EB v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may determine disputed facts for itself. Where it makes materially different findings from the Disclosure and Barring Service, it may find a mistake of fact without first identifying a defect in the Service’s reasoning.

The statutory exclusion of the assessment of appropriateness does not exclude findings as to relevant conduct, intention, recklessness, or the existence of a risk of harm. The statutory definitions of relevant conduct require a strict approach, but the separate assessment of whether barring is appropriate supplies the necessary flexibility.

A direction to remove a person from a barred list is available only where removal is the sole lawful decision on the facts found.

The appellant, a waking-night support worker at a children’s home, was summarily dismissed after allegations concerning her care of a vulnerable child, KK. The employer referred her to the Disclosure and Barring Service, which included her in both the Children’s and Adults’ Barred Lists.

She appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006, alleging factual errors. The Tribunal heard oral evidence from the appellant and supporting witnesses. It had to decide the scope of its fact-finding jurisdiction and whether the Service’s findings on the two alleged incidents were mistaken and material.

1. Appeal allowed. The Tribunal directed the Disclosure and Barring Service to remove the appellant from both barred lists.

2. Section 4 permits the Tribunal to make its own findings of fact when resolving a factual appeal. A material difference between those findings and the Service’s findings is a mistake of fact for section 4(2)(b). The Tribunal need not first identify an error in the Service’s reasoning, although it must explain why it reaches a different factual conclusion.

3. Section 4(3) reserves the evaluative assessment of appropriateness to the Service. It does not prevent the Tribunal from deciding whether conduct was relevant conduct, whether it endangered a child, or the actor’s state of mind. A strict construction of relevant conduct is appropriate because the appropriateness assessment supplies flexibility.

4. On the first allegation, the appellant had wrongly disagreed with a colleague in front of KK. That created a risk of emotional harm and was relevant conduct under paragraph 4(2)(c) of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. However, she had intervened to stop an inappropriate disruption of KK’s routine, had not shouted, and had not improperly denied him a genuine choice of carer. The isolated lapse could not lawfully justify barring.

5. On the second allegation, the Tribunal rejected the finding that the appellant forced KK to drink or prevented him from regurgitating. The more probable explanation was that she appropriately encouraged a thirsty and vulnerable child to take liquid. The Service had also failed properly to weigh relevant character evidence and had treated the appellant’s accounts of colleagues’ conduct as inherently malicious.

6. Although relevant conduct was established on the first allegation, no reasonable decision-maker could regard barring as appropriate on the facts found. Removal was therefore the only lawful outcome under section 4(6)(a).

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal from the Disclosure and Barring Service’s decision of 9 November 2020 and directed removal from both barred lists.
• Disclosure and Barring Service: Included the appellant in the Children’s Barred List and Adults’ Barred List following an employer referral.