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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Disclosure and Barring Service v RI [2024] EWCA Civ 95 (09 February 2024) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2024/95.html Cite as: [2024] WLR 4033, [2024] WLR(D) 57, [2024] 1 WLR 4033, [2024] EWCA Civ 95 |
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ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
UPPER TRIBUNAL JUDGE HEMINGWAY
UPPER TRIBUNAL MEMBERS GRAHAM AND JACOBY
UA 2020 00408 V
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MALES
and
LORD JUSTICE LEWIS
____________________
| DISCLOSURE AND BARRING SERVICE |
Appellant |
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| - and - |
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| RI |
Respondent |
____________________
Edward Kemp and Tom Gillie (instructed by Advocate) for the Respondent
Hearing date: 1 February 2024
____________________
Crown Copyright ©
Lord Justice Bean:
Factual and procedural background:
Relevant statutory and procedural framework:
"4 Appeals
(1) An individual who is included in a barred list may appeal to the [UT] against
(a) [ ]
(b) a decision under [paragraph 2, 3, 5, 8, 9 or 11] of [Schedule 3] to include him in the list;
(c) [ ]
(2) An appeal under subsection (1) may be made only on the grounds that [DBS] 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 [UT].
(5) Unless the [UT] finds that [the DBS] has made a mistake of law or fact, it must confirm the decision of [the DBS].
(6) If the [UT] finds that [the DBS] has made such a mistake it must
(a) direct [the DBS] to remove the person from the list, or
(b) remit the matter to [the DBS] for a new decision.
(7) If the [UT] remits a matter to [the DBS] under subsection (6)(b)
(a) the [UT] may set out any findings of fact which it has made (on which [the DBS] must base its new decision); and
(b) the person must be removed from the list until [the DBS] makes its new decision, unless the [UT] directs otherwise."
The DBS decision:
"The DBS is satisfied that you have previously been engaged in regulated activity with vulnerable adults. This is because you were previously employed as a Support Worker at Metropolitan Thames Valley Housing.
Having considered all to the information available to it, the DBS is satisfied that you have engaged in relevant conduct in relation to vulnerable adults, specifically, conduct which endangered a vulnerable adult or was likely to endanger a vulnerable adult.
The reason we have concluded the above is that we have considered your representations and are satisfied that, on the balance of probabilities, between January 2018 and September 2018 you stole £100 cash withdrawals totalling £2800 that service user [RV] had made from his savings account.
In your representation you provided details of how you kept a log of withdrawals from the Halifax account, with £300 being withdrawn per week. However, no logs were kept for the withdrawals from the service user's NatWest account as you let the service user take control of that amount to spend as part of his skill teaching. You said you did not have authority to prevent him from applying freewill to his expenditure.
However MTVH policy states it is not mandatory to record all financial transactions for Level 1 customers when supporting them with their finances, however the policy makes clear that if there was a need for this to be done it should be recorded in the care plan. This service user's financial capability assessment, which was written and signed by you, states that all transactions are recorded. The fact that service user's financial capability assessment was written and signed by you supports that you were well aware that there was a requirement for all the transactions that were made by the service user to be documented.
It was highlighted that the service user did not actually make any complaint and when spoken to could not actually remember certain dates. In addition the service user is seen as a person who does have capacity and can manage some elements of his finances without staff support.
It is acknowledged by the DBS that the service user had learning disabilities and some health needs due to his diagnosis of Myotonic Dystrophy which also causes a slight slur to his speech. However, it is documented that he needs assistance from a Support Worker in all aspects of his life, including his finances and whilst the service user does have some access to his own finances this is in a supervised capacity.
The allegation came to light following the completion of an internal audit of the service user's finances. When the service user was questioned whilst he was unsure on specific dates, he was very clear that about the amounts of money he was withdrawing and that he was giving all of the money to you. You had been caring for the service user for a period of 18 months so it is likely you previously had a good relationship and therefore it is considered there is no apparent motivation for him to make a malicious allegation against you.
