MM v Disclosure and Barring Service

On an appeal under the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may correct mistakes of law or fact, but cannot substitute its own assessment of whether barring is appropriate. A long period without repeated offending is relevant, but does not by itself make barring irrational, unreasonable or disproportionate. The central issue is often the individual’s insight into the causes, impact and potential triggers of the past conduct, together with steps taken to manage future risk. Inclusion on the children’s barred list does not require proof of a sexual interest in children. The decision-maker must make an evidence-based assessment of risk to a person under 18, including a physically mature adolescent, and may infer a risk of crossing another protective boundary from demonstrated willingness to cross sexual, professional and social boundaries.

The appellant had been convicted in 1999 of two indecent assaults on adult male patients while working as a nurse. In 2022, the Disclosure and Barring Service included him on both the children’s and adults’ barred lists under Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. He appealed under section 4, arguing that the passage of nearly 23 years without further offending made the decisions irrational and disproportionate, and that inclusion on the children’s list was irrational because there was no evidence that he had a sexual interest in children.

The Upper Tribunal considered the limits of its appellate jurisdiction, the significance of subsequent oral evidence, the relevance of insight and remorse, and whether the DBS had a rational basis for assessing a risk to children. The central questions were whether the DBS had made a mistake of law or fact and whether its decisions could stand on the evidence.

1. Appeal dismissed. The DBS decisions were confirmed. They were not based on a mistake of fact and involved no error of law.

2. The Upper Tribunal’s jurisdiction under section 4 of the Safeguarding Vulnerable Groups Act 2006 is limited. It may challenge a decision for a mistake of law, including irrationality and a human-rights challenge, or for a mistake in a finding of fact on which the decision was based. It may not trespass on the DBS’s assessment of risk or appropriateness unless that assessment is legally or factually flawed. It may consider new evidence, but must not merely conduct its own evaluation of evidence and substitute different findings.

3. The passage of time without further relevant conduct is positive, but is not conclusive. It does not necessarily demonstrate reduced risk, particularly where the individual has not had an opportunity to work with vulnerable people. Insight may establish reduced risk where the individual understands what drove the conduct, identifies possible triggers, and demonstrates strategies or other measures for managing them. The DBS was entitled to find that the appellant’s incomplete insight and limited understanding of exploitation, power imbalance, consent and the impact on victims meant that the risk had not reduced to a safe level.

4. Proof of a sexual interest in children is not a condition of inclusion on the children’s barred list. The DBS had to assess the statutory risk of conduct which would, or would be likely to, endanger a child. Since “child” means a person under 18, the assessment properly included a physically mature adolescent. The appellant’s repeated sexual boundary violations, exploitation of opportunities in a position of trust, and inability to explain or manage his conduct provided a rational basis for concern that he might assault an under-18 person if overwhelmed by sexual desire.

5. The proportionality assessment required balancing public protection, including the potential gravity of harm, against the appellant’s interests and Article 8 rights. The DBS considered the impact of barring and alternative safeguards, and was entitled to conclude that those safeguards were insufficient.

• Disclosure and Barring Service: By final decision dated 17 February 2022, the DBS included the appellant on the children’s and adults’ barred lists.
• Upper Tribunal (Administrative Appeals Chamber): The appeal was refused and the DBS decisions were confirmed: [2023] UKUT 275 (AAC).