PM v Disclosure and Barring Service

An appeal against inclusion in a barred list under the Safeguarding Vulnerable Groups Act 2006 lies only on a mistake of law or a mistake of fact on which the barring decision was based. The appropriateness of inclusion is not itself a question of law or fact for the Upper Tribunal.

A factual omission is material only if it could affect the outcome. Decision-makers need not record every favourable feature or contextual qualification where the decision does not depend on an absolute or invariable pattern of behaviour. Contemporaneous, corroborated and objectively plausible evidence may properly be preferred to later unsupported oral evidence.

PM appealed against the Disclosure and Barring Service decision dated 22 July 2021 to include him in the children’s and adults’ barred lists. The decision followed findings concerning earlier criminal matters, professional misconduct findings by the Nursing and Midwifery Council, and alleged conduct during PM’s probationary employment as a senior carer in 2020.

Permission to appeal was granted only on the arguable ground that mistakes of fact in the 2020 findings might have been material to the barring decision. The Upper Tribunal considered the contemporaneous documentary evidence and PM’s oral evidence at an oral hearing.

1. Appeal dismissed. The decision of the Disclosure and Barring Service to include PM in both barred lists was confirmed.
2. Under section 4(2) of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal’s jurisdiction was confined to mistakes of law or mistakes in findings of fact on which the decision was based. Section 4(3) excluded the question whether inclusion was appropriate as a question of law or fact.
3. The Tribunal assessed the evidence critically and realistically. It gave greater weight, where appropriate, to evidence corroborated by other material, close in time to the events, and objectively plausible. It was entitled to prefer contemporaneous probation-review records signed by PM over unsupported later evidence.
4. The incidents relied on by DBS were, in most cases, accepted as having occurred. The Tribunal found no material mistake in DBS characterising several interactions with vulnerable adults as insensitive, inappropriate or misjudged. PM’s lack of intention to upset the residents did not prevent the conduct from being relevant to that assessment.
5. DBS was not required to record every positive feature of PM’s work or to provide all possible context. The omission was not material because the barring decision did not depend on PM having behaved inappropriately on every occasion or on his manner having no positive aspects.
6. Some uncertainty about the precise words used in the Frank Sinatra incident did not establish a material mistake. Even a more qualified factual finding would still have constituted further evidence of insensitive or inappropriate conduct and would not have affected the outcome.
7. The sole permitted ground of appeal was therefore not made out, either because there was no factual mistake or because any mistake was immaterial.

1. Upper Tribunal (Administrative Appeals Chamber): permission to appeal was granted on 17 July 2023 on a limited factual-mistake ground. Following an oral hearing, the appeal was dismissed and the DBS decision dated 22 July 2021 was confirmed.