The importance of particularisation – EQ v DBS [2025] UKUT 038 (AAC)

Regulators – for all their faults – appreciate the need to particularise allegations adequately. The same cannot always be said of the DBS. Whilst its decisions can ruin a professional’s life as effectively as any FTP process, it operates with about half the procedural rigour.

EQ received a minded to bar letter from the DBS which included (among others) an allegation that she had made medication errors in the course of two days whilst working at a care home. The DBS did not specify the medications, the patients or the number of errors. It provided documentation in support of its case, which included minutes of a meeting at the Care Home, representations made on EQ’s behalf in relation to an Enhanced Criminal Records Check, and an anonymous referral to the NMC. No medication administration records were provided. This allegation was ultimately found proved and – in conjunction with another finding – EQ was placed on both barred list.

On appeal before the Upper Tribunal, I argued that this medication allegation was hopelessly particularised, and the evidence in support of it was contradictory in places. The lack of particularity not only impeded EQ’s ability to respond, but it also made it impossible to judge whether the decision to bar was reasonable or not. The allegation as drafted would be made out if one or one hundred drug errors had been committed, or if the errors involved hay fever or heart medication. The decision letter did not make clear what the DBS had ultimately found proved. How then could the seriousness of the conduct be judged? The DBS disagreed and argued that the underlying evidence did allow EQ to understand the case against her with reasonable specificity. The Upper Tribunal rejected that contention. Endorsing the need for particularisation, as set out in Johnson and Maggs and B v Independent Safeguarding Authority, it noted:

“In our view, Mr Geering’s submissions on this issue are well-founded. While we acknowledge the protective role the DBS has, its decisions in furtherance of that role may have draconian effects on those who lose their livelihood or at least their ability to engage in their chosen field in consequence. Although none of the authorities on which Mr Geering relies are strictly binding upon us, we respectfully agree with them… While we acknowledge the care with which Mr Webster as a professional advocate has pieced together information relating to some (though not completely in relation to all) of the allegations that could be derived from the material sent with the MTB letter, we do not consider that that was a reasonable step to require of the person whose conduct was in issue… In our judgment, she is entitled to make her representations in response to a properly particularised MTB letter, not least so that, as Mr Geering submits, the DBS may consider “appropriateness” in the light of them.”

An unfortunate feature of these cases is the extent to which the DBS may have to rely on dubious evidence from internal employment proceedings. This was a feature here. The DBS had argued EQ had admitted to the drug errors in an internal meeting, so the lack of particularity was immaterial. I maintained the meeting was conducted without warning, was clearly pre-judged, in fact it recorded no express admissions and it should be given no weight. The Tribunal noted:

“We are not sitting in judgment on the employer’s handling of the situation, but would have attached more weight to that if it had been expressed in properly conducted investigatory and disciplinary hearings rather than in hearings that were very brief and to an extent in the nature of an ambush and in a decision letter which appears to confuse the seriousness of the allegations with whether the matters alleged occurred.”

It is extraordinary that any allegation like this can be made by the DBS, relying on such material, when the medication charts had not even been provided. A dubious meeting can hardly be substitute to a contemporaneous document.

The decision is a welcome warning to the DBS. It needs to set out its position clearly so those affected can understand the case against them and respond appropriately. Moreover, it needs to be more critical of the evidence it receives. If it does not, the unfairness of a botched internal investigation will bleed into the DBS process itself.