You correctly highlighted that the service user likes to spend his money on Disney items and wigs, and you stated you did raise the excessive spending with the service user's key worker.
It is acknowledged that the police confirmed that the service users flat is full of Disney dolls, Disney DVDs and that the service user wears different princess wigs. However, your account is undermined by the fact that the service user's key worker confirmed they had no recollection of that conversation taking place. In addition, from the time she started supporting the service user in September 2018 to March 2019 the service user had never withdrawn or asked for additional money totalling £100 per week, or anything close to it, on top of his £300 per fortnight. This is supported by the savings amassed by the service user in the period since you were dismissed. Which is not consistent with your account that the service user was wasteful with his money.
Furthermore you also provided an inconsistent account when questioned by the police by suggesting that the service user had spent the money on sex. Something that you had never brought up previously to your employer and something that you would have been expected to disclose in order to safeguard the service user.
You provided information in your representations of how you decided to take your dismissal to an employment Tribunal and MVT decided to settle that matter outside of Court. Whilst you appealed and were taking the matter to an employment Tribunal this does not alter the considerations or findings made by the DBS. The findings are made on the evidence presented in the case material. MVT's decision to settle out of court could have been for any number of reasons and are not consideration for the findings that have been made in this case.
It is acknowledged by the DBS that you were not convicted of any offence in relation to the allegation that was made against you, however the DBS works to a lower burden of proof. The decision to take action against you by the police was due to the criminal threshold being beyond reasonable doubt.
It is further acknowledged by the DBS that you previously had an unblemished career prior to this incident and that you have been employed since the incident absent of any concerns and that you provided credible references to support this.
However, the DBS is now satisfied that you abused your position to facilitate the thefts in this case and it is likely that similar opportunities would be present in regulated activity with vulnerable adults in the future. It is believed that as you only stopped when you were caught, that you may act in the same way again if afforded similar opportunities. If you were to repeat your behaviour this would cause further financial and emotional harm to vulnerable adults. Consequently, the DBS is now satisfied that it is appropriate to include you in the Adults Barred List".
The UT decision:
"24. In deciding this appeal, we have taken into account all of the documentary material before us including the written arguments contained in the DBS's response to the appeal and the appellant's reply to the response. We have taken into account all of what was said at the hearing including the oral evidence of the appellant and the oral submissions of the two representatives. As is clear from what has been said above, this was purely an error of fact case. The appellant's position was that the DBS had made a mistake of fact in concluding that she had stolen money from RV and that that was a fact on which the decision to include her in the Adults Barred List was based. The DBS position was that its finding as to theft was correct so that there had been no mistake of fact at all.
25. In asking ourselves whether the DBS has made the mistake of fact as alleged, we have reminded ourselves that it is not enough that the Upper Tribunal would have made different findings (see paragraph 38 of PF). We have reminded ourselves of what was said by the Court of Appeal in AB, cited above, with respect for the need to distinguish findings of fact from value judgments. But here, we are dealing with straightforward facts rather than inferences or evaluations of any sort.
26. We have, in considering whether the DBS has made a mistake of fact, had the benefit of all of the documentary evidence which was before it and which was properly and fully disclosed pursuant to the Upper Tribunal's directions. We have had, in addition to that, the valuable benefit of hearing oral evidence from the appellant and of having that evidence tested by way of cross-examination and probed by further questions asked by the Upper Tribunal's panel members. We have had the valuable benefit of hearing oral submissions as to the issue from the two representatives as well as written arguments in the response and reply referred to above. As already noted, we are not restricted to a consideration of the material which was before the DBS when it made its findings of fact and its decision (see paragraphs 42 and 51(c) of the decision of the Upper Tribunal in PF). We have the DBS reasoning as set out in its decision letter before us and we have taken account of it for what it is worth in the context of the evidence as a whole (see paragraph 49 of PF). We acknowledge the DBS's experience in fact-finding but, given the circumstances obtaining in this appeal, we have noted the comments of the Upper Tribunal in PF to the effect that it is doubtful "that the DBS has much to teach judges about assessing hearsay evidence or about drawing inferences, both of which are well within the range of skills deployed by judges in all courts and tribunals at all levels" (paragraph 48 of PF). But we do bear in mind that aspects of the DBS's reasoning may assist us in making our own assessment of the evidence which is before us and which, as we have already said, is now a fuller body of evidence than that which was before the DBS. We have borne in mind that it is for the appellant to show, to a balance of probabilities, that the DBS has made a mistake of fact.
