RI ceased to be a vulnerable adult’s support worker and her employer subsequently dismissed her for gross misconduct having formed the view following an internal investigation that she had stolen money from the vulnerable adult. The Disclosure and Barring Service (“the DBS”) sent a “minded to bar” letter to RI and she made written representations denying that she had stolen the money. After considering the all of the evidence, the DBS notified RI by letter of its decision to place her on the adults’ barred list pursuant to paragraphs 9 and 11 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. RI appealed to the Upper Tribunal (Administrative Appeals Chamber) under section 4 of the 2006 Act. By section 4(2)(b) an appeal could only be made on the ground that the DBS had made a mistake in any finding of fact by it and on which the decision to bar was based. Following an oral hearing during which she gave evidence and was cross-examined, the Upper Tribunal allowed the appeal and directed that her name be removed from the barred list having concluded on the evidence that RI had not stolen any money from the vulnerable adult, that the DBS’s decision was based solely on its finding of theft and that there was no other conduct by RI capable of justifying her inclusion on the barred list. The DBS appealed, contending inter alia that the Upper Tribunal had erred in law by adopting an impermissible approach to the mistake of fact jurisdiction within section 4(2).
On the appeal—
Held, appeal dismissed. When exercising its mistake of fact jurisdiction under section 4(2) of the 2006 Act the Upper Tribunal was entitled to find that a person’s denial of wrongdoing was credible so that it would be a mistake of fact to find that they committed the impugned act. The Upper Tribunal was entitled to hear oral evidence from the person and assess it against the documentary evidence on which the DBS based its decision to place the person on the barred list. That position was different from simply reviewing the evidence that was before the DBS and reaching a different conclusion, which is not open to the Upper Tribunal. The Upper Tribunal was not in effect bound to ignore the person’s oral evidence unless it contained something entirely new. Such an approach would be anomalous because a barred person who attended their appeal hearing before the Upper Tribunal that they were innocent but were not cross-examined would be liable to have the appeal dismissed because no item of fresh evidence had been put forward whereas if a new fact was mentioned in the course of cross-examination, that would confer on the Upper Tribunal a wider jurisdiction to allow the appeal on mistake of fact grounds. The approach would also be unjust because the DBS had draconian powers under the 2006 Act and a decision to place an individual on either or both of the barred lists was likely to bring their career to an end, possibly indefinitely. Parliament gave such a person the right of appeal to an independent and impartial tribunal which could hear oral evidence and it was open to a barred person to give evidence that they did not do the act complained of and for the Upper Tribunal to overturn the decision if it accepts that case on the balance of probabilities. Where Parliament created a tribunal with the power to hear oral evidence it entrusted the tribunal with the task of deciding on the basis of all the oral and written evidence in the case whether a witness was telling the truth (paras 28, 29, 34, 35, 37, 38, 43, 44, 49, 50, 51, 57).
Carine Patry KC (instructed by DBS Legal Services) for the Disclosure and Barring Service.
Edward Kemp and Tom Gillie (instructed by Advocate) for RI