Disclosure and Barring Service v JHB

An appeal under section 4 of the Safeguarding of Vulnerable Groups Act 2006 is not a rehearing of the merits of a barring decision. The Upper Tribunal may intervene only after identifying a legal error or a factual finding by the Disclosure and Barring Service which was wrong. It cannot substitute its own assessment merely because it would evaluate the same material differently.

Whether a person was capable of consenting is a factual issue. By contrast, the relevance and weight of facts when assessing risk and the appropriateness of barring are evaluative matters for the Disclosure and Barring Service. The tribunal must remain within the permitted grounds of appeal and act fairly if it proposes to rely on reasoning not put to the parties.

JHB had been convicted of a sexual offence against a 13-year-old child and was included in the children’s barred list. On his application for review, the Disclosure and Barring Service decided to retain him on that list and also to include him in the adults’ barred list. The decision relied on the conviction and three findings concerning further sexual conduct.

JHB appealed to the Upper Tribunal under section 4 of the Safeguarding of Vulnerable Groups Act 2006. The Upper Tribunal disagreed with two further findings, criticised the weight given to psychological risk assessments, made its own findings of fact, and remitted the matter to the Disclosure and Barring Service for a fresh decision.

The Disclosure and Barring Service appealed. The central issue was whether the Upper Tribunal had exceeded its statutory appellate jurisdiction by substituting its own factual and evaluative conclusions without first identifying a relevant error by the Disclosure and Barring Service.

1. Appeal allowed. The Upper Tribunal misunderstood the limits of its jurisdiction under section 4 of the Safeguarding of Vulnerable Groups Act 2006. Its function was to decide whether the Disclosure and Barring Service’s decision was flawed in law or fact, not to make the primary assessment of risk or of the appropriateness of barring. That assessment remained for the Disclosure and Barring Service: AB v Disclosure and Barring Service [2021] EWCA Civ 1575.

2. Whether victim 2 was too intoxicated to consent to intercourse was a finding of fact, rather than an evaluative judgment about risk. But the Upper Tribunal did not identify why the Disclosure and Barring Service’s finding was wrong. It reconsidered substantially the same material and substituted its own conclusion. A difference in the assessment of evidence does not establish a factual mistake. The material entitled the Disclosure and Barring Service to infer, on the balance of probabilities, that victim 2 could not consent.

3. The Tribunal also erred in treating the alleged lack of detail in finding 3 as making it irrelevant to barring. The significance and relevance of that conduct to safeguarding were evaluative matters for the specialist decision-maker, not factual findings which the Tribunal could revisit. Paragraph 13(1) of Schedule 3 required the Disclosure and Barring Service to consider the relevance of information it received.

4. The Tribunal had no power to reweigh the psychological reports merely because it preferred a different assessment from that of the Disclosure and Barring Service. It had identified no legal or factual error in the latter’s decision to give those reports limited weight.

5. If the Tribunal relied on its additional criticism of the Disclosure and Barring Service’s treatment of a retraction, it acted procedurally unfairly because that reasoning had not been put to the Service. In any event, permission under section 4 did not empower the Tribunal to enlarge the appeal beyond the grounds falling within section 4(2).

6. JHB’s appeal to the Upper Tribunal was remitted to that tribunal to be reheard.

• Court of Appeal (Civil Division): Allowed the Disclosure and Barring Service’s appeal and remitted JHB’s appeal to the Upper Tribunal for rehearing.

• Upper Tribunal (Administrative Appeals Chamber): In a decision authorised on 23 February 2022, found mistakes of law and fact in the Disclosure and Barring Service’s decision, made findings of fact, and remitted the matter to the Service for a new decision. That approach was held unlawful by the Court of Appeal.