Disclosure and Barring Service v Harvey

On an appeal under the statutory barring scheme, proportionality and rationality remain reviewable as questions of law. The Upper Tribunal must, however, respect the specialist safeguarding authority’s judgment and must not conduct a full merits reconsideration or substitute its own balancing exercise. Medical evidence directed to a particular sheltered and supervised role does not establish the absence of risk in other employment. The tribunal must consider the transferability and possible gravity of risk, together with whether proposed safeguards can be guaranteed or imposed. An authority may therefore retain a person on a barred list where the evidence supports a wider potential risk and the safeguards cannot be secured.

The Independent Safeguarding Authority included Mr Harvey, a former teacher who had seriously assaulted a pupil, on the Adults’ Barred List under the Safeguarding Vulnerable Groups Act 2006. The Upper Tribunal allowed his appeal and directed that his name be removed, holding that the barring decision was disproportionate: [2012] UKUT 91 (AAC). The Authority appealed, arguing that the Upper Tribunal had misunderstood the limits of proportionality review and had failed to give proper weight to its specialist assessment. The central issues were whether the Upper Tribunal had erred in law and whether its conclusion that the barring decision was disproportionate was lawfully open on the evidence.

The appeal was allowed unanimously. Treacy LJ gave the judgment, with Jackson LJ and Maurice Kay LJ agreeing.

1. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may review the rationality and proportionality of a barring decision notwithstanding section 4(3). The jurisdiction remains supervisory. It does not permit a full merits reconsideration or a de novo decision on appropriateness. As established in B v Independent Safeguarding Authority [2013] 1 WLR 308, the Tribunal must accord appropriate weight to the specialist authority’s safeguarding judgment.
2. The Authority had conducted a thorough and careful assessment. It was entitled to read Dr Medley’s report as addressing the proposed charitable work in a sheltered and supervised setting, rather than all future employment involving vulnerable adults. The recurrent nature of Mr Harvey’s depressive disorder, the relatively short period of improvement, the possible transferability of risk from children to vulnerable adults, and the gravity of potential harm were material considerations. The safeguards suggested by Dr Medley could not be assumed to operate in other employment and could not be imposed as conditions of a general bar.
3. The Upper Tribunal misconstrued the medical evidence, wrongly assumed that the safeguards would be in place, failed to address material aspects of the Authority’s assessment, and gave little or no weight to the Authority’s specialist judgment. Its interpretation of the report was perverse and its conclusion that the Authority’s decision was an error of law was itself erroneous.
4. The Upper Tribunal’s decision was quashed. The Authority’s decision to retain Mr Harvey on the Adults’ Barred List was restored. The matter was not remitted. Permission to appeal was refused and there was no order as to costs.

• Court of Appeal (Civil Division) allowed the appeal, quashed the Upper Tribunal’s decision and reinstated the Authority’s decision.
• Upper Tribunal (Administrative Appeals Chamber), [2012] UKUT 91 (AAC), allowed Mr Harvey’s appeal against inclusion on the Adults’ Barred List and directed removal of his name.