AB v Disclosure and Barring Service

An appeal against a barring decision is confined to an error of law or a material error of fact. The Upper Tribunal does not reconsider whether barring is appropriate on the merits. It must give appropriate weight to the statutory judgment of the Disclosure and Barring Service, including on proportionality.

The Disclosure and Barring Service may reach its own safeguarding assessment despite a probation assessment or restrictions imposed under another legal scheme. A barring decision may be proportionate where serious and prolonged offending, limited insight, and insufficient evidence of effective self-management establish a continuing risk of harm to children.

AB, a driving instructor, was convicted of offences involving indecent images of children. The Disclosure and Barring Service decided on 2 July 2015 to include him in the Children’s Barred List.

AB applied late for permission to appeal. He alleged procedural unfairness, challenged the assessment of risk, relied on probation material and counselling, and contended that barring disproportionately interfered with his rights under Article 8.

The Upper Tribunal admitted the late application in the interests of justice. The central issue was whether the DBS decision disclosed an arguable error of law or material fact.

1. Permission to appeal was refused. Although the application was almost one month late, it was admitted in the interests of justice. The prejudice to the DBS was negligible and the application raised concerns about information-sharing by probation bodies.

2. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal could interfere only for an error of law or a material error of fact. It could not reconsider the appropriateness of barring. In assessing any proportionality challenge, it had to give due weight to the DBS as the statutory safeguarding decision-maker.

3. The DBS had followed a lawful and structured decision-making process, considered the material available, disclosed material on which it relied for comment, and gave adequate reasons. It was entitled to make its own risk assessment. A probation classification of low risk, and a time-limited Sexual Offences Prevention Order which did not restrict employment with children, did not prevent the DBS from exercising its separate safeguarding function.

4. The DBS had sufficient evidence to conclude that inclusion on the Children’s Barred List was appropriate and proportionate. Relevant matters included the seriousness, quantity and duration of the offending, the ages of children depicted, limited insight into the resulting harm, and the absence of credible evidence of effective self-management or of the claimed treatment’s effect. The decision did not irrationally conflict with the decision not to include AB on the Adults’ Barred List, which required a separate assessment.

5. The judge also expressed concern, without deciding an issue necessary to the result, that probation bodies had failed to provide or explain their refusal to provide relevant information sought by the DBS. Such non-co-operation could undermine statutory safeguarding. The judge invited the DBS chief executive to send the ruling to the chief executive of NOMS.

6. An anonymity order was made under rule 14(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to protect AB and persons who were children at the time of his conviction.

• Upper Tribunal (Administrative Appeals Chamber): AB’s late application for permission to appeal the DBS barring decision was admitted, but permission was refused.
• Disclosure and Barring Service: On 2 July 2015, the DBS decided that AB should be included in the Children’s Barred List.