Patricia Kihembo v Disclosure and Barring Service

On an appeal against a barring decision, the Upper Tribunal must identify an actual mistake of law or material mistake of fact. A mere disagreement with the Disclosure and Barring Service’s evaluation of substantially the same evidence is insufficient. The jurisdiction is not confined to irrationality, and the tribunal may consider new and oral evidence.

If a mistake is established, the tribunal should remit the question of whether barring remains appropriate unless removal is the only lawful decision. A tribunal reverses the burden of proof if it presumes that a complainant with mental capacity is credible and requires the individual concerned to disprove the allegation. The allegation must be established on the balance of probabilities.

The Disclosure and Barring Service included a live-in carer in the adults’ and children’s barred lists after finding that she had repeatedly assaulted a physically vulnerable service user over three months. The Upper Tribunal heard oral evidence. It found that an assault had occurred but rejected the alleged three-month course of conduct as unproved. It nevertheless confirmed both barring decisions.

The carer appealed on points of law. The Disclosure and Barring Service conceded that the Upper Tribunal should have remitted the matter after materially departing from its factual findings. The remaining issues included whether removal was the only lawful outcome and whether the Upper Tribunal had reversed the burden of proof when assessing the alleged single incident.

1. Appeal allowed and matter remitted. The Upper Tribunal had materially rejected the Disclosure and Barring Service’s finding of repeated assaults over three months. It therefore erred by confirming the barring decisions instead of exercising its remedial powers under section 4(6) of the Safeguarding Vulnerable Groups Act 2006.

2. Following DBS v AB, removal may be directed only where it is the sole decision that the Disclosure and Barring Service could lawfully reach. Otherwise, the issue of whether continued inclusion is appropriate must be remitted to that specialist decision-maker. There remained a case capable of supporting a finding that a single assault occurred. The court therefore refused to direct immediate removal from the barred lists.

3. The account in PF v DBS [2020] UKUT 256 (AAC) of the Upper Tribunal’s mistake-of-fact jurisdiction remained good law. The tribunal must identify an actual mistake and cannot intervene merely because it would have evaluated substantially the same material differently. It may, however, consider all the evidence before it, including new oral evidence. Its jurisdiction has not been reduced to review for irrationality. DBS v JHB [2023] EWCA Civ 982 authoritatively clarified, but did not displace, those principles.

4. The Upper Tribunal reversed the burden of proof when it asked why it should not believe a mentally competent complainant. That reasoning rested on a flawed premise about capacity and credibility and effectively required the appellant to prove her innocence. The alleged assault had instead to be established on the balance of probabilities. The tribunal also failed convincingly to explain why the developing nature of the complainant’s account defeated the allegation of a sustained course of assaults but left the single-incident allegation intact.

5. The alleged single incident was to be reconsidered afresh by a Disclosure and Barring Service decision-maker with no previous involvement. The Upper Tribunal’s favourable finding that the three-month course of conduct was unproved was to remain binding. Reopening the entire case more than eight years after the disputed events would be unfair and oppressive. If the single incident is proved, the new decision-maker must consider both risk and the passage of time when deciding whether continued barring is appropriate.

1. Court of Appeal (Civil Division): The appeal was allowed on Grounds 1 and 3. The alleged single incident was remitted for fresh consideration by a new Disclosure and Barring Service decision-maker. The Upper Tribunal’s finding that the alleged three-month course of conduct was unproved remained binding.

2. Upper Tribunal (Administrative Appeals Chamber): On 22 June 2022, the tribunal dismissed the appeals and confirmed both barring decisions. It found that an assault occurred but that repeated assaults over three months had not been proved.

3. Disclosure and Barring Service: Decisions dated 2 January and 23 April 2020 included the appellant respectively in the adults’ and children’s barred lists.