S.M. v The Disclosure and Barring Service

Neither the Disclosure and Barring Service nor the Upper Tribunal has power under the Safeguarding Vulnerable Groups Act 2006 to remove a person from a barred list retrospectively. The statutory scheme is forward-looking, and legislation is presumed not to operate retrospectively unless clear words provide otherwise. Retrospective removal would also undermine the criminal liability created while a person was included in a barred list. The Upper Tribunal may consider a challenge concerning the effective date of removal where the substance of the decision is that removal was refused for an earlier period, but such a challenge has no realistic prospect of establishing retrospective removal.

The applicant had been included in both the Adults’ Barred List and the Children’s Barred List by a DBS decision dated 26 October 2021. Following a review under paragraph 18A of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006, the DBS removed him from both lists with effect from 28 July 2022. He maintained that removal should have taken effect from the date of his original inclusion and applied for permission to appeal. The Upper Tribunal considered both the jurisdictional objection and the central question whether removal from a barred list could have retrospective effect.

1. Jurisdiction. The Upper Tribunal rejected the DBS’s late technical objections. The original decision and the later paragraph 18A decision could be considered in the context of the application. In substance, the later decision involved a refusal to remove the applicant from the lists for a period earlier than 28 July 2022, engaging the appellate jurisdiction.
2. No retrospective removal. The wording of section 4 of the Safeguarding Vulnerable Groups Act 2006, including section 4(6), gives the Upper Tribunal power to direct removal or remit the matter, but contains no power to remove an individual retrospectively or to direct the DBS to do so. The statutory presumption against retrospectivity therefore applied: the absence of words preventing retrospective effect did not establish the necessary power.
3. The same forward-looking interpretation was supported by the Upper Tribunal authorities, including AKM v DBS, [2014] UKUT 66 (AAC), MR v DBS, [2015] UKUT 5 (AAC), and DF v DBS, [2015] UKUT 199 (AAC). The reasoning in NI v DBS, [2017] UKUT 35 (AAC), although not binding, remained sound.
4. The interpretation was reinforced by section 7. While a person remained on a barred list, engaging in the relevant regulated activity could constitute a criminal offence. Retrospective removal could undermine convictions and make the outcome depend on whether a prosecution concluded before or after the later review.
5. The applicant’s concerns about employment consequences, the wording of the DBS letter, and the one-day discrepancy between the decision date and the letter date did not establish a retrospective power. The proposed appeal had no realistic prospect of success. Permission to appeal was refused.

• Disclosure and Barring Service: On 26 October 2021 the DBS included the applicant in both barred lists. On review under paragraph 18A of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006, it removed him with effect from 28 July 2022.
• Upper Tribunal (Administrative Appeals Chamber): The application for permission to appeal was refused on 11 April 2023. The Tribunal rejected the proposed retrospective removal of the applicant’s name.