MG v DBS

An appeal against a barring decision is confined to mistakes of law or findings of fact on which the decision was based. Whether inclusion on a barred list is appropriate is not itself a question of law or fact. The Upper Tribunal may intervene where the decision is irrational, but it must not substitute its own assessment of risk or appropriateness.

DBS must give intelligible reasons sufficient to explain why representations failed; it need not address every argument or reproduce its entire balancing exercise. Risk assessment is prospective and does not require proof that harm is more likely than not. DBS may infer risk to persons under 18 from exploitative conduct towards a vulnerable young adult, without evidence of a specific sexual attraction to children.

MG was convicted of sexual assault contrary to section 3 of the Sexual Offences Act 2003 and subsequently included by DBS on the Children’s and Adults’ Barred Lists under Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.

He appealed under section 4 of the 2006 Act, alleging inadequate reasons, irrationality, failure to follow DBS’s structured judgment process, and failure to give proper weight to a Pre-Sentence Report stating that there was no reason to assess him as posing a risk of serious harm to children. The central questions were whether DBS had made a material mistake of law or fact and whether the decision to include him on the lists was irrational.

1. Appeal dismissed. DBS had made no mistake of law or fact. Its barring decision was confirmed.

2. Section 4 of the Safeguarding Vulnerable Groups Act 2006 gives the Upper Tribunal a limited jurisdiction. It may correct mistakes of law and findings of fact on which the decision was based. The statutory question whether inclusion is appropriate is excluded as a question of law or fact. A rationality challenge must therefore meet the stringent Wednesbury standard. The assessment of risk and appropriateness remains for DBS.

3. DBS gave adequate reasons. Applying Khakh v Independent Safeguarding Authority [2012] EWCA Civ1341, it was sufficient that MG could understand the basic findings and why the matters advanced in mitigation did not outweigh the seriousness of the offence, his exploitation of the victim’s vulnerability, and the continuing risk. DBS did not have to explain every aspect of its evaluative process in detail.

4. The reasoning concerning transferability of risk to children was not irrational. A child under the 2006 Act is anyone under 18. DBS did not need to establish a sexual preference for pre-pubescent or pubescent children. It could rely on the demonstrated willingness to exploit vulnerability, including incapacity, youth, subordination and lack of ability to object or recall the assault.

5. The Tribunal distinguished findings of fact from risk assessment and appropriateness. Facts required assessment on the balance of probabilities. Risk assessment did not require DBS to conclude that future harm was more likely than not. It required identification of potential risk, assessment of its likelihood and consideration of the gravity of the consequences.

6. Although DBS’s structured judgment form used a different concept of children in its predispositional factors, the form and Final Decision Letter had to be read together. The recorded concerns about entitlement, exploitation and lack of empathy adequately supported inclusion on the Children’s Barred List.

7. DBS was not bound by the Probation Service’s assessment. The Pre-Sentence Report had a different purpose, used a different concept of serious harm, and used an uncertain definition of children. DBS had to exercise its own statutory judgment.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and confirmed DBS’s decision of 26 July 2019.