27. Having heard from the appellant we have undertaken an assessment as to her credibility. In doing so, although we have set out the various matters which we have taken into account sequentially (which of course is inevitable) we wish to stress that we have considered all the factors below, together, as one composite whole, prior to reaching a view as to credibility and prior to deciding whether, in making the findings it did, the DBS made a mistake as to fact.
28. We were impressed by the claimant's oral evidence. It was, in our judgment, given in what was largely a clear and straightforward manner. We did not detect any internal inconsistencies in the oral evidence nor any inconsistencies with her written evidence as set out in her written statement. Further, Mr Serr did not expose any such inconsistencies in his cross-examination nor did he point us to any such inconsistencies in his closing submissions. None of that, of itself, means that the appellant was telling us the truth. But it points, when taken along with other factors, to a conclusion that she might well have been.
29. The appellant has been steadfast, throughout the disciplinary proceedings brought by employer B, the DBS investigation and these proceedings, regarding her innocence. Of course, it might be said that she is simply a consistent and determined liar. But we do give her a degree of credit for her consistent denials over a protracted period. We appreciate that the specific allegation that RV was paying persons for sexual services was not (on our scrutiny of the papers) made prior to police involvement or was, in any event, made at a relatively late stage. But the allegation is not out of line in any sense with the appellant's earlier assertions as to general financial irresponsibility and we do not think the specific allegation of paying for sexual services takes matters very much further or significantly buttresses the appellant's case anyway. We do not conclude, therefore, that it was an artificial embellishment made to falsely enhance her prospects of success either in resisting a criminal prosecution or in succeeding in these proceedings.
30. The appellant has been employed as a support worker and/ or keyworker since 2001 or 2002. It seems to have been accepted by the DBS that there is no evidence of any other similar complaints touching upon alleged dishonesty, having been made against her in the course of that employment. She told us that there had been no such complaints and she told us that she had not, apart from the police investigation involving the allegations of financial irregularities concerning RV, been involved in any other police investigations regarding dishonesty. Such was unchallenged or not seriously challenged and we accept all of that. Of course, it is always possible that a person of previous good character will find themselves tempted into offending for personal gain. We keep that possibility in mind. But, nevertheless, we think that the appellant would have had opportunities to financially exploit people over a number of years had she wished to. Against that background we take the view that her previous good record makes it less likely that she has stolen money from RV.
31. There is, in our view, a lack of reliable direct evidence pointing to the appellant having stolen money from RV. We do accept, as Mr Serr points out in closing submissions, that RV did indicate that the claimant had stolen money from him. The written material provided by the police (see page 99 to 103 of the Upper Tribunal's appeal bundle) indicates that he had "confirmed the allegation made by the third party". But we are not told precisely what he had to say or why it is that he believes the appellant, as opposed to say some other individual or some other support worker, has stolen his money. Further, the same documentation emanating from the police indicates that he was not able to provide details with any degree of specificity. When Upper Tribunal Judge Hemingway granted permission to appeal, he observed that appeared to be a lack of written evidence regarding what RV had had to say about the allegations and that remains the case now. In these circumstances it is difficult for us to attach any more than limited weight to the fact of the allegation made by RV. We also attach some weight to the appellant having given a "commented" interview to the police. It is unfortunate that we do not have a copy of the record of the police interview, but we give a degree for credit to her for actually responding to and answering the questions put to her. We do not attach weight to the decision not to prosecute as such, because of the stringent standard of proof (beyond reasonable doubt) applicable in criminal proceedings but we find ourselves in agreement with the police view that the direct evidence against the appellant (as opposed to circumstantial evidence which we shall comment upon below) appeared unpersuasive.
