AA v The Disclosure and Barring Service

On an appeal under section 4(2)(b) of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may hear and assess oral evidence together with the written evidence considered by the Disclosure and Barring Service. It may make its own findings of primary fact and allow the appeal where satisfied, on the balance of probabilities, that the DBS was mistaken about whether the appellant committed the relevant act.

Physical contact during an attempt to fend off an aggressor does not necessarily amount to an intentional assault. The context, the appellant’s state of mind, available training and the quality and provenance of contemporaneous evidence are relevant. The question whether inclusion in a barred list is appropriate remains for the DBS, subject to the statutory appeal and remittal provisions.

The appellant appealed against the DBS decision of 6 April 2022 to include her in the children’s barred list. The DBS had found that she assaulted a child during an incident at a residential home and had threatened to hit him if he hit her.

Permission to appeal was granted on alleged mistakes of fact concerning the assault and threat, and on proportionality. The appellant gave oral evidence before the Upper Tribunal. The central issues were whether the DBS had made mistakes in those findings and, if so, whether the matter should be remitted for a fresh decision.

1. Appeal and jurisdiction. The appeal was allowed to the extent of remittal. Under section 4(2)(b) of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal could determine whether the DBS had made a mistake in a finding of fact on which its barring decision was based. It was entitled to assess the appellant’s oral evidence together with the documentary evidence and to make its own findings of primary fact.
2. Alleged assault. The DBS had mistakenly found that the appellant assaulted the child. The evidence established that her arm or arms connected with the child’s chest and shoulders while she was swinging them and attempting to fend him off. It did not establish an intention to hit him. The Tribunal rejected as unreliable the alleged statements by the child that she had hit him and the alleged admission to the acting assistant team manager. The neutral description of the arms “connecting” in the contemporaneous report did not amount to evidence of intentional hitting.
3. Alleged threat. The appellant did say that, if the child hit her, she would hit him back and that she was not afraid of him. In context, however, the statement was made while the child was threatening and attempting to reach her. It expressed, at most, an intention to defend herself in the face of imminent violence, rather than a future intention to assault him.
4. Remittal. The Tribunal did not determine proportionality because the matter was being remitted. The DBS was required to make its new decision on the findings that the appellant did not intend to hit the child; that her flailing arms connected with his chest and shoulders while she defended herself; that she made the statement about hitting back but with the meaning identified above; and that she lacked training in de-escalation, moving someone away, crisis handling or restraint. The appellant was to be removed from the barred list pending the new decision.

• Disclosure and Barring Service: On 6 April 2022, the DBS decided to include the appellant in the children’s barred list.
• Upper Tribunal (Administrative Appeals Chamber): The appeal was allowed to the extent of remittal. The DBS was directed to make a fresh decision on specified findings of fact.