Disclosure and Barring Service v RI

Under section 4(2)(b) of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may find that the Disclosure and Barring Service made a material mistake of fact where relevant oral evidence, assessed with the documentary evidence as a whole, establishes that the appellant did not commit the alleged act. The appellant need not identify a separate, granular error or introduce a previously undisclosed fact.

The Tribunal must not simply substitute its evaluation where it has substantially the same evidence as the DBS. That limitation does not apply where the appellant gives relevant oral evidence which the Tribunal can assess through cross-examination. Challenges which merely seek to reopen the Tribunal’s factual evaluation do not disclose an error of law.

RI, a support worker for vulnerable adults, was included in the Adults’ Barred List after the Disclosure and Barring Service found, on the balance of probabilities, that she had stolen money from a service user in her care.

The Upper Tribunal heard RI give oral evidence, assessed her credibility, and found as a fact that she had not stolen money. It held that the DBS had made a material mistake of fact and directed that RI’s name be removed from the list.

The DBS appealed. Its principal contention was that the Upper Tribunal had impermissibly substituted its own view of substantially the same evidence, rather than identifying a mistake of fact within section 4(2)(b) of the Safeguarding Vulnerable Groups Act 2006.

Decision

1. The Court unanimously dismissed the DBS’s appeal. The Upper Tribunal had jurisdiction to find a material mistake of fact and to direct RI’s removal from the Adults’ Barred List.

2. Section 4(2)(b) of the Safeguarding Vulnerable Groups Act 2006 permits an appellant to contend that the DBS was mistaken in finding that the appellant committed the relevant act. The statutory language does not require a separate or more granular factual mistake. Parliament contemplated that the Upper Tribunal could hear an appellant say that they did not do the act, evaluate that evidence with all the other evidence, and allow the appeal if persuaded on the balance of probabilities.

3. The Tribunal could assess RI’s oral evidence, including how it stood up to cross-examination, even though she substantially repeated her written denial. That evidence was relevant and was not before the DBS when it made its paper-based decision. The Tribunal was therefore entitled to make its own findings of primary fact on the evidence as a whole. The approach in PF v DBS, [2020] UK UT 256 (AAC), remained good law.

4. Disclosure and Barring Service v JHB, [2023] EWCA Civ 982, was confined to cases where the Upper Tribunal has the same, or materially the same, evidence as the DBS, or receives no oral evidence relevant to whether the alleged act was committed. In that situation, the Tribunal cannot merely substitute its factual assessment. It did not govern this appeal.

5. Grounds 2 and 3 were attempts to reopen the Upper Tribunal’s factual assessment. The possibility that others had access to the service user’s finances was not material to the Tribunal’s primary conclusion. Nor did the Tribunal’s failure expressly to mention every item of evidence show that it had failed to consider it. Its findings were not vitiated by an error of law.

6. As the DBS’s decision rested solely on the theft finding, and no other basis for listing RI had been advanced, the direction for removal was permissible under section 4(6)(a), consistently with AB v DBS, [2021] EWCA Civ 1575.

1. Court of Appeal (Civil Division) — dismissed the DBS appeal and upheld the Upper Tribunal’s direction that RI be removed from the Adults’ Barred List: [2024] EWCA Civ 95.

2. Upper Tribunal (Administrative Appeals Chamber) — on 18 May 2022, allowed RI’s appeal, found that the DBS had made a mistake of fact in finding theft, and directed removal from the list.

3. Disclosure and Barring Service — on 25 March 2020, decided to include RI in the Adults’ Barred List.