32. The appellant gave evidence to the effect that other support workers would have had the opportunity to deal with RV's finances during the period of January to September 2018. Her evidence on that point was not the subject of any serious challenge and we accept it. Thus, we conclude there would have been others with opportunities to steal money so that this is not a case where the appellant was necessarily the only candidate.
33. The appellant told us, and again this was not subject to challenge, that RV had requested her to accompany him on a trip to Disneyland Paris and that, notwithstanding that she had by then ceased to be his keyworker, she had done so in the course of her employment. Whilst we have noted that the documentation does appear to indicate that RV had accused the appellant of stealing from him, that does, on the face of it, appear to sit unhappily with his apparent enthusiasm that she, as opposed to some other employee of employer B, should accompany him.
34. The appellant's evidence both orally and in writing was to the effect that frequent audits, sometimes without notice, would be carried out by staff of employer B. The frequency with which she suggests such audits took place does appear to be surprising, but no challenge was made with respect to her evidence on that point. We are prepared to and do accept that there would have been audits of some frequency and that the timing may have been unpredictable. That being so, we think such would have served as a disincentive to the appellant or anyone else to steal money from service users in the way that it has been alleged that this appellant did. That is not, at all, a decisive consideration but it affords some support for the proposition that the appellant did not steal money from RV.
35. The appellant described a time when RV had invited a stranger into his home with the consequence that a safe in which some of his money was kept, was stolen. Again, that part of her evidence was not challenged, and on balance we accept it as being truthful and accurate. That serves to illustrate, consistent with his former ability, that he is a person who might easily be exploited on financial grounds by unscrupulous individuals. That raises the possibility that someone other than the appellant might have exploited him in that way.
36. We accept that the arrangement described by the appellant, whereby the sum of £100 was transferred to a cash card account and then spent by RV, has not been evidenced in documentation before us but the lack of documentation of itself does not mean that such an arrangement was not in place. We note Mr Serr's contention that the making of such an arrangement with a view to spending rather than saving is improbable. But whilst the making of such an arrangement might seem odd, we are not persuaded that its setting up is inconceivable. Further, we accept a view might have been taken that affording RV a limited amount of freedom to spend a limited amount of money as he wished, might have led to him spending less money overall. We also note that we have received no evidence provided for the purposes of these proceedings before us, from employer B or any of its staff, refuting the claimed existence of such an arrangement.
37. We note that the disciplinary proceedings resulted in a finding of gross misconduct and the appellant's dismissal. We attach weight to that. But we are not bound by the findings. We note the contention that no co-worker had acted as a witness for the appellant in those proceedings. But we do not find that to be damning because there might be any number of reasons why former colleagues would not wish to involve themselves in such proceedings. Mr Serr argues that the disciplinary proceedings were evidently thorough and that we should draw no conclusions from the fact of the subsequent £15000 settlement reached as a result of the institution of Employment Tribunal proceedings. We are in a good position to make up our own mind on the evidence, notwithstanding what might be thought to have been the thoroughness of the disciplinary process. We attach only little weight to the £15000 settlement, but despite what Mr Serr has to say about that we do take the view that it would appear to represent a substantial settlement and more than what might be properly characterised as a nuisance value settlement. But, of course, we do not have access to the reasons as to why such an offer was made or accepted.
38. We are concerned as to the apparent ability of RV to save money once the appellant had ceased to be his keyworker. We are also concerned about the fact that, notwithstanding the appellant says she spoke to the new keyworker about RV's financial profligacy, she has no recollection of it. But the lack of recollection on the part of the keyworker does not, of itself, mean that no such conversation took place. Whilst the keyworker appears to have described RV as being "very frugal" the totality of the evidence does not necessarily point that way and at the police visit to his home a number of Disney items were noted to be present and, of course, the appellant has indicated that he would spend money on frivolities such as that. There might have been other causes unrelated to the appellant's cessation of her duties as a keyworker, which impacted upon his spending habits.
