Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal No.  Appeal No.  V /2106/2011

 

ADMINISTRATIVE APPEALS CHAMBER

 

THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008

SAFEGUARDING VULNERABLE GROUPS ACT 2006 (“SVGA”)

 

Appellant: SB2

Respondent: Disclosure and Barring Service (formerly the Independent Safeguarding Authority)

ISA reference: 09/3276720

 

ISA Decision date: 13 January 2011

 

DECISION

 

1. The appeal is allowed.  The Tribunal finds that there was a mistake of fact in ISA’s decision dated 13 January 2011 and sets it aside (SVGA s. 4 (2)(b)).

 

2. The Tribunal remits this matter to DBS to make a fresh decision (SVGA s.4(6)(b)).  

 

3. The Tribunal directs that SB2 is removed from the adults’ list until DBS makes its fresh decision (SVGA 4 (7) (b)).  

 

 

 

REASONS FOR DECISION

 

1     This matter concerns SB2’s appeal against a decision of the Independent Safeguarding Authority (“ISA”) to include her on the adults’ barred list maintained under section 2 of the Safeguarding Vulnerable Groups Act 2006 (“SVGA”). The ISA has now been succeeded by the Disclosure and Barring Service (“DBS”) which is accordingly the Respondent to this appeal. 

 

2     In making its decision to include SB2 on the list, ISA had relied upon its discretionary powers under schedule 3 to SVGA, being satisfied that SB2 had engaged in “relevant conduct” so that it was appropriate to include her on the list.  ISA made a finding of fact that the Appellant had stolen money from an elderly service user (“P”) on at least three occasions, whilst working in P’s home as a home care assistant in 2008.  The Appellant contends that this finding of fact was made in error.  DBS resists this appeal and submits that, as there was no error of fact, the Tribunal must confirm the decision to include SB2 on the adults’ list under section 4 (5) SVGA.

 

3     Inclusion on the barred lists prevents a listed person from engaging in certain regulated activities, as defined in Schedule 4 to the 2006 Act.  It follows that SB2 has been barred from working as a home care assistant since ISA’s decision of 13 January 2011. 

 

4     SB2 was given permission to appeal to the Upper Tribunal by Judge Levenson on 28 March 2012, following an oral hearing. The substantive appeal was heard in London on 29 October 2013.  That hearing was tape-recorded but has not been transcribed.  DBS was represented by Sarah Hannett of counsel.  The Appellant appeared in person and represented herself.  She gave sworn evidence to the Tribunal and was cross examined by the Respondent’s counsel.  The Tribunal had before it a bundle of documents prepared by DBS and also watched a DVD showing CCTV footage of SB2 at work in P’s house. 

 

 

Factual Background

 

5. The Appellant worked as a home care assistant from June 2006 until July 2008, when she resigned from her job following the allegation of theft from P’s home.  The papers before the Tribunal showed that SB2 had a satisfactory employment history prior to her resignation and, as she pointed out to us, she has no criminal convictions. The allegation of theft came about when P’s son reported to SB2’s employer on 29 July 2008 that he had installed covert CCTV cameras in his mother’s home and had captured SB2 on film, stealing money from his mother’s drawer on three separate occasions.  Representatives of SB2’s employer attended P’s home, met the family and made a written “report” recording the allegations of three incidences of theft. The Tribunal was told that ISA’s decision maker did not watch the DVD for policy reasons and that ISA had relied upon SB2’s employers’ report of what was shown on film.

 

6.  The Appellant was said in the employer’s report to have denied that she had stolen from P.  The report also stated that she had refused to watch the DVD in her employer’s presence.  She tendered her resignation to her employer in a letter dated 31 July 2008 which did not dispute the allegation but apologised for any inconvenience caused.  The Appellant subsequently complained to the Information Commissioner that she had not been provided with a copy of the DVD by her former employer and that the DVD had been shown by her former employer to a number of her former colleagues.  She produced a statement from a person who said they had been shown the DVD when they had applied for a job there. The Information Commissioner wrote to the employer to remind it of its obligations under the Data Protection Act 1998 and placed this warning over non compliance on record.

