HET v The Disclosure and Barring Service

The decision of the Upper Tribunal is to allow the appeal DIRECTIONS

1. The appellant is to be removed from barred both the Children’s and Adults’ Barred lists. REASONS FOR DECISION Introduction

1. This is the Appellant’s appeal against the Disclosure and Barring Service’s (DBS from now on) final decision, dated 3 June 2023 to include her on both the Children and Adults’ Barred Lists under Schedule 3 to the The decision was based on findings that, between August 2022 and July 2023, she failed to maintain appropriate boundaries with a 16-year-old looked-after child (“MB”). Safeguarding Vulnerable Groups Act 2006 (‘ the 2006 Act ’).

2. On 14 August 2024 the appellant made an application for permission to appeal. She was granted permission to appeal on 29 November 2024 [210-217]. In a detailed and thorough decision UTJ Butler set out the grounds on which it was arguable that the DBS had made a mistake of fact as there was a real prospect that the appellant’s own oral evidence and the evidence which she had submitted to support her account would be believed. The appellant had provided in the course of the DBS investigation extremely detailed representations including a statement from herself, supporting evidence and character references which dealt with all the allegations against her [ 73-149] and there were matters that it was arguable the DBS had not engaged with in their decision making.

3. The appeal was opposed by the Respondent.

4. There is no dispute that the appellant met the criteria for regulated activity under the relevant provisions of the Safeguarding Vulnerable Groups Act 2006 (‘the SVGA’) by reason of her application for roles as a support worker with adults and children.

5. We held an in-person hearing at the Parsonage, Manchester on 30 October 2025. The appellant represented herself and was accompanied by her father. We heard detailed oral evidence on oath from her. We found the appellant to be a wholly credible witness; she gave her evidence clearly and calmly despite the distressing nature of the circumstances with which she was dealing. She answered all our questions, and those of Mr Ryan for the DBS, in a straightforward, honest way, accepting where she may have been at fault in some way but at all times doing her best to assist the Tribunal to understand what had happened. In my 25 years as a judge I have rarely come across such an impressive and obviously credible witness or a litigant in person who so ably advocates for themselves. We had no hesitation in accepting her evidence in its entirety

6. We had an electronic bundle of documents and references in [ ] are to the page number in the bundle. We had submissions and a bundle of authorities from the Respondent. The Appellant had a hard copy of both. The appellant relied on her written submissions [73-149] and took us through the main points and evidence as her evidence in chief in a focussed and helpful way.

7. This was a private hearing. We refer to the Appellant as “HET ” or “the Appellant” throughout in order to preserve her privacy and anonymity. For that same reason, we make the rule 14 Order included at the head of this decision and will refer to other individuals and the employer by initials only. Factual background

8. HET started her role as a Children’s Residential Support Worker with MI ( the care provider company) in August 2022. At the time she was aged 23 and had no previous experience of working as a carer although she had worked with young people in previous roles. She was employed to work in one of two homes run by MI initially looking after 2 young people , and then later for 3 cared for young people aged between 11 and 16. She had no proper training for the role receiving only instruction in restraint techniques.

9. HET worked long shifts, sleeping in and sometimes there would only be one other support worker on shift with her. She spent a lot of time with MB, the young cared for person around whom the allegations centred and built a strong relationship with her.

10. In June 2023 HET resigned from MI and left her role. Her reasons were all because of issues in her personal life, she was in a coercive and controlling relationship, was working in two other jobs and had no car because of an accident so was struggling to get to work. HET also found the role emotionally demanding and had found it hard to switch off. She gave notice but did not initially tell the young people with whom she worked. When she did tell MB that she was leaving MB became very upset and accused HET of giving up on her. MB then tried to spend as much of the remaining time with HET as possible.

11. On 26 July 2023 MB made various allegations about HET’s behaviour towards her whilst she had worked for MI and subsequently. She alleged that HET had shared personal information; encouraged her to send fake profile messages: borrowed money; discussed drug taking; taken MB to her house and to a party; bought her vapes/alcohol with MB’s money and maintained contact after employment.

