JO v Disclosure and Barring Service

An appeal against a barring decision under the Safeguarding Vulnerable Groups Act 2006 is confined to material mistakes of law or fact. The Upper Tribunal may make its own factual findings, but it must leave the assessment of whether barring is appropriate to the DBS, subject to review for legal error, irrationality or disproportionality. The DBS bears the burden of proving relevant conduct on the balance of probabilities. Serious allegations do not create a higher standard of proof, although the cogency and weight of the evidence must be assessed carefully. Where material factual mistakes affected the barring decision, the proper course is ordinarily remission to the DBS for a fresh appropriateness and proportionality decision.

JO appealed against the DBS decision of 29 October 2021 to include her in the Adults’ Barred List under paragraph 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. The DBS had found that she instructed carers to withhold food or water from residents receiving end-of-life care and that she had restricted residents’ choices, intimidated residents and spoken to them inappropriately.

The Upper Tribunal proceeded in her absence. The central issues were whether the DBS had made material mistakes of law or fact and, if so, whether the matter should be remitted or the listing removed.

1. Outcome. The appeal was allowed in part. There was no mistake of law, but there were material mistakes of fact in the findings concerning alleged withholding of food or water, food choices and seating choices. The case was remitted to the DBS to decide afresh whether barring remained appropriate and proportionate on the conduct findings upheld.
2. Jurisdiction and fact-finding. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may interfere only for a mistake of law or a material mistake in a finding of fact on which the decision was based. It may consider all the evidence and make its own findings, but may not determine the ultimate appropriateness of inclusion as a merits question. The DBS’s specialist assessment of risk and appropriateness must receive appropriate weight.
3. Findings. The evidence did not establish, on the balance of probabilities, that JO had instructed carers to withhold food or water. The evidence was largely hearsay and unspecified, and the only positive account was a mistaken interpretation of advice about choking and swallowing. Nor did the evidence establish that she deliberately or recklessly restricted food, milk or seating choices. Those findings were material mistakes.
4. The finding that JO repeatedly told residents to shut up, told them to return to their rooms, intimidated them and made them uncomfortable in their home was supported by consistent and corroborated evidence. Those findings constituted relevant conduct and were confirmed.
5. The DBS had not reversed the burden of proof. It was required to decide whether the allegations were proved, but the evidence and weight given to character material were matters of factual assessment. There is one standard of proof: the balance of probabilities. Seriousness affects the assessment of probability and evidential weight, not the standard itself.
6. The DBS was not required to pursue every reasonable line of enquiry. It had to act rationally and in good faith. The Tribunal nevertheless observed that future decisions would benefit from explaining whether reasonable steps had been taken to obtain evidence both supporting and undermining the case.

• Upper Tribunal (Administrative Appeals Chamber): appeal from the DBS decision of 29 October 2021. The appeal was allowed in part and the matter remitted for a fresh decision.