NI v Disclosure and Barring Service

Neither the Disclosure and Barring Service nor the Upper Tribunal has power under the Safeguarding Vulnerable Groups Act 2006 to remove a person from a barred list retrospectively. The statutory power of removal operates prospectively, whether removal follows an error in the original decision or a subsequent change of circumstances.

Retrospective removal would in substance quash the original listing, a remedy which the statutory appeal jurisdiction does not confer. It would also impermissibly alter the historic legal consequences of inclusion. Article 8 did not require that remedy where the person had been removed and no continuing disadvantage was identified.

The Disclosure and Barring Service included the appellant in the children's barred list. During proceedings in the Upper Tribunal, it identified errors of law and fact and reviewed the case under paragraph 18A of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. It then removed the appellant from the list.

The appellant nevertheless sought to continue her appeal. She contended that she should be removed retrospectively, so that she had never appeared on the list. The central issue was whether the Upper Tribunal could direct retrospective removal.

1. Permission to appeal was refused. Once the DBS had removed the appellant from the children's barred list, the proposed appeal was academic unless retrospective removal was available.
2. Section 4(6) of the Safeguarding Vulnerable Groups Act 2006 requires the Upper Tribunal, if satisfied that DBS made an error of law or fact, to direct removal or remit the matter for a new decision. Its language does not permit retrospective removal.
3. Paragraph 18A of Schedule 3 gives DBS the same removal power where the original decision is called into question and where changed circumstances make continued listing inappropriate. Since changed circumstances could not justify rewriting the past, the common removal power is necessarily prospective. The Upper Tribunal cannot direct DBS to do what the Act does not otherwise authorise it to do.
4. Retrospective removal would effectively quash the original listing. Listing is a historic fact and has legal consequences while it subsists, including criminal prohibitions on barred persons undertaking regulated activity and on employers engaging them. Those consequences cannot be retrospectively altered.
5. There was no realistic prospect that Article 8 required retrospective removal. DBS could only tell a prospective employer that the appellant was not then listed. Challenges to information disclosed on a criminal-record certificate and any damages claim for unlawful listing were separate remedies outside this statutory appeal.
6. The Tribunal also lacked jurisdiction to require a retrospective explanatory note in DBS records. No wider point of principle or other good reason justified considering an otherwise academic appeal.

• Upper Tribunal (Administrative Appeals Chamber): refused permission to appeal from the DBS listing decision after DBS had removed the appellant from the children's barred list.
• Disclosure and Barring Service: initially included the appellant on the children's barred list, reviewed the matter under paragraph 18A of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006, and removed her name on 4 April 2016.