Independent Safeguarding Authority v SB & Anor

On an appeal against a barred-list decision, the Upper Tribunal may determine whether the decision was irrational or a disproportionate interference with Convention rights. It may not conduct a fresh merits assessment of whether listing is appropriate.

Proportionality requires an objective judicial evaluation. The tribunal must nevertheless give appropriate weight to the judgment of the expert statutory decision-maker. Public confidence in safeguarding arrangements is always material to the balance between individual rights and community interests, although it is not conclusive.

The Independent Safeguarding Authority decided that SB, who had been convicted of offences concerning indecent images of children, should remain on the Children’s Barred List. The Upper Tribunal allowed his appeal and directed his removal. It considered that the Authority had given insufficient weight to evidence of rehabilitation and low risk, and concluded after hearing SB that continued listing was disproportionate.

The Authority appealed. The central questions were whether the Upper Tribunal had effectively undertaken an impermissible merits reconsideration, whether it had given appropriate weight to the expert Authority’s decision, and whether public confidence formed part of the proportionality balance.

1. Appeal allowed. The Upper Tribunal’s decision was quashed and the decision of the Independent Safeguarding Authority was restored. Maurice Kay LJ gave the leading judgment. Etherton LJ and Sir Scott Baker agreed.

2. Although section 4(3) of the Safeguarding Vulnerable Groups Act 2006 prevents the Upper Tribunal from reconsidering whether listing is appropriate as a matter of merits, it may determine whether the Authority’s decision was irrational or disproportionate. A disproportionate decision constitutes an error of law. The proportionality assessment is objective and more intensive than traditional judicial review, but it does not become a full merits appeal.

3. The reviewing tribunal must perform the ordinary judicial task of weighing the competing considerations. In doing so, it must accord appropriate weight to the judgment of the statutory body entrusted with the subject and possessing relevant expertise. The Upper Tribunal had instead allocated weight to the evidence for itself and decided afresh where the balance should fall. Its status as a specialist tribunal did not remove the statutory limits upon its jurisdiction or the significance of the Authority’s particular safeguarding expertise.

4. The Upper Tribunal was wrong to find that the Authority had disregarded the evidence of low reoffending risk and SB’s personal circumstances. The structured assessment showed that the Authority had considered the positive references, voluntary counselling, indications of rehabilitation and countervailing evidence. Hearing oral evidence did not entitle the Upper Tribunal to substitute its assessment, and the Authority had acted lawfully in deciding the case on extensive documentary material where the objective facts were undisputed.

5. Public confidence must always be placed in the balance between individual rights and community interests. It is not an inevitable trump card and does not permit reliance upon unreasonable public reaction. It does, however, encompass concerns reasonably held by ordinary, sensible people about those placed in positions of trust with children.

6. The restrictions imposed by the Sexual Offences Prevention Order did not reduce the practical significance of listing to an immaterial degree. Protecting 16- and 17-year-old girls, and preserving the interests of them and their parents, remained a legitimate public concern.

1. Court of Appeal (Civil Division): Allowed the Authority’s appeal, quashed the Upper Tribunal’s decision and restored the Authority’s decision.
2. Upper Tribunal (Administrative Appeals Chamber): On 4 October 2011, allowed SB’s appeal on proportionality grounds and directed his removal from the Children’s Barred List.
3. Independent Safeguarding Authority: On 16 July 2010, decided to remove SB from the Adults’ Barred List but retain him on the Children’s Barred List. Reasons were provided on 22 October 2010.