RR v Disclosure and Barring Service

On an appeal under Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may intervene only for a mistake of law or in a finding of fact on which the Disclosure and Barring Service decision was based. Whether inclusion in a barred list is appropriate is outside the statutory appeal jurisdiction. Where a qualifying mistake is established, the Tribunal may make its own findings of fