OR v DBS

For inclusion on an adults’ barred list, transferability does not require proof that the person has a sexual attraction to vulnerable adults or has committed relevant conduct against them. The material question is whether the evidence shows a willingness to exploit vulnerability and cross ethical boundaries, creating an unacceptable risk of harm to vulnerable adults.

DBS reasons need not be exhaustive or elegant. They must adequately explain why representations did not succeed and enable the individual to decide whether to appeal. The Upper Tribunal cannot reconsider DBS’s assessment of appropriateness unless it identifies a material error of law or fact under the Safeguarding Vulnerable Groups Act 2006.

The appellant, formerly a medical doctor, was convicted of offences involving images of child sexual abuse and extreme pornography. DBS placed him on both the children’s and adults’ barred lists in its final decision letter of 12 May 2021.

He did not challenge his inclusion on the children’s barred list. He appealed his inclusion on the adults’ barred list, contending that there was no evidential basis for transferability from conduct concerning children to vulnerable adults and that DBS had given inadequate reasons. Permission was granted only on the adequacy-of-reasons ground.

The central issue was whether DBS had adequately explained why the appellant’s conduct and risk were transferable to regulated activity with vulnerable adults.

1. Appeal dismissed. DBS’s decision to include the appellant on both barred lists was confirmed. The Upper Tribunal found no material mistake of law or fact.

2. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Tribunal may not substitute its assessment of whether inclusion is appropriate. It may intervene only for a mistake of law or a material mistake of fact. DBS has the protective, forward-looking task of assessing risk to those who may be harmed.

3. The proper approach to transferability is not literal. DBS did not have to establish a sexual interest in vulnerable adults, or that the appellant had harmed a vulnerable adult. The relevant question was whether his conduct demonstrated a willingness to exploit vulnerability and transgress ethical boundaries, creating an unacceptable risk that he might exploit vulnerable adults in his care. A sexual attraction by itself does not create that risk.

4. DBS had misunderstood the test to the extent that its letter relied on adult-like physical attributes in some images. That was an error of law. It was not material because it set too high a threshold for barring and the result would have been the same under the correct test.

5. DBS’s alternative reasoning was adequate. It was entitled to rely on the prolonged access to child-abuse images, the pursuit of increasingly extreme material, and the appellant’s willingness to cross boundaries. It was also entitled to give limited weight to mitigation and a low-risk therapeutic assessment while making its own protective risk assessment. The reasons sufficiently explained why the representations did not displace inclusion on the adults’ barred list, meeting the standard in Khakh v Independent Safeguarding Authority (now the Disclosure and Barring Service) [2012] EWCA Civ 1341.

• Upper Tribunal (Administrative Appeals Chamber): Appeal from DBS’s final decision letter dated 12 May 2021. The Tribunal dismissed the appeal and confirmed the decision to include the appellant on the adults’ and children’s barred lists.