DJB v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may intervene only for an error of law or a factual error on which the barring decision was based. A factual error that did not affect the decision is immaterial.

Failure to disclose sexual-offence cautions concerning a person given access to a foster carer’s home, coupled with breaches of safeguarding expectations, could properly support a finding of inadequate safeguarding. In that context, inclusion in the children’s and adults’ barred lists was not disproportionate in law.

DJB appealed against the Disclosure and Barring Service’s decision of 23 March 2023 to place her on both barred lists. The decision followed findings that she had failed to disclose her partner’s sexual-offence cautions, had been deceptive about the relationship and overnight stays, and had failed adequately to safeguard her foster child.

DJB challenged the factual findings and contended that barring was disproportionate. The central issue was whether the DBS had made an error of law or a material factual error within section 4 of the Safeguarding Vulnerable Groups Act 2006.

1. Appeal dismissed. The Upper Tribunal confirmed the DBS decision to include DJB in the children’s and adults’ barred lists.

2. Section 4(2) of the Safeguarding Vulnerable Groups Act 2006 confined the appeal to an error of law or a factual error on which the decision was based. The statutory assessment of whether inclusion was appropriate was not itself a question of law or fact under section 4(3).

3. The DBS had not made a material error in finding that DJB failed to disclose her partner’s sexual-offence cautions. Although it inaccurately described cautions as convictions, that error could not have affected the safeguarding assessment. The tribunal also found that DJB had, at least, deliberately avoided confirming what she suspected about the cautions.

4. The DBS mistakenly referred to a written statement of expectations signed after some relevant events. That error was immaterial because equivalent safeguarding expectations had already been established through conversations and communications. The tribunal upheld findings that DJB concealed the renewed relationship, breached the restriction on overnight stays, and was less than candid about the cautions.

5. Those failures could properly support the conclusion that DJB had not sufficiently safeguarded the foster child. Encouraging checks on her partner did not substitute for disclosing information which was highly relevant to the child’s safety. A further finding that DJB considered only herself was erroneous, but was not material.

6. Given the core findings, particularly the non-disclosure of sexual-offence cautions concerning a person with access to a home containing a foster child, barring was not disproportionate in law.

• Upper Tribunal (Administrative Appeals Chamber): dismissed DJB’s appeal and confirmed the DBS decision.

• Disclosure and Barring Service: on 23 March 2023 decided to include DJB in the children’s and adults’ barred lists.