SV v DBS

DBS has an implied power to reopen a previous “no barring action” decision, including where no new referral or evidence has been received, because that power is necessary to fulfil its safeguarding functions under the Safeguarding Vulnerable Groups Act 2006. Its exercise remains subject to public law principles, including legitimate expectation and proportionality.

On an appeal under section 4, the Upper Tribunal reviews mistakes of law and fact on which the barring decision was based. It must not conduct a fresh merits assessment. DBS must assess evidence independently and critically, rather than adopt a referring employer’s conclusions. Materially flawed reasoning required remission for a new decision.

SV, a care assistant, was dismissed after allegations concerning neglect of nursing-home residents during a night shift. DBS initially decided to take no barring action, but later reopened the case and included SV in both barred lists.

SV appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006, arguing that DBS lacked power to reopen the case and that its barring decision contained errors of law and fact. The central issues were whether DBS could reopen the earlier decision, whether reopening was lawful in the circumstances, whether the barring decision was materially flawed, and whether the appropriate remedy was removal or remission.

1. Power to reopen. The statutory scheme imposed duties on DBS to maintain the barred lists, consider relevant information from any source, and include a person where the statutory criteria were met. Those duties were not disapplied merely because DBS had previously decided not to bar the person. The power to reopen a closed “no barring action” case was therefore implicit, including where DBS’s internal processes identified a possible error and no new evidence had emerged.
2. Legitimate expectation. The wording of DBS’s letter did not, on balance, amount to a clear, unambiguous and unqualified representation that SV would not be barred without further evidence. The panel nevertheless considered the further questions identified in Wood, [2011] EWHC 3256 (Admin). Protecting vulnerable adults from neglect was a legitimate public interest, and reopening was proportionate. The reopening therefore crossed the threshold for considering the barring decision on its merits within the statutory appeal framework.
3. Errors in the barring decision. DBS was entitled to consider the employer’s evidence but had to assess it independently and critically. It treated an inadequately explained description of unavailable CCTV footage as clear and detailed, drew an impermissible inference from another employee’s failure to challenge it, and wrongly treated SV’s acceptance that he had sat in a room as an admission that he had remained there throughout the night. Those errors infected findings about care and safety checks.
4. DBS also wrongly treated SV’s explanations about the call bell as inconsistent, attributed evidence to a witness that she had not given, and failed to assess another witness’s evidence with appropriate caution. The evidence did not support the finding that SV unplugged the call bell. There was also insufficient evidence that SV had supervisory responsibility for the agency carer.
5. These were material errors of law. Under section 4(6) of the 2006 Act, removal was appropriate only if it was the sole lawful outcome. Since that was not established, the case was remitted to DBS for a new decision. SV was to be removed from the barred lists pending redetermination under section 4(7)(b).

• Disclosure and Barring Service: DBS decided on 17 January 2019 to take no barring action, then reopened the case and issued a barring decision on 24 January 2020, placing SV on both barred lists.
• Upper Tribunal (Administrative Appeals Chamber): The appeal was allowed. DBS’s decision was held to contain material errors of law and the case was remitted under section 4(6)(b) of the Safeguarding Vulnerable Groups Act 2006.