39. Stepping back and taking an overall view we recognise that this is not a case where all of the evidence points one way. But we are satisfied, taking everything into account, that the appellant, from whom we heard in some detail and who we had an opportunity to assess while she was giving her evidence, did not steal any money from RV. The evidence as to that might justify some suspicion but it does not, in our considered view, justify anything more than that."
Grounds of appeal to the Court of Appeal:
Ground 1: The Tribunal erred in law by adopting an impermissible approach to s 4(2) of the 2006 Act, contrary to case-law.
Ground 2: The Tribunal erred in law in its conclusion that others may have stolen the money, as there was no evidence at all to support this, and neither party had advanced this position; and
Ground 3: The Tribunal reached two further conclusions which were plainly wrong or alternatively failed to take into account material considerations which disproved the conclusions reached.
Ground 1: Error of law in the UT's approach to the mistake of fact jurisdiction on appeal from the DBS
"During oral submissions there was some debate about the meaning to be attributed to the phrase 'a mistake . . . in any finding of fact' within section 4(2)(b) of the Act. I can see no reason why the subsection should be interpreted restrictively. In my judgment the Upper Tribunal has jurisdiction to investigate any arguable alleged wrong finding of fact provided the finding is material to the ultimate decision."
37. Section 4(2)(b) refers to a 'mistake' in the findings of fact made by the DBS and on which the decision was based. There is no avoiding that condition. The issue at the mistake phase is defined by reference to the existence or otherwise of a mistake. If the Upper Tribunal cannot identify a mistake, section 4(5) provides that it must confirm the DBS's decision. That decision stands unless and until the tribunal has decided that there has been a mistake.
38. 'Mistake' is the word used and there is no reason to qualify it. The courts operate a test of whether a decision was 'wrong'. This has in the past been qualified by words like 'plainly'. Nowadays, that has to be understood in the way explained by the Supreme Court in Henderson v Foxworth Investments Ltd [2014] UKSC 41, [2014] 1 WLR 2600:
62. Given that the Extra Division correctly identified that an appellate court can interfere where it is satisfied that the trial judge has gone 'plainly wrong', and considered that that criterion was met in the present case, there may be some value in considering the meaning of that phrase. There is a risk that it may be misunderstood. The adverb 'plainly' does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion.
That draws attention to the need to identify an error or, in the language of section 4, a mistake. It is not enough that the Upper Tribunal would have made different findings. The word 'plainly' has not yet taken root in the Upper Tribunal's cases. The phrase was used in XY at [53], but the tribunal was merely giving a general description of the tribunal's jurisdiction on mistake of facts and not dealing with its interpretation. In order to avoid any doubt or confusion about what it means, it is better to use only the statutory language and avoid any qualifiers.
39. There is no limit to the form that a mistake of fact may take. It may consist of an incorrect finding, an incomplete finding, or an omission. It may relate to anything that may properly be the subject of a finding of fact. This includes matters such as who did what, when, where and how. It includes inactions as well as actions. It also includes states of mind like intentions, motives and beliefs.
..
41. The mistake may be in a primary fact or in an inference. There was a discussion at the hearing about primary and secondary facts and about inferences. It became clear that these terms were used in different senses, so we need to make clear what we mean. A primary fact is one found from direct evidence. An inference is a fact found by a process of rational reasoning from the primary facts as a fact likely to accompany these facts.
42. One way, but not the only way, to show a mistake is to call further evidence to show that a different finding should have been made. The mistake does not have to have been one on the evidence before the DBS. It is sufficient if the mistake only appears in the light of further evidence or consideration.
