PQ v The Disclosure and Barring Service

An appeal against inclusion on a barred list is confined by Safeguarding Vulnerable Groups Act 2006 to material errors of law or fact. The tribunal cannot conduct a full merits review or reconsider the DBS’s statutory judgment that barring is appropriate.

The DBS may rely on hearsay. The question is its weight, assessed within a protective and forward-looking safeguarding jurisdiction. Where oral evidence is given on appeal, the Upper Tribunal may assess it with the written evidence and make primary findings of fact.

A material error in one allegation does not require remittal where the remaining, sustainable findings independently support the barring decision and no realistic different outcome is possible.

PQ, a teaching assistant placed at three schools during 2022, appealed against the DBS’s decision of 24 July 2023 to include him on the Children’s Barred List. The decision relied on six safeguarding allegations concerning professional boundaries, contact with female pupils and physical contact.

PQ contended that the evidence was insufficient, the process unfair and the decision disproportionate. He gave oral evidence before the Upper Tribunal. The tribunal found that one allegation, concerning advice allegedly given to a pupil about concealing information from her parents, involved a material mistake of fact. It rejected his challenges to the other material findings.

The central issue was whether that error, or any asserted legal error, required interference with the DBS barring decision under Safeguarding Vulnerable Groups Act 2006.

1. Appeal dismissed. The Upper Tribunal confirmed the DBS decision. Under section 4(5) of the Safeguarding Vulnerable Groups Act 2006, it had to do so unless the DBS had made a material mistake of fact or an error of law.

2. The appeal was not a full merits review. Section 4 confines it to mistakes of law and material mistakes of fact. The statutory assessment of whether it is appropriate to include a person on a barred list is not a question of law or fact and is therefore not appealable.

3. The DBS was entitled to use hearsay evidence. Safeguarding barring is protective and forward-looking, rather than criminal, prosecutorial or adjudicatory. The issue was the weight of the evidence. Having heard PQ’s oral evidence, the tribunal assessed it with the written material and made its own findings of primary fact.

4. The DBS process was fair. PQ received the evidence on which the DBS proposed to rely with its minded-to-bar letter, made detailed written representations, and those representations were considered. The statutory scheme did not require the DBS itself to hold an oral hearing.

5. The tribunal found Allegation 2 unsupported on the balance of probabilities. It consisted of incomplete, second- or third-hand hearsay, and was contradicted by evidence supporting PQ’s account. This was a material mistake of fact. However, the tribunal upheld the core of the other allegations, including PQ’s own inappropriate investigation of a rumour, gifting a pupil a jacket, inappropriate physical contact and other boundary concerns.

6. The error concerning Allegation 2 did not undermine the overall decision. The remaining admitted and proved conduct amounted to relevant conduct and independently supported the DBS decision. There was no realistic prospect that remittal would produce a different outcome. The appeal was therefore dismissed and the decision confirmed.

• Upper Tribunal (Administrative Appeals Chamber): dismissed PQ’s appeal and confirmed the DBS decision.
• Disclosure and Barring Service: on 24 July 2023 decided to include PQ on the Children’s Barred List under the Safeguarding Vulnerable Groups Act 2006.