AD v Disclosure and Barring Service

On an appeal under Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal must confirm a barring decision unless the Disclosure and Barring Service made a material mistake of fact or law. The statutory assessment of whether inclusion is appropriate remains for the DBS, subject to review for legal error, including irrationality or disproportionality.

Conduct must be assessed as a whole. Conduct that creates a risk of emotional, psychological or physical harm to a child may be relevant conduct even if individual sub-findings are not independently decisive. The DBS may rationally depart from an expert risk assessment if it gives sufficient reasons and evaluates the evidence as a whole. Appropriate weight is given to the DBS’s statutory safeguarding expertise when assessing future risk and proportionality.

AD v Disclosure and Barring Service concerned an appeal against DBS decisions made in May 2020 and April 2021. The DBS included AD on the Children’s and Adults’ Barred Lists, and later declined to remove him following a review under paragraph 18A of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.

The decisions followed findings that AD, while working with a vulnerable child, had failed to maintain professional boundaries, permitted exposure to pornography, and failed to report safeguarding incidents. AD challenged the findings, the assessment of future risk, the DBS’s treatment of an expert psychosexual report, and the proportionality of continued inclusion on both lists.

The central issue was whether the DBS had made a material mistake of fact or law in including and retaining AD on the barred lists.

1. Appeal dismissed. The DBS made no material mistake of fact or law in its original decision to include AD on the Children’s and Adults’ Barred Lists, or in its later decision not to remove him. The decisions were therefore confirmed under section 4(5) of the Safeguarding Vulnerable Groups Act 2006.

2. The tribunal’s role was not to reconsider the merits of whether barring was appropriate. Although it could determine factual and legal error, including irrationality and disproportionality, the assessment of future safeguarding risk and appropriateness was principally for the DBS as the statutory expert body.

3. The DBS was entitled to find that AD’s conduct amounted to relevant conduct in relation to a child. The findings had to be read cumulatively. AD’s failure to maintain boundaries, inappropriate attachment, exposure of the child to pornography, and failures to report significant incidents were capable of causing, or risking, emotional, psychological or physical harm. Any possible error concerning isolated sub-findings would not have been material to the five overarching findings.

4. The challenged factual findings were reasonably open to the DBS on the evidence. Descriptions such as an unhealthy level of caring, preoccupation and risk to the child’s treatment did not disclose a material factual or legal error. The precise motivation for AD’s failure to report safeguarding incidents was not material to the decisions.

5. The DBS had considered the expert report and gave sufficient, rational reasons for not accepting it as determinative of future risk. It could not rationally treat AD’s voluntary therapy as adverse to him. However, it could take account of the report’s indication that therapy was continuing to develop self-awareness, its limited focus on sexual offending, and the other evidence of AD’s past conduct. It was entitled to conclude in 2021 that insufficient time had passed to demonstrate sustained behavioural change.

6. The assessment that similar boundary and attachment concerns could arise in regulated activity with vulnerable adults was rational. Inclusion on both lists was a proportionate safeguarding measure at the relevant dates, notwithstanding the interference with AD’s Article 8 rights.

The tribunal added, without deciding a current merits review, that a later review should consider the favourable further expert evidence, AD’s changed circumstances and the extended period without further incident. Absent further relevant conduct, it expected a future decision to remove him from both lists.

• Upper Tribunal (Administrative Appeals Chamber): dismissed AD’s appeal and confirmed the DBS decisions to include and retain him on both barred lists: [2023] UKUT 280 (AAC).
• Disclosure and Barring Service: included AD on the Children’s and Adults’ Barred Lists in May 2020 and, following a paragraph 18A review, declined to remove him in April 2021.