43. When the Court of Appeal deals with a challenge to a judge's findings of fact on appeal, it largely limits itself to the evidence that was before the court below and only allows fresh evidence if it satisfies the conditions set out in Ladd v Marshall [1954] 1 WLR 1489 Those reasons make eminent sense in an appeal from a court or tribunal. They are not appropriate to an appeal from an administrative decision-maker and do not apply under section 4.
44. Whether or not the Upper Tribunal hears further evidence, it will have before it the reasoning of the DBS when it makes its assessment of the evidence. The respect to be shown to that reasoning was the only surviving area of disagreement by the end of the oral hearing.
49 The DBS's reasoning will be before the Upper Tribunal and the tribunal will take account of it for what it is worth in the context of the evidence as a whole. At one extreme, it may be of little assistance. If the tribunal has received significant further evidence (such as oral evidence that would not have been available to the DBS), it is likely that its evaluation of the evidence that was before it will have been overtaken so that the only appropriate approach will be for the Upper Tribunal to begin afresh. At the opposite extreme, it may play a significant role. If there is no further evidence put to the Upper Tribunal, the DBS's reasoning may well form the basis of the case that the appellant has to meet. Between these extremes, its relevance and significance will depend on the circumstances of the case... "
"90. On his appeal to the UT JHB did not challenge either the facts underlying the conviction or finding 1 .. This was a case in which the UT heard very limited evidence from JHB, for example, that he had not been interviewed by the police about the allegation on which finding 3 was based. The UT does not seem to have heard much evidence which had a direct bearing on the matters on which the DBS relied in making findings 2 and 3, let alone any significant evidence. On the reasoning in PF, the decision of the DBS was therefore the starting point for the UT's consideration of the appeal. JHB did not claim that the DBS had erred in law. The UT could not exercise any powers on the appeal, therefore, unless it identified an error of fact in the approach of the DBS to the findings of fact on which the Decision was based. Those findings were the conviction for the Offence, which JHB did not challenge, finding 1, which JHB admitted, and findings 2 and 3. Those findings of fact did not include the DBS's assessment of the weight to given to the reports. The UT was not free to make its own assessment of the written evidence unless, and until, it found such an error.
92. The UT began its consideration of finding 2 by announcing that the DBS 'made a mistake with this finding'. The UT did not, in paragraphs 9-19, explain in what way finding 2 was 'wrong', or outside 'the generous ambit within which reasonable disagreement is possible'. Its approach, rather, was to look at very substantially the same materials as the DBS, and to make its own findings of fact ('These are our findings'). Those findings were different from the DBS's assessment of those materials. I infer that what the UT meant when it referred to a 'mistake' in the first sentence of paragraph 9 was that the DBS had a mistaken view of the facts because the UT happened to differ from the DBS in its assessment of the same or very nearly the same materials.
93. On the authorities, a disagreement about the evaluation of the evidence is not 'an error of fact'. In my judgment the material considered by the DBS did permit such a finding on the balance of probabilities. If such a finding was open to the DBS on the balance of probabilities, the DBS did not make a mistake in coming to that finding.
95. It seems to me that the UT understood the DBS's reliance on paragraph 2 of Volpi v Volpi as a submission that, in order to show that there has been 'a mistake of fact' it is necessary to show that there was no evidence to support that finding, or that it was irrational. I agree with the UT that if that were the position, section 4(2)(b) would be redundant. But, in my judgment, that is not the position on an appeal such as this, for two reasons. First, a finding may be 'wrong' for this purpose, even if there was some evidence to support it, or it was not irrational, as the reasoning in Indrakumar and Subesh shows. Second, a finding may also be 'wrong' for the purposes of section 4(2)(b) if it is a finding about which the UT has heard evidence which was not before the DBS, and that new evidence shows that a finding by the DBS was wrong, as the UT itself explained in PF (see paragraphs 63-65, above). I agree with the UT that Volpi v Volpi is not, in one respect, directly relevant to appeals under section 4 of the SGVA. Volpi v Volpi was an appeal from a court. As the UT in PF and in this case correctly understood, these are appeals from an administrative decision-maker, not from a court. That means that Ladd v Marshall does not apply to these appeals, so that, in an appropriate case, the UT can hear relevant evidence which was not before the DBS. Volpi v Volpi and Subesh, both of which concern appeals from courts or tribunals, are nevertheless relevant, however, to an appeal such as this, because they explain the extent of an appeal court's powers on a factual appeal, and thus, in this different context, what it means to make a mistake in a finding of fact."