12. The sequence of events which led to those allegations being made were that HET was working with a former colleague from the residential home, SW. SW reported to HET that she had received social media messages from someone called ‘Amanda Taylor’ which made allegations about her personal life and which she suspected came from a fake profile. HET subsequently recalled that MB had referred to the name Amanda Taylor in conversation and also said that she was talking to someone with SW’s first name. She told SW that she thought there was a possibility that the messages had come from MB. On 25 July 2023 SW reported that to the management at MI who then asked MB about the allegation. MI reported the matter to the Local Authority Designated Officer (LADO), Ofsted and MB’s social worker.

13. It was in the meeting on 26 th July to take MB’s statement that she made various allegations against HET [50-51]. Another worker at the home, LD, was interviewed on the same day [52], and said that MB had said that “(HET) had snitched on me, well I’m going to snitch on her”. In LD’s statement he recalled MB saying that HET had bought drugs whilst on shift, had been under the influence whilst driving the young people and had asked MB for a threesome with her partner.

14. MI also spoke to MB’s mother, TB, on 26 July who said that HET had asked for money from TB to get MB vapes and she had then put money into HET’s bank account.[53] In a further discussion with MB that day she alleged that HET was in trouble with drugs, let her smoke in the car and took her drinking; buying alcohol in Wetherspoons with MB’s money.

15. It was evident from screenshots of social media/text messages that TB disclosed that there had been some contact on 28 July between HET and TB [54-56]. This contact was prompted because MB had very recently contacted HET on social media and HET had blocked her. The texts appeared to start with a message at 15:40 [56] from HET to TB asking if there was a way she could stay in touch with MB. HET explained that MB had attempted to contact her on social media recently and she wanted to check if TB was happy with her being in contact and if they could contact each other through TB until MB was an adult. In a further message [54] HET explained that she had blocked MB on social media and was happy to go through her social worker. And then in a message at 15:43 [55] asked TB to pass on her love to MB and wanted her to know that she had not forgotten her. There was no response from MB’s mother.

16. On the same day 28 July MB reported to MI that HET had been trying to contact her [57]. She was praised by the member of staff for having understood the value of telling the truth.

17. MI contacted HET on 26 July and asked her to attend an investigatory meeting. She had by this stage left their employment and was in a new job. It was not held with HET until 23 August 2023 [58-61]. No copy of the email calling HET to the meeting was provided by MI but we accept that HET was given no advance notice of the allegations against her and the details were put to her in the meeting by reading out the statements taken from MB, LD and TB. There is reference in the investigation notes to the Social Worker having taken a signed statement from MB for LADO but that has not been produced for either the DBS or these proceedings. However, some of the allegations put to HET in the investigation meeting are not in the statements before the DBS or the Tribunal. As they do not appear to have been considered by the DBS we make no findings in relation to them other than to note that the investigation process was far from satisfactory. The meeting noted that HET had to have time out to compose herself at the start as she was overwhelmed by the allegations.

18. HET denied the allegations against her and offered explanations where she could. She explained that MB had tried to contact her on social media and she had blocked her. She accepted that she had contacted TB, could not recall how she had her number but accepted that she realised it had been the wrong thing to do. HET also initially denied having taken MB to Wetherspoons and bought herself and MB alcohol. When it was pointed out that there was a record in the work activity log [47] 9 entry for 26.2.23 that they had gone to Wetherspoons for breakfast she acknowledged her mistaken recollection but reiterated that she had not bought alcohol for herself or MB. HET also admitted that she had taken money from TB on ‘a couple of occasions’ for a MacDonalds and said her account would show money going in and then out and that all the money had been spent on MB. She denied that she had used it to buy vapes for MB. She denied having had any money from MB or owing her £40.