 

7. SB2’s employer made a referral to the police but although she was charged, no criminal proceedings were brought against SB2 due to insufficient evidence.  The matter was initially referred to the Department for Education and Skills in August 2008 and thereafter to ISA on an unknown date.  The Tribunal has seen correspondence between SB2’s former employer and ISA from November 2009.  It appears to have taken nearly two years for any action to be taken in response to the referral, during which time SB2 was free to work as a home care assistant and (as ISA was aware from at least January 2010) was so employed.

 

8. ISA wrote to the Appellant with a “minded to bar” letter on 11 June 2010.  The letter stated that “on the basis of the information we have received we have found on the balance of probabilities that you stole money from a service user on at least three occasions”. A copy of the documents relied upon was sent to the Appellant and her representations were invited within eight weeks.  SB2 replied by letter dated 23 June 2010, in which she stated that her former employer is engaged in a witch hunt against her, that the allegations are unfounded, and asked for copies of the DVDs as she had not yet seen them.  She stated that she would make further representations but in the event did not do so.

 

9. ISA subsequently decided to include the Appellant on the adults’ barring list.  In its  letter dated 13 January 2011 it stated that: “The facts of the case are: - you stole monies from a service user on at least three occasions”.  The Barring Decision Process Document shows that there were “some concerns” in relation to attitudes endorsing harmful behaviour, lack of empathy and irresponsible behaviour, but the only element of the history in respect of which there is a “definite concern” recorded is that of “exploitative attitude”, in relation to which it is said that “the video evidence shows that [SB2] enticed the service user into the kitchen (away from her side table drawer) to enable her to access the monies.  The thefts were therefore pre-meditated rather than opportunist”. Whilst these comments were made at stage 3 of the process, when the case was reviewed at stage 5 the decision maker concluded that “there is no new evidence…which challenges the original findings in relation to the allegation”.

 

10. The Appellant appealed to the Upper Tribunal in July 2011.  Her appeal was permitted to proceed out of time.  At the oral permission hearing in March 2012, Judge Levenson recorded the Appellant as stating that the CCTV footage shows her retrieving a telephone number which she had written on a piece of paper and placed in the drawer.  She also stated that P’s son had placed a note on the front door warning his mother not to open it because the neighbours were stealing from her.  Judge Levenson noted that so far as he was aware SB2 had not previously raised these matters.

 

11. The Appellant made written representations dated 7 June 2012 in response to DBS’s service of the papers upon her. In this letter she states again that P’s son had placed a note on the front door instructing his mother not to open it as the neighbours were stealing from her.  She disputes that the DVD footage is taken on three different dates as she says she changes her clothes a lot due to her psoriasis.  She states that she actually waited 30 minutes at her employer’s office for the managers to arrive with the DVD but then she left because she was upset about the allegations.  She says she did not respond to requests to meet her employer as she had received calls from colleagues saying they had seen the DVD so she felt that her employer had already made up its mind and she could not show her face.  She says that a friend had drafted and delivered the resignation letter for her. 

 

12. In the letter of 7 June 2010 SB2 asserts that she went to P’s drawer for cigarettes and she had also kept pens in the drawer for completing her log book.  She states that she asked for permission from P or P’s son to keep her cigarettes in the draw.   She also states that P did not have money in her possession as SB2 did not undertake shopping duties for P, also that P’s son was a heavy drinker and that he neglected his mother.  She asks why P’s son had not filmed himself putting money into the drawer.

 

The Law

 

13.   SVGA provides a right of appeal for persons included on the barred lists as follows:

 

“Appeals

 

4(1) An individual who is included in a barred list may appeal to the Tribunal against—

(a) a decision under paragraph 2 or 8 of Schedule 3 not to remove him from the list;

(b) a decision under paragraph 3, 5, 9 or 11 of that Schedule to include him in the list;

(c) a decision under paragraph 17 or 18 of that Schedule not to remove him from the list.

 

(2) An appeal under subsection (1) may be made only on the grounds that ISA has made a mistake—

(a) on any point of law;

(b) in any finding of fact which it has made and on which the decision mentioned in that subsection was based.

 

(3) For the purposes of subsection (2), 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.

