AA v Disclosure and Barring Service

An appeal under Safeguarding Vulnerable Groups Act 2006 may challenge material mistakes in findings of fact as well as errors of law. The Upper Tribunal may make its own factual findings, including findings about an appellant’s state of mind or motive. The question whether barring is appropriate remains outside the ordinary fact-and-law jurisdiction, subject to the statutory appeal structure.

Relevant conduct is construed broadly and may consist of an omission. Even conduct amounting to relevant conduct does not automatically justify barring. The decision-maker must assess both sides of proportionality: the impact of barring, the likelihood of repetition, the likely seriousness of future harm, and whether less drastic measures could adequately address the risk.

The Appellant appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006 against the Disclosure and Barring Service’s decision of 19 March 2021 to include her in the adults’ and children’s barred lists. The decision followed complaints about her care of two service users, JC and EB.

The Upper Tribunal considered whether DBS had made material mistakes of fact or law, whether the conduct was relevant conduct under Schedule 3, and whether inclusion in either list was appropriate and proportionate. Permission to appeal had also raised the adequacy of the evidence concerning transferability of risk from adults to children.

Appeal allowed. DBS was directed to remove the Appellant from both barred lists.

1. Section 4 permits the Upper Tribunal to determine factual issues for itself. Its jurisdiction is not generally limited to deciding whether DBS reached a conclusion available on the evidence. A factual mistake is material if it would, or might, have made a difference to the barring decision. The statutory exclusion concerns the evaluative question whether inclusion is appropriate: Disclosure and Barring Service v AB [2021] EWCA Civ 1575; R (Royal College of Nursing) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin).
2. Findings of fact may include a failure to make an additional finding and may concern states of mind or motives. The Tribunal therefore had jurisdiction to find that the Appellant initially failed to reposition JC because she did not know how to assist, rather than because she acted recklessly or lacked empathy. That distinction was material to the risk assessment. The Tribunal did not consider that Disclosure and Barring Service v AB had overruled PF v Disclosure and Barring Service [2020] UKUT 256 (AAC).
3. Relevant conduct under paragraphs 4 and 10 of Schedule 3 is intended to have a broad and inclusive scope. It may arise from an omission. The Appellant’s failure to assist JC caused avoidable discomfort or put her at risk of harm. Giving EB tea rather than coffee, contrary to her wishes, was also capable of amounting to relevant conduct because restricting choice may cause emotional harm. Conduct may be relevant even where the appellant acted reasonably in the circumstances.
4. The appropriateness decision required a genuine proportionality assessment. DBS considered the impact of barring on the Appellant but did not assess the likely seriousness of consequences if she were not barred, including both the likelihood of repetition and the likely seriousness of future harm. Occasional carelessness in giving tea rather than coffee was unlikely to cause significant harm absent particular vulnerability or inadequate training. Less drastic measures, such as a warning or removal from regulated activity, also had to be considered.
5. The findings concerning JC could no longer support conclusions that the Appellant generally lacked empathy, was irresponsible, reckless or incompetent. The finding concerning EB did not make barring necessary and proportionate. Inclusion in either list could not lawfully be regarded as appropriate, so removal rather than remittal was directed.

• Upper Tribunal (Administrative Appeals Chamber): appeal against the DBS decision of 19 March 2021 allowed under section 4 of the Safeguarding Vulnerable Groups Act 2006; DBS directed to remove the Appellant from both barred lists.