19. On 4 September 2023 a LADO meeting was held which was attended by the LADO, the Regional Manager and Deputy Manager from MI and MB’s social worker (KW). They reviewed the allegations and the investigatory meeting and accepted MB’s evidence on the balance of probabilities even though she was known to ‘make things up’, ’ not be truthful’ and ‘stretch the truth’. They concluded there had been a serious breach of professional boundaries and the suitability threshold was met. It was agreed a referral to DBS should be made.

20. On 23 September 2023 the DBS sent an initial letter to HET [30-32] saying they had received information from MI about allegations that she had financially manipulated and bought alcohol for a young person and had then resigned from her role. They indicated that they would be investigating.

21. On 16 March 2024 the DBS sent a minded to bar letter [34-39] informing HET they thought it may be appropriate to include her on both the Children’s and Adults’ Barred Lists. The annex of documents attached included the referral form, a document referred to as a chronology which was in fact the work log, the statements, the investigatory meeting notes and the minutes of the LADO meeting. The allegations on which they relied were : “Between August 2022 and 28 July 2023, you failed to maintain appropriate boundaries with [a] 16-year-old looked after child [MB], which included: • disclosing personal information about other looked after children; • encouraging her to message another care worker from a fake profile, alleging she was having an affair; • borrowing £40 from her and failing to repay it; • engaged in discussions about drugs; • taking her to a party at a pub where drugs were being taken; • purchasing vapes and alcohol for her; and • maintaining contact with her after you left your employment.

22. HET provided extremely detailed representations and evidence in response to the minded to bar letter – [73-91] and very detailed statements responding to MB’s statement [[92-118]; to LD’s statement [119-121] and to TB’s statement [122]; to the text messages [124]; the LADO meeting [125-135]. She also provided 10 character references from people with whom she had worked closely [136-147] including from HD [138] who had worked with her at MI. She also included [123] proof of a payment from TB to HET’s account and a payment to MacDonalds both on 22.5.23.

23. DBS final decision letter was sent on 3 June 2024 [9- 17] and stated that it was considered appropriate and proportionate to include HET in the Children’s and Adults’ Barred Lists. It stated that the DBS were satisfied that allegations set out above had occurred. The Barring Decision Summary (BDS) [166-206] accepted that MB’s evidence was credible and that MI’s investigation was ‘fair and balanced’. It also accepted that there was corroboration from another young person ‘EM’ despite there being no direct evidence from them a before the DBS and found that whilst some of that HET’s evidence was plausible she was not credible. The decision was based wholly on which evidence the DBS found to be credible.

24. On 14 August 2024 HET applied for permission to appeal to the Upper Tribunal> Permission was granted 209-217] by UTJ Butler who set in detail [paras 8-13] areas where the DBS’ analysis and reasoning lacked substance or did not appear to have engaged with the evidence from HET and concluded that it was realistically arguable that DBS may have made mistakes of fact and errors of law

25. The Tribunal heard detailed oral evidence from HET which amplified some of the information in her representations and focused on the specifics of the allegations against her. As we set out at the outset of our decision, we found her to be a wholly credible witness and accepted her evidence in its entirety. Given that this is a case which turns on credibility we do not think it necessary to record all her evidence in detail but simply to set out the following relevant findings on the specific allegations.

26. MB alleged that HET had told her about two of the cared for young people at the second home operated by MI. There was little detail about what was alleged to have been disclosed. HET accepted that she had on occasion done shifts at the other home but denied disclosing inappropriate information. She explained that the young people from both homes shared activities and there was considerable overlap of staff because of staff shortages. There was no evidence which corroborated MB’s allegation and none to contradict HET’s account.

27. HET denied having encouraged MB to set up a fake profile, the only corroboration for HET’s alleged involvement apparently came from EM [50] another cared for young person, but there was no direct statement from them and they were known to have a grudge against HET [52]. HET maintained that she had no knowledge of the fake profile and only recalled MB having laughed about messaging someone with the same first name as SW and asking her about someone called ‘Amanda Taylor’ when SW discussed with her the messages she had received from the fake account. She told the Tribunal that MB had free access to a mobile ‘phone at this time. HET was friends with SW and had got the job she moved to when she left MI through the connection.