 

(4) An appeal under subsection (1) may be made only with the permission of the Tribunal.

 

(5) Unless the Tribunal finds that ISA has made a mistake of law or fact, it must confirm the decision of ISA.

 

(6) If the Tribunal finds that ISA has made such a mistake it must—

(a) direct ISA to remove the person from the list, or

(b) remit the matter to ISA for a new decision.

 

(7) If the Tribunal remits a matter to ISA under subsection (6)(b)—

(a) the Tribunal may set out any findings of fact which it has made (on which ISA must base its new decision); and

(b) the person must be removed from the list until ISA makes its new decision, unless the Tribunal directs otherwise.

 

(8) The Secretary of State may by regulations make provision as to the procedure of the Tribunal (including provision as to the award of costs by the Tribunal).

 

(9) A person may appeal on a point of law to the Court of Appeal against a decision of the Tribunal.

 

(10) An appeal under subsection (9) may be made only with the permission of the Court of Appeal”.

 

14. The combined effect of these provisions is that, whilst an appeal can be made to the Upper Tribunal (Administrative Appeals Chamber) on the basis of an alleged mistake of law or fact, the ultimate decision as to the appropriateness of a person’s inclusion in the lists is one for DBS and not the Tribunal.  The Tribunal, where it finds a mistake of law or fact has been made in the barring decision, may remit the matter to DBS for a new decision.  If it remits the matter for a fresh decision it may set out any findings of fact which it has made on which DBS must base its new decision.

 

15.  In SA v ISA [2013] UKUT 093 (AAC) the Upper Tribunal found that “relevant conduct” for the purposes of schedule 3 to SVGA includes theft from a vulnerable adult by a person in a position of trust.

 

16. ISA’s finding of fact was made on the basis of hearsay evidence from P’s family, as recorded in the employer’s report.  There is no legal reason why ISA should not have made a finding of fact on the basis of hearsay and circumstantial evidence, as the formal rules of evidence which would apply in a civil or criminal trial do not apply to ISA or DBS’s decisions.  We also note that the appropriate standard of proof to be applied by ISA was the civil standard of the balance of probabilities and not the criminal standard of beyond reasonable doubt.

 

17. The question for the Tribunal under s. 4(5) of SVGA is whether ISA’s decision contained a mistake of fact or law. If it did not, then we must confirm the decision to include SB2 on the barring list.  We have considered here whether there was a mistake of fact only, as that is the sole basis of the Appellant’s appeal.  We do, however, also make some comments about the legal basis for the decision at paragraphs 30 to 32 below.

 

Submissions

 

18.  DBS’s case was that there was no error of fact in SB2’s case.  It relied upon (i) the report from the employer; (ii) SB2’s conduct in refusing to watch the DVD at her employer’s office; (iii) the DVD with three clips of CCTV footage; (iv) SB2’s resignation and the contents of her letter of resignation; (v) SB2’s inconsistent explanations for her conduct, made to DBS, to the Tribunal at the permission stage and finally at the substantive hearing. 

 

19.  We have considered the report from SB2’s employer carefully. It is dated 29 July 2008 at the top but appears to have been made on 31 July as it refers to events on 31 July and was signed by three managers on that date.  It contains a composite account of events from the three signatories, not all of whom were present for all of the events described. P’s son is reported as having invited the managers to meet him at P’s house in order to view the CCTV footage he had taken of SB2.  Two of the managers went to P’s home immediately and met P’s son and two daughters, who are reported as saying that various amounts of money had been taken over three months and they were suspicious so installed the hidden CCTV camera.  The managers were shown the DVD and noted that it had four film clips on it, but say “the first clip showed SB putting items in her back pocket”.  It does not appear from the report that they actually watched the other film clips but recorded that “the family mentioned there had been two other such incidents”.  The report also states that “[P’s] family mentioned that only SB enticed their mother into the kitchen area (away from her side table draw). Whilst [P] was in the kitchen the DVD showed SB go into the draw and take something out and put it in her pocket”.  The report states that the family was initially reluctant to involve the police but then agreed to do so, on the managers’ insistence.  This report contains the hearsay evidence of P’s family and the decision maker did not consider any statement directly from them.  There are a number of respects in which the report is unsatisfactory as evidence of theft, for example it does not state that money was habitually kept in the drawer or even that money had been stolen from that drawer, only that it had been stolen.  The decision maker appears to have inferred those facts from the report and the other circumstantial evidence available.

