MS v DBS

In an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may intervene only for a material error of law or fact. The assessment of whether inclusion in a barred list is appropriate remains for DBS.

DBS has a general power to reopen a closed no-barring-action case to maintain the integrity of the barred lists. A qualified no-barring-action letter does not create a binding legitimate expectation against reopening; in any event, reopening may be justified proportionately by the public interest, representations, specialist decision-making and an independent appeal.

Barring decisions are protective and forward-looking. Proportionality turns on the evidence-based risk of future harmful conduct, including insight and the likelihood and gravity of repetition, rather than punishment or proof of past harm alone.

MS v DBS was an appeal against DBS’s decision of 21 October 2020 to place MS on the Children’s Barred List. MS, then aged 37, had developed an intense friendship and exchanged extensive messages with AB, then aged 15.

DBS had initially taken no barring action in 2018. After receiving further material, including full message transcripts, it reopened the case, invited representations and made the barring decision. MS contended that DBS could not reopen the case, that the decision was disproportionate and irrational, and that its reasons were inadequate.

The central issues were the scope of DBS’s power to reopen a closed case and whether the final barring decision involved a material mistake of law or fact.

1. Appeal dismissed. The Tribunal confirmed DBS’s decision. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, it could interfere only for a material legal or factual mistake. It could not substitute its own assessment of whether inclusion was appropriate.

2. DBS had a general implied power to reopen a closed no-barring-action case in order to maintain the integrity of the barred lists. The power existed even apart from new material, and DBS was in any event entitled to reconsider the case after receiving substantial further evidence.

3. The 2018 letter, read as a whole, was not a clear, unambiguous and unqualified promise that the case would never be reopened. Even if it created a legitimate expectation against reopening absent further information, the further referral and full message transcripts met that condition. Departure from any expectation was also proportionate because MS could make representations, DBS had specialist expertise, and an independent appeal was available.

4. Barring is protective and preventative, not punitive. The relevant proportionality inquiry is whether an evidence-based assessment shows an unacceptable future risk of harm if the person undertakes regulated activity. It concerns both the likelihood of repetition and the foreseeable gravity of harm. DBS could rationally place weight on MS’s lack of insight, his disregard of safeguarding concerns, and his resumption of contact with AB.

5. DBS was not required to establish that AB felt overwhelmed or recognised grooming or harm. It could rationally conclude from the evidence that the intense adult-child relationship had caused harm and created a future risk, notwithstanding the absence of sexual contact or a finding of malevolent intent.

6. The reasons, read with the Barring Decision Process document, adequately explained the risk assessment, the indicators and counter-indicators, and why MS’s representations did not prevail. Any lack of fuller explanation for the change from the 2018 decision was not material.

• Upper Tribunal (Administrative Appeals Chamber): appeal from DBS’s final decision of 21 October 2020 to include MS in the Children’s Barred List. The appeal was dismissed and the DBS decision confirmed.