28. There was no evidence to corroborate MB’s allegation that HET had borrowed money from her and owed her £40. HET told us that MB had confessed to making up allegations about a previous carer. HET denied borrowing money and explained that if she had needed cash or a loan she would have approached her family who were very supportive of her. She was also adamant that she did not use drugs and would not have told MB the money was to buy drugs. She did accept that on one occasion in May 2023 TB had transferred money to her and she had bought MB a MacDonalds as shown by the extract from her bank account [123] as a reward for having done well in her GCSEs. She accepted that, on reflection, it was inappropriate for her to have accepted the bank transfer and she should have disclosed it at the time.

29. HET accepted that she may have had a conversation with a work colleague prompted by drug education leaflets they found whilst they were clearing up at work and it was possible that might have been overheard by some of the young people but denied ever having discussed drug taking with MB.

30. HET also denied having taken MB to a party at all explaining that at this point her personal life was difficult as she was in a coercive and controlling relationship, was working in 3 jobs and only went out to work or to do the shopping. She was also without her own vehicle at this time having had a car accident on 4 May 2023 after which her car was out of action. She had not been to any party to celebrate her then partner’s boxing success and in any event the party was not in the place alleged. She was also adamant that she had not been to any event where there was drug taking and would not have taken a young person to such an event. It had been suggested that there was evidence on Facebook which her manager at work had seen which showed her at parties but this was not produced and HET could find nothing on her account which could have been interpreted as support for the allegation.

31. HET denied having purchased vapes or alcohol at any point for MB or herself whilst at work. She said she did not smoke or vape and would have no idea about where to purchase vapes. She had never purchased alcohol either. HET accepted that she had taken to Wetherspoons on 26 February 2023 for breakfast as recorded in the work activity log [47]. She said there were very limited venues for breakfast in the town centre and they had gone there for food. She recalled buying a wrap , a zero coke for MB and a coffee for herself. She explained that she was always asked for ID in pubs because she looks young and they would not have served her with alcohol for MB. She remembered discussing it with SW on her return and was told not to do it again although she had raised it with another more experienced colleague before she had gone and his view was that it was not a problem. HET acknowledged that she had initially denied having gone to Wetherspoons at all when the allegation of buying alcohol was put to her at the investigation meeting. The DBS interpreted that as supporting their view that she was dishonest but it seems to us an understandable lapse given she was ambushed by the allegations, was distressed and it had occurred over 6 months previously.

32. HET accepted that she had been in contact with TB, MB’s mother but not MB. She said that she had blocked MB when MB attempted to contact her on social media and that was confirmed by the messages she sent to TB at the time. She was conscious that MB had been very upset when she left and felt let down by her and explained that when MB tried to contact her she thought it was better to try and arrange contact through her mother or her social worker. She accepted that it was an error of judgment to contact MB’s family and recognised she should have gone through the social worker and reported the contact she had had from MB.

33. HET was a convincing witness and the evidence against her came from a vulnerable young person who was upset that she had left and had a grudge for being ‘snitched’ on as she saw it and who it was accepted often made things up. Some of the allegations against HET were very lurid and extreme and yet they were just discounted rather than either being investigated or reported to the police. The DBS accepted that some of the allegations were not credible but others were. Having had the significant benefit of hearing HET’s evidence in person we accept it as being the more accurate account of what happened. Legal framework

34. Arrangements for the protection of vulnerable adults may be found in the Safeguarding Vulnerable Groups Act 2006 ( the Act ). The role of the DBS is preventative rather than punitive: ( R (SMX) v The Disclosure and Barring Service [2020] EWHC 624 (Admin) ). Inclusion in a barred list is a protective measure that prevents a person engaging in “ regulated activity ” as defined in the Act with vulnerable adults or with children. A decision to bar may be made following a referral to the DBS. The DBS will investigate matters which have been brought to its attention and seek to establish and apply the facts. Where “ relevant conduct ” as defined in the Act is found, the DBS will address the question of whether the protective bar is required. In essence with respect to the ABL, it will consider whether, in its view, it is the case that if a person was to engage in regulated activity with vulnerable adults, that person would pose a potential risk. The DBS makes its decision to include a person in a list under the provisions of Schedule 3 to the Act .