 

20.  The third manager was at the office while the others were at P’s house.  That manager contacted SB2 and “asked her to attend a meeting in the office so that this evidence should be shown to her”.  The report states that SB2 attended the office where the allegation that she had stolen money from P was put to her.  She is said to have “denied this but didn’t protest or assert her innocence”.  SB2 is said to have refused to wait 10 minutes for the return of the other managers with the DVD, to have left the office, and not to have answered subsequent calls or text messages. 

 

21.  A letter of resignation from SB2 dated 31 July was hand delivered to her employer’s office.  The letter was in evidence before the Tribunal.  It mentions the “allegations” but does not dispute them.  It asks for SB2’s pay to be brought up to date and apologises for “any inconvenience I may have caused”. Somewhat surprisingly, it concludes “Thank you for giving the opportunity to exel within myself and for your company”. 

 

22. Ms Hannett on behalf of DBS invited the Tribunal to view the DVD footage, even though the decision maker had not viewed it.  The Tribunal has power to admit evidence that was not available to the previous decision maker under rule 15 (2) (a) (ii) of The Tribunal Procedure (Upper Tribunal) Rules 2008, although it may also exclude evidence which it would be unfair to admit under rule 15 (2) (b) (iii).  The Tribunal asked Ms Hannett to explain why we should view the DVD and asked the Appellant whether she objected to us viewing it, which she said she did not.  Ms Hannett submitted that it was the best evidence available and was directly relevant to the question of whether there had been a mistake of fact in the barring decision. She directed our attention to specific parts of the DVD on which DBS relied.

 

23. The Tribunal watched the DVD in the presence of the parties and in private session.  In presenting her case, the Appellant was invited to comment on the images and explain what was happening.  She told us that she kept her own menthol cigarettes in the drawer with P’s permission.  P was a heavy smoker and SB2 said that, before her son moved in, P and SB2 had smoked together.  However, after P’s son moved in he had banned SB2 from smoking on the premises, so she had kept her cigarettes in the drawer and taken one out to smoke outside at the end of her visit.  She explained that her partner did not know that she smoked, so she had needed to hide the cigarettes there.  She said that two of the clips on the DVD showed her taking a cigarette out of the drawer and putting it into her pocket. She also told the Tribunal that she had kept a telephone number in the drawer, as this was to do with a dating agency she had joined and she did not want her partner to know about it.  She said that one of the clips showed her putting the paper with the phone number on it into her pocket. SB2 did not accept that the dates and times shown on the CCTV footage were correct. 

 

24. The Appellant gave sworn evidence to the Tribunal.  She told the Tribunal that P’s son had moved into his mother’s house on the breakdown of his marriage.  She said he had asked her out and she had refused him and that after that he had been critical of her and wanted to get rid of her.  When asked why this was the first time such an explanation had been put forward, she said that she had difficulty reading and writing and that on each of the occasions that written submissions had been made, this had been by a different friend on her behalf.  She said that one of the letters had not even been signed by her but that the others had been.  She said that her limited literary skills had prevented her from checking them for accuracy.  When she gave her account to Judge Levenson she said she had been nervous and did not know what to say and what not to say.  SB2 told the Tribunal that she is now a trainee driving Instructor and not working in the care field any more.  She said she wanted justice and to clear her name.

 

25. SB2 told the Tribunal that the resignation letter had also been composed by a friend.  She stated that she had left her employer’s office without watching the DVD as she had to collect her niece from school.  She said she had previously complained to her employer about the hours she was expected to work and so they had wanted to get rid of her. 

