations were made several months after LB had left her employment and only after she had raised her concerns with the CQC.

The employer conducted an internal investigation and referred the matter to the DBS.

DBS decision

LB, who was unrepresented at the time, made detailed representations to the DBS. These included:

• Evidence that references submitted by her employer were fabricated, supported by statements from the purported authors denying they had provided them
• A challenge to the allegations, supported by a statement from a fellow care worker asserting that the complaints were malicious
• Text message evidence demonstrating a breakdown in the relationship between LB and the service users
• Medical evidence of her autism, which could explain behaviours such as inadvertent staring

Despite this, the DBS found all allegations proven and barred LB from working with both children and adults. This had a profound impact, as LB was at the time training to become a nurse.

In reaching its decision, the DBS made adverse findings as to LB’s credibility, relying in part on the fact that her supporting witness statements were unsigned and did not contain statements of truth.

The appeal

Laura was instructed to pursue an appeal to the Upper Tribunal, arguing that there were errors of fact and law in the DBS’s findings, and procedural unfairness, in particular the failure to give LB a proper opportunity to remedy deficiencies in her evidence before it was disregarded.

Permission to appeal was granted. At the oral hearing, both LB and her colleague gave live evidence.

Upper Tribunal decision

The Upper Tribunal allowed the appeal, accepting the evidence of LB and her colleague and found that the credibility of the care home managers was significantly undermined by the apparent fabrication of references. The Tribunal also accepted that LB’s behaviour, including staring, could be explained by her autism and hearing disability and referred the matter back to the DBS to determine whether it is ‘appropriate to bar the appellant for staring.’

Procedural fairness: an “effective” opportunity to respond

Of wider significance, the Upper Tribunal addressed the procedural fairness of the DBS process.

It held that the statutory requirement to provide an opportunity to make representations under the Safeguarding Vulnerable Groups Act 2006 must amount to an “effective” opportunity.

The Tribunal found that the DBS had acted unfairly by rejecting LB’s evidence on formal grounds (lack of signature and contact details) without giving her the opportunity to correct those deficiencies. Had it done so, the assessment of credibility may have been materially different—particularly in light of the concerns regarding fabricated evidence from the employer.

The Tribunal rejected the DBS’s arguments that the 2006 Act required only ‘an opportunity’ to response, and that such a step would amount to giving an appellant a “second bite of the cherry”, emphasising that procedural fairness may require the decision-maker to invite clarification or completion of evidence where necessary.

Outcome

The appeal was allowed on the basis of errors of fact and law, together with procedural unfairness. LB’s inclusion on the barred lists has been removed pending reconsideration by the DBS of the question of appropriateness.

Laura was instructed by Latoya Atkinson of Richard Nelson LLP.

Click here for the judgment.