35. Section 4 of the Act deals with rights of appeal. A person has a right of appeal to the Upper Tribunal to include him or her in a list and against a decision on a review not to remove him or her from a list. Section 4(2) of the Act provides that an appeal may be made only on the grounds that the DBS has made a mistake on any point of law or in any finding of fact which it has made and on which the decision was based. Section 4(3) expressly provides that a “ 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(4) provides that an appeal may only be brought with the permission of the Upper Tribunal.

36. Once permission to appeal has been given (as here) the Upper Tribunal’s authority under section 4 of the Act consists potentially of two phases, the mistake phase and, if it turns out there has been a mistake either as to law or to fact, the disposal phase. The mistake phase raises the question of whether or not the Upper Tribunal must confirm the decision under appeal. The answer depends on whether there was a mistake of law or fact, or whether there was not. Since the Act refers to a “ mistake ” and, in effect, identifies the need for there to have been one on the part of the DBS, an appeal cannot succeed unless one has been established. In other words, if the Upper Tribunal cannot identify a mistake it must confirm the decision of the DBS.

37. The scope of the mistake of fact jurisdiction was considered by the Court of Appeal in the recent cases of Kihembo v DBS [2023] EWCA Civ 1547 and in DBS v RI [2024] EWCA Civ 95 . The decision in Kihembo confirmed that PF v DBS remains good law. In RI Males LJ explained that the restrictive approach adopted by the Court of Appeal in JHB should be confined to those cases where the barred person does not give oral evidence at all or gives no evidence relevant to the question of whether the barred person committed the relevant act relied upon. Where the barred person does give oral evidence before the Upper Tribunal: “the evidence before the Upper Tribunal is necessarily different from that which was before the DBS for a paper-based decision. Even if the appellant can do no more than repeat the account which they have already given in written representations, the fact that they submit to cross-examination, which may go well or badly, necessarily means that the Upper Tribunal has to assess the quality of that evidence in a way which did not arise before the DBS

38. The scope of the Upper Tribunal’s jurisdiction under section 4(2) (b) of the 2006 Act was interpreted as follows: “In conferring a right of appeal in the terms of section 4(2) (b), Parliament must therefore have intended that it would be open to a person included on a barred list to contend before the Upper Tribunal that the DBS was mistaken to find that they committed the relevant act – or in other words, to contend that they did not commit the relevant act and that the decision of the DBS that they did was therefore mistaken. On its plain words, the section does not require any more granular mistake to be identified than that” (RI v DBS, per Males LJ at [49]). Further Bean LJ rejected the DBS’s argument that the Upper Tribunal was in effect bound to ignore an appellant’s oral evidence unless it contains something entirely new. He said in RI v DBS at [37] that: “where Parliament has created a tribunal with the power to hear oral evidence it entrusts the tribunal with the task of deciding, by reference to all the oral and written evidence in the case, whether a witness is telling the truth.” Analysis

39. Mr Ryan for the DBS fairly accepted that this case turned on the credibility of the appellant and left it to the panel to make the relevant factual findings. He accepted that the appellant’s evidence, which was largely unchallenged, differed markedly from the account in the papers but noted that she accepted having acted inappropriately by sending the text messages to the young person’s mother and having previously accepted money on one occasion to buy a treat for MB. If we found mistakes of fact he asked us to remit to the DBS

40. HET pointed out that the concerns for the DBS are around risk to children and vulnerable adults and whilst she accepted that she had acted unprofessionally in those two respects both incidents were with another adult for whom she was not responsible. Conclusion

41. As is clear from our findings above we have had no hesitation in accepting the evidence of HET which means that we find that the DBS have made mistakes of fact in relation to all of the findings against her. The only errors which we find HET made were in respect of accepting money from TB, whilst in employment with MI, to buy MB a treat and in contacting TB by text 3 times on 28 July 2023, after she had left MI’s employment, to see if she could maintain contact in some way with MB. Those might be appropriately categorised as crossing a professional boundary and being ill-judged but come nowhere close to the inappropriate behaviour found by the DBS.

