A.B. v The Disclosure and Barring Service

Under Safeguarding Vulnerable Groups Act 2006, a finding that a person may harm a child or vulnerable adult is an appealable predictive finding of fact. It is distinct from the assessment of the level of risk, which involves weighting likelihood and gravity and forms part of the non-appealable assessment of appropriateness for barring.

The Upper Tribunal may review legal and factual error, including adequacy of reasons, but must not substitute its own assessment of risk level or appropriateness. Reasons need only be intelligible and sufficient to show the basic findings and why representations failed. A disproportionate barring decision is an error of law.

A.B., a nurse, was placed on the Children’s and Adults’ Barred Lists by the Disclosure and Barring Service after it found that he had repeatedly engaged in online fantasy conversations claiming sexual activity with fictional daughters aged 12 and 15.

He appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006. He challenged the findings that he may harm children and vulnerable adults, the adequacy of the DBS’s reasons, and the proportionality of barring. The central issue was the boundary between appealable predictive findings of fact about risk and the DBS’s exclusive assessment of risk level and appropriateness.

1. Appeal dismissed. The DBS decision to include the appellant on both barred lists involved no material error of law or fact and was confirmed.
2. A determination under Schedule 3 paragraph 5(4) that a person may harm, cause harm to, or put a child at risk of harm is a binary, predictive finding of fact. It is therefore within the Upper Tribunal’s appellate jurisdiction under section 4(2). The Tribunal construed [2021] EWCA Civ 1575 as excluding from appeal only the evaluative assessment of the level of risk which informs appropriateness.
3. The level-of-risk assessment is multifactorial and context-dependent. It concerns the likelihood and seriousness of possible harm, and is a matter of weighting for the DBS. The Tribunal could not substitute its own view of that assessment or of appropriateness.
4. The evidence supported the DBS’s finding that the appellant may put children at risk of harm. Repeated online activity, use of different pseudonyms, awareness that indecent images were shared, inconsistent accounts, deception of his employer, and absence of evidence of treatment were capable of supporting that conclusion. Fictional rather than actual children did not itself negate risk.
5. There was also some risk to vulnerable adults. Although the DBS’s reasoning was compressed and the risk was probably lower than for children, the Tribunal could not find that there was no such risk. Its level remained for the DBS.
6. The DBS gave adequate reasons. It identified the basic findings and sufficiently explained why the representations did not alter the result. The statutory appeal did not require perfect or optimally expressed reasons.
7. Barring was proportionate despite its serious consequences. Given the upheld findings and the appellant’s conduct, the decision could not be characterised as disproportionate.

• Upper Tribunal (Administrative Appeals Chamber): appeal from the DBS final decision of 26 February 2021. The Tribunal dismissed the appeal and confirmed the decision.