PC v Disclosure and Barring Service

An appeal against a barring decision is confined to material mistakes of law or fact on which the decision was based. The Upper Tribunal may consider evidence received on appeal and make its own factual findings, but it may not conduct a full merits review of whether barring is appropriate. That evaluative judgment belongs to the Disclosure and Barring Service.

The Tribunal may review the rationality and proportionality of the DBS’s risk assessment, while giving appropriate weight to its statutory expertise. Where the DBS has considered the relevant evidence, given rational reasons, and reached findings open to it on the balance of probabilities, the appeal must fail. The decision was confirmed because no material error of law or fact was established.

PC appealed against the DBS decision dated 9 November 2021 to include him on the Children’s and Adults’ Barred Lists under paragraphs 3 and 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. The decision followed findings that he attended work in a secure hospital while awaiting a COVID-19 test result and failed to wear personal protective equipment, thereby placing patients and colleagues at risk.

Permission to appeal was granted on grounds alleging material mistakes of fact, irrationality and disproportionality. The Upper Tribunal heard oral evidence and considered the evidence before the DBS together with evidence produced on appeal. The central questions were whether the DBS had made a material mistake of fact or law and whether its risk assessment and proportionality assessment were legally flawed.

1. Outcome. The appeal was dismissed. The DBS decision to include PC on both barred lists was confirmed. The Tribunal also made anonymity and non-disclosure directions under section 4(5) of the Safeguarding Vulnerable Groups Act 2006 and rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

2. Under section 4 of the 2006 Act, an appeal lies only on the ground that the DBS made a mistake of law or a mistake in a finding of fact on which the decision was based. The mistake must be material. The Upper Tribunal may consider all relevant evidence, including oral evidence unavailable to the DBS, and may make its own factual findings. It does not, however, conduct a full merits appeal.

3. The Tribunal applied PF v Disclosure and Barring Service [2020] UKUT 256 (AAC). It may interfere with factual findings where the DBS relied on inaccurate evidence, misunderstood the evidence, or made an unreasonable finding. It must give appropriate weight to specialist risk assessments engaging the DBS’s expertise. The burden on the DBS is to establish relevant conduct on the balance of probabilities; on appeal, the appellant must establish the material mistake.

4. The Tribunal rejected PC’s account concerning the timing and results of his COVID-19 tests. The contemporaneous records, witness accounts, interview evidence and surrounding circumstances supported the findings that he attended work while awaiting a test result and failed to wear PPE correctly. Those findings amounted to relevant conduct because the conduct placed patients and colleagues at risk of harm.

5. The DBS had considered the relevant evidence and representations, identified concerns in its risk assessment, considered counter-indicators including PC’s previous record and references, and gave rational reasons. The Tribunal therefore found no mistake of fact or law in the relevant-conduct findings.

6. The Upper Tribunal cannot reconsider the appropriateness of barring as a free-standing merits question. It may nevertheless examine whether the DBS’s risk assessment and proportionality assessment were irrational or disproportionate. Applying the approach in B v Independent Safeguarding Authority [2012] EWCA Civ 977, and the proportionality framework identified in R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621, the Tribunal gave appropriate weight to the DBS’s expert statutory role.

7. The DBS had rationally balanced the risk to vulnerable groups against the impact of barring on PC’s private life, employment prospects, earning potential and the possible stigma. The assessment was neither irrational nor disproportionate. The appeal therefore failed under section 4(5) of the Act.

1. Upper Tribunal (Administrative Appeals Chamber) — [2023] UKUT 309 (AAC): appeal dismissed and the DBS decision confirmed.
2. Disclosure and Barring Service — decision dated 9 November 2021 to include PC on the Children’s and Adults’ Barred Lists.