42. We appreciate that we have had the significant benefit of hearing oral evidence on oath from HET but even without oral evidence the quality of the investigation, decision making and reasoning by the DBS fell woefully short. They relied on a procedurally unfair ( by employment law standards) and limited investigation by MI, did not appear to properly engage with the comprehensive submissions and evidence from the appellant and came to unsound and unreasoned conclusions in the barring decision. We would hope that they will examine what could be done to improve the rigour with which they approach conflicts in evidence where the appellant, as in this cases has produced comprehensive and compelling submissions and evidence. Disposal

43. So far as disposal of the appeal is concerned, the relevant law is set out in section 4(5) -(7) of the 2006 Act , which provide as follows: (5) Unless the Upper Tribunal finds that has made a mistake of law or fact, it must confirm the decision of DBS . (6) If the Upper Tribunal finds that DBS has made such a mistake it must— (a) direct DBS to remove the person from the list, or (b) remit the matter to DBS for a new decision. (7) If the Upper Tribunal remits a matter to DBS under subsection (6)(b)— (a) the Upper Tribunal may set out any findings of fact which it has made (on which DBS must base its new decision); and (b) the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise.

44. Section 4(5) does not apply, as we have concluded that the DBS’s decision involved relevant mistakes of fact. Thus, this is not a case in which we must confirm the DBS’s decision. Accordingly, the choice for disposal is between either directing the DBS to remove the Appellant from the barred lists or remitting the matter to the DBS for a new decision ( section 4(6) (a) or (b) respectively).

45. In applying section 4(6) , we are bound by the Court of Appeal’s decision in DBS v AB [2021] EWCA 1575:

72. Section 4(6) of the Act … sets out the powers of the Upper Tribunal when it has found an error of law or fact. The Upper Tribunal then has a power to direct removal or remission of the matter back to the DBS. The question is when would it be appropriate to direct removal rather than remitting the matter back to the DBS. The fact that the Upper Tribunal is not intended to consider questions of appropriateness when deciding if there has been an error is, in my judgment, a strong pointer to the fact that the Upper Tribunal should not be deciding that question when deciding on the appropriate disposal under section 4(6) of the Act . Unless it is clear that the only decision that the DBS could lawfully come to is removal, the matter should be remitted to the DBS to consider. If, therefore, there is a question of whether it is appropriate to include a person's name on a barred list, the appropriate action under section 4(6) of the Act would be to remit the matter to the DBS so that it could decide the issue of appropriateness. That is consistent with the statutory scheme which provides for the DBS to determine the appropriateness of inclusion on a barred list but ensures that the Upper Tribunal can check that there has been no error of law or fact in the decision making process.

46. We have concluded that the section 4(6) (a) option of a direction to DBS for the removal of HET’s name from both the Children’s and Adults’ Barred Lists is the appropriate course of action. We have taken into account the Court of Appeal’s guidance above and consider that on the facts as we have found them it is clear that the only decision the DBS could lawfully reach is removal. In short, we are satisfied that no-one could reasonably consider that barring the Appellant was justified in the light of our findings as to the facts. We therefore direct the DBS to remove HET from both barred lists under section 4(6) (a).

47. The appeal succeeds. Judge Fiona Monk Sitting as a Judge of the Upper Tribunal Specialist member Mrs Josephine Heggie Specialist Member Ms Elizabeth Bainbridge Authorised by the Judge for issue on 4 December 2025