TM v Disclosure and Barring Service

An appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006 may succeed where the Disclosure and Barring Service gives inadequate reasons for treating inclusion in a barred list as proportionate. A bar aimed at protecting a specific class of vulnerable adults must be shown to be necessary despite its wider effect on other adults. The statutory inability to limit a bar by age does not itself make a blanket bar proportionate. The decision-maker should consider the likelihood of the person engaging in regulated activity with the particular class said to be at risk. Where an error of law is established, the Upper Tribunal should remit unless only one lawful decision is available.

The Appellant appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006 against the DBS decision notified on 12 May 2021 to include him in the Adults’ Barred List. He had been convicted of sexual and indecent-image offences involving children and had applied for voluntary work with vulnerable adults. He challenged the adequacy of the reasons, the evidential basis for finding a sexual interest in young adults, proportionality and procedural fairness. The central issue was whether DBS had adequately explained why a bar covering all vulnerable adults was proportionate when its reasoning principally identified a risk to vulnerable adults aged 18 or 19.

1. Appeal allowed. DBS had made an error of law by giving inadequate reasons for concluding that inclusion in the Adults’ Barred List was proportionate. The decision was set aside and the case remitted for a new decision.
2. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, an appeal may be brought on a mistake of law or fact, but not simply because the Upper Tribunal would reach a different view on appropriateness. A mistake must be capable of affecting the outcome. Inadequate reasons and disproportionate inclusion may constitute errors of law. Where an error is established, removal should be directed only if it is the sole lawful outcome; otherwise the matter should be remitted, as explained in Disclosure and Barring Service v AB [2021] EWCA Civ 1575.
3. DBS was entitled to find, on uncontested evidence, that the Appellant had a sexual interest in young adults. The absence of a proven criminal offence against a young adult did not compel the contrary conclusion.
4. However, a measure is proportionate only if it is appropriate and necessary to achieve its safeguarding objective. If the identified risk concerns a small class of vulnerable adults, DBS must explain why barring the person from regulated activity with all vulnerable adults is necessary to protect that class. The fact that the legislation does not permit an age-limited bar cannot by itself make an otherwise disproportionate wider bar proportionate. Relevant matters may include the likelihood of the person seeking regulated activity with the particular age group, any undertaking given, and information available through an enhanced DBS check.
5. Although the condition in paragraph 8(2)(b) of Schedule 3 was met in the sense that the Appellant might engage in regulated activity relating to vulnerable adults, it was unclear whether that condition was met in relation to vulnerable adults aged 18 or 19. DBS could reconsider all aspects of the risk assessment on remittal.
6. The procedural-fairness grounds failed. The Appellant had addressed the concern about his interest in young adults, and DBS was not legally obliged to obtain further agency information or an independent risk assessment. The Tribunal observed that DBS guidance might usefully recognise telephone discussions about written representations as a further circumstance in which oral representations are made, but this did not determine the appeal.

The Appellant was to be removed from the Adults’ Barred List pending DBS’s new decision.

• Disclosure and Barring Service: On 12 May 2021, DBS included the Appellant in the Adults’ Barred List under paragraph 8 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.
• Upper Tribunal (Administrative Appeals Chamber): The appeal was allowed. The DBS decision was set aside for error of law and remitted for a new decision.