"26. Ms Patry submitted that the words which I have italicised in paragraph 92 of the judgment of Elisabeth Laing LJ ["the generous ambit within which reasonable disagreement is possible"], while not departing from PF, "clarified it authoritatively". I agree that there is no indication in JHB that PF was in any way erroneous or that the mistake of fact jurisdiction has somehow been transformed into requiring a test of Wednesbury irrationality. It would be particularly inappropriate to confine it in that way when in some appeals from the DBS to the UT, including the present one, the UT hears oral evidence whereas the DBS does not. PF should in my judgment continue to be treated as good law."
Submissions
"It is important to note from the outset that there is no longer any point of legal principle raised by this appeal which requires determination by this court. Permission was granted on the basis that it raised an important point of principle, but then the appeal was stood out behind the case of DBS v JHB which raised the same point. That case is now reported at [2023] EWHC Civ 982. The parties are in agreement as to the interpretation of the mistake of fact jurisdiction of the Tribunal set out in the legislation, the Tribunal's own case law and further clarified by this court in JHB and Kihembo."
"The Upper Tribunal is entitled to make a finding that an appellant's denial of wrongdoing is credible, such that it is a mistake of fact to find that she did the impugned act. In so doing, the Upper Tribunal is entitled to hear oral evidence from an appellant and to assess it against the documentary evidence on which the DBS based its decision. That is different from merely reviewing the evidence that was before the DBS and coming to different conclusions (which is not open to the Upper Tribunal)."
"51. Drawing the various strands together, we conclude as follows:
a) In those narrow but well-established circumstances in which an error of fact may give rise to an error of law, the tribunal has jurisdiction to interfere with a decision of the DBS under section 4(2)(a).
b) In relation to factual mistakes, the tribunal may only interfere with the DBS decision if the decision was based on the mistaken finding of fact. This means that the mistake of fact must be material to the decision: it must have made a material contribution to the overall decision.
c) In determining whether the DBS has made a mistake of fact, the tribunal will consider all the evidence before it and is not confined to the evidence before the decision-maker. The tribunal may hear oral evidence for this purpose.
d) The tribunal has the power to consider all factual matters other than those relating only to whether or not it is appropriate for an individual to be included in a barred list, which is a matter for the DBS (section 4(3)).
e) In reaching its own factual findings, the tribunal is able to make findings based directly on the evidence and to draw inferences from the evidence before it.
f) The tribunal will not defer to the DBS in factual matters but will give appropriate weight to the DBS's factual findings in matters that engage its expertise. Matters of specialist judgment relating to the risk to the public which an appellant may pose are likely to engage the DBS's expertise and will therefore in general be accorded weight.
g) The starting point for the tribunal's consideration of factual matters is the DBS decision in the sense that an appellant must demonstrate a mistake of law or fact. However, given that the tribunal may consider factual matters for itself, the starting point may not determine the outcome of the appeal. The starting point is likely to make no practical difference in those cases in which the tribunal receives evidence that was not before the decision-maker." [emphasis added]
Ground 2: No evidence to support the "inference" others may have stolen the money
Ground 3: Conclusions failed to take into account material considerations
Conclusion
Lord Justice Males:
'There is no limit to the form that a mistake of fact may take. It may consist of an incorrect finding, an incomplete finding, or an omission. It may relate to anything that may properly be the subject of a finding of fact. '
Lord Justice Lewis:
