JA v Disclosure and Barring Service

On an appeal under Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may reconsider factual matters and hear oral evidence. A mistake of fact must be material to the decision, but the appeal is not confined to identifying a flaw in the decision-maker’s reasoning. DBS must prove, on the balance of probabilities, the relevant conduct on which barring depends. Findings may include a person’s intention, motive or state of mind. The Tribunal may direct removal only where, in light of the mistake, removal is the only lawful outcome. In assessing appropriateness, DBS must not draw broad adverse conclusions about character or future risk without sufficient evidential foundation.

The appellant appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006 against DBS’s decision of 4 December 2020 to include her in the Adults’ Barred List under paragraph 9 of Schedule 3. DBS relied on three alleged incidents involving a vulnerable adult in a care home. The appellant denied the allegations and challenged the factual findings and the absence of an interview before the decision.

The Children’s Barred List issue had lapsed after DBS removed the appellant from that list on review. The central issues were the scope of a section 4 appeal, the burden and standard of proof, the treatment of oral and written evidence, and whether DBS had made material mistakes of fact affecting the barring decision.

1. Appeal allowed. DBS was directed to remove the appellant from the Adults’ Barred List.
2. Section 4 does not impose a narrow appellate review confined to errors in DBS’s reasoning. The Upper Tribunal may consider factual matters for itself, particularly where it receives evidence not before DBS. The word “mistake” in section 4 requires a material error, namely one that made a material contribution to the decision. The reference to Henderson v Foxworth Investments Ltd was inappropriate in this context because that case concerned an appeal from a trial decision where the appellate court normally reviewed the lower court’s reasoning.
3. DBS may make decisions on paper, but it must act impartially and be satisfied on the balance of probabilities that relevant facts are proved. In an appeal defending a barring decision, DBS bears the burden of proving the relevant conduct capable of justifying inclusion. Both parties have a constructive role, and the burden may lie on either party in relation to facts within that party’s knowledge or control.
4. Findings of fact may include intention, motive, knowledge and other states of mind. DBS must address such matters at the fact-finding stage rather than only when assessing appropriateness. Findings relevant to appropriateness may also include facts which do not themselves constitute relevant conduct.
5. The Tribunal found that the appellant had spoken to the service user in ways which caused distress and created a foreseeable risk of emotional harm. It rejected findings that she had pushed the service user roughly, prevented her from finishing getting ready, refused to return her glasses, or intended to cause harm. The evidence showed a serious misjudgement in relation to one resident, not a sufficient basis for broader conclusions about the appellant’s character or propensity.
6. Although the conduct was plainly wrong, the evidence did not establish a sufficiently serious or continuing risk to justify barring. The appeal therefore succeeded on the ground that DBS’s decision was based on material mistakes of fact.

• Disclosure and Barring Service: On 4 December 2020, DBS included the appellant in the Adults’ Barred List under paragraph 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.
• Upper Tribunal (Administrative Appeals Chamber): The appeal was allowed on the ground of material mistakes of fact, and DBS was directed to remove the appellant from the Adults’ Barred List.