IE v Disclosure and Barring Service

On an appeal under Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may consider all the evidence, including fresh oral evidence, when deciding whether the Disclosure and Barring Service made a material factual mistake. It may make its own factual findings, but it cannot reconsider for itself whether inclusion on a barred list is appropriate.

A factual error does not justify interference unless it made a material contribution to the barring decision. The Disclosure and Barring Service is not generally obliged to pursue every possible line of inquiry. It must act rationally and in good faith on sufficient available evidence. Where established relevant conduct shows serious abuse of trust and a risk of harm to vulnerable adults, a barring decision may be proportionate despite the impact on the individual’s Article 8 rights.

IE v Disclosure and Barring Service concerned an appeal against the Disclosure and Barring Service’s decision of 18 August 2020 to place IE, a senior support worker, on the Adults’ Barred List under paragraph 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.

The DBS found nine allegations of controlling and harmful conduct towards vulnerable adult residents proved. IE challenged the factual findings, the adequacy of the employer’s investigation, and the rationality and proportionality of the barring decision. The Upper Tribunal heard fresh oral evidence from IE and considered the documentary evidence available to the DBS.

The central issues were whether the DBS had made material errors of fact or law and whether the decision could lawfully stand notwithstanding errors in three of the nine factual findings.

1. Appeal dismissed. The Tribunal confirmed the DBS decision. Although the DBS had made factual mistakes concerning three allegations, those mistakes were not material. The remaining six allegations, including the most serious conduct, were proved on the balance of probabilities. The DBS would inevitably have made the same barring decision on those findings alone.

2. Applying PF v Disclosure and Barring Service [2020] UKUT 256 (AAC), the Tribunal could consider all the evidence, including evidence unavailable to the DBS, and make fresh factual findings. It did not defer to the DBS on factual matters, although specialist risk assessments engaged DBS expertise. IE was not a reliable or credible witness. The multiple accounts of former colleagues, including accounts from witnesses whom IE regarded as supportive, provided sufficiently consistent and corroborative evidence of controlling and harmful conduct.

3. The six established allegations constituted relevant conduct under paragraphs 9 and 10 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. The conduct caused, or was likely to cause, emotional or psychological harm to vulnerable adults. In particular, exploiting a resident’s fear of cigarette lighters was serious harmful conduct.

4. The DBS was entitled to decide on sufficient available evidence even though the employer’s disciplinary investigation was incomplete and other potential evidence had not been obtained. There was no general duty on the DBS or employer to pursue all reasonable lines of inquiry. The relevant public law obligation was to act rationally and in good faith. The Tribunal added that it would assist in future cases if the DBS made clear the reasonable steps taken to obtain evidence both for and against the proposed barring.

5. Following Disclosure and Barring Service v AB [2021] EWCA Civ 157, the statutory assessment of whether listing is appropriate belongs to the DBS. The Tribunal could review irrationality and proportionality, but not substitute its own assessment of risk or appropriateness. The decision was rational and proportionate: the conduct was a serious abuse of trust, IE showed no insight or remorse, no less restrictive protective measure was available, and safeguarding vulnerable adults and public confidence justified the Article 8 interference.

• Upper Tribunal (Administrative Appeals Chamber): Appeal dismissed and the DBS decision confirmed: [2023] UKUT 310 (AAC).
• Disclosure and Barring Service: On 18 August 2020, decided to include IE in the Adults’ Barred List under paragraph 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.