 

 Conclusions

 

26. The Tribunal noted from its own viewing of the DVD that each of the three film clips has a date and time shown at the bottom of the screen: 14 July 2008 starting at 15.35; 16 July 2008 starting at 10.06; and 28 July 2008 starting at 16.06.  Both P and SB2 are wearing different clothes in each film clip.  In each clip, SB2 can be seen going to the top drawer of P’s side table, taking out an item and placing it in her back or side trouser pocket.  It is not possible to see what that item is in any of the clips.  P was out of the room on each of the occasions when SB2 was filmed doing this, although it is not possible to say why she has left the room. The DVD does not have any sound recording, so it is not possible to know what conversation took place between P and SB2 and there is nothing in SB2’s demeanour to suggest that she is “enticing” P out of the room.  P seems to be reasonably mobile in the footage, she uses a stick at times but is seen going in and out of the room by herself and to answer the front door (to let SB2 in) without apparent difficulty. Most of the time P is shown sitting in the chair next to the side table in question, with her cigarettes and ashtray on the top of the table.  SB2 removes dirty crockery from the top of the side table and places items (such as drinks) on it while P sits in the chair.  SB2 puts something into the top drawer (possibly cutlery) and takes something out of it (possibly an ashtray) also while P is sitting in the chair. The film shows SB2 arriving with a piece of paper and a pen, which she gives to P to sign and we assume this is the log book referred to elsewhere. Neither the DVD nor the other evidence explains what is usually kept in the drawer. There is no evidence in the film clips or otherwise to show that money was in the drawer when SB2 arrived and that it was missing when she left. 

 

27.We do not know why the ISA decision maker did not watch the DVD.  Ms Hannett told us she was unable to explain the policy.  There may very well have been perfectly sound reasons for it, but the fact remains that the best evidence available to the decision maker was not viewed in this case.  Because the Tribunal has viewed the DVD, at the invitation of the parties, we have noted a discrepancy between what is shown on the film and the findings of fact made by ISA on the basis of what it understood to be shown on the DVD.

 

28. ISA relied on a suggestion that SB2 had “enticed” P out of the room before going to her drawer.  This suggestion is contained in the hearsay evidence of P’s family, included in the employer’s report.  ISA understood the video to support the hearsay evidence.  Having viewed the DVD, we can find no evidence to support this suggestion in relation to the three occasions shown, and yet ISA relied upon it in making the barring decision, as noted at paragraph 9 above.  We conclude that this constitutes a mistake of fact in the decision to include SB2 in the barred list.

 

29.    We have decided to remit this matter to DBS to make a fresh decision.  We are not in a position to make our own findings of fact in this case.  We take the view that ISA’s reliance upon the hearsay evidence of P’s family was a weakness in this case and that it would have been preferable to have considered witness evidence provided directly from them.  As there was a subsequent police investigation it seems likely that P’s family would have made statements in those proceedings.  These might now be made available to DBS.  The new decision maker may also wish to consider counsel’s note of SB2’s evidence to the Tribunal.

 

Comments on Legal Matters

 

30.  The Tribunal asked Ms Hannett to comment on the lack of particularisation of the allegations in the barring letter.  She accepted that it was a “composite allegation” but submitted that it had sufficient clarity for the Appellant to understand what was suggested and for her to contest it.  She further submitted that the Appellant had not, at any stage, said that she did not understand the allegation or the evidence relied upon in support of it.

 

31. In the particular circumstances of this case there were relatively few documents relied upon by the decision maker and it seems to us that there was sufficient detail in the “minded to” letter of June 2010 to enable the Appellant to respond in broad terms to the composite allegation.  However, we take the view that composite allegations are to be avoided if possible and that it would have been better practice for ISA to have explained to the Appellant that it had relied upon three specific allegations of theft.  It would have been possible for ISA to have referred at the very least to the month in which the three thefts were alleged to have taken place and we note that the precise date and time of each alleged theft were in fact available to ISA on the DVD. We take the view that the more precise the information that is given, the better able the recipient will be to make meaningful representations.

 

32. We also express the view that a finding of fact that there were thefts on “at least” three occasions is a particularly poor formulation, suggesting that the decision maker had taken into account a further unspecified number of allegations in relation to which no evidence is disclosed or available. We suggest that the use of “at least” in relation to findings of fact is to be avoided.

 

 

Signed on the original: Dated: 14 November 2013

 

 

 

Alison McKenna

Richard Beeden

Beryl Chatfield