XY v The Independent Safeguarding Authority

On an appeal against discretionary inclusion in a barred list, the Upper Tribunal determines whether the Independent Safeguarding Authority made an error of law or a material error of fact. It does not reassess for itself whether inclusion is appropriate unless such an error is established.

Factual allegations must be proved by the Authority on the ordinary civil standard. A lack of conviction does not prevent a finding of relevant conduct. Similar allegations may be mutually probative where the risk of collusion or contamination is addressed, their similarity is assessed, and the complainants’ reliability is evaluated.

There is no automatic right to an oral hearing before a discretionary barring decision. Procedural fairness may exceptionally require one, but the question is whether proceeding on written material was unreasonable or irrational.

The appellant was placed on the children’s barred list by the Independent Safeguarding Authority under paragraph 3 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. The Authority found, on the balance of probabilities, that he had sexually groomed and abused two boys at different times.

He appealed under section 4(1)(b), alleging a reversal of the burden of proof, misapplication of the statutory test of relevant conduct, unfairness through the absence of an oral hearing, and perversity. The appeal concerned whether the Authority’s final Case Committee decision, rather than defective wording in its notification letter, involved an error of law or a material error of fact.

1. Appeal dismissed. The Authority’s decision to include XY in the children’s barred list involved no error of law or material error of fact. It was therefore confirmed.
2. The Authority bore the burden of proving the factual allegations on the balance of probabilities. The wording of the notification letter wrongly suggested that XY had to disprove them. However, the appeal lay against the Case Committee’s substantive decision. The documentary record showed that the Committee had correctly found the allegations proved on the civil standard.
3. The absence of criminal convictions or cautions did not prevent a finding of relevant conduct. Proceedings before the Authority are civil, the strict criminal rules of evidence do not apply, and conduct may be relevant conduct although it has not resulted in a criminal prosecution or conviction.
4. The Authority was entitled to treat the two accounts as mutually reinforcing. It had adequately considered the possibility of collaboration or cross-contamination, the striking similarity of the allegations, and matters bearing on each complainant’s credibility. Although further enquiries and clearer reasoning would have been preferable in some respects, the omissions did not undermine the findings.
5. There is no automatic right to an oral hearing before the Authority makes a discretionary barring decision. The question is whether failure to hold one was unreasonable or irrational in the particular case. Given the extensive documentary material, detailed written representations, and the historical nature of the allegations, it was not. The Tribunal nevertheless observed that procedural fairness may in some cases favour an oral hearing, particularly for vulnerable or unrepresented persons.
6. The perversity challenge failed because the other alleged errors were not made out. The Tribunal made non-binding recommendations about the Authority’s decision letters, consideration of oral hearings, document presentation, and further evidential enquiries.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed and the Independent Safeguarding Authority’s decision confirmed: [2011] UKUT 289 (AAC) .
• Independent Safeguarding Authority: on 26 May 2010, decided to include XY in the children’s barred list. The decision was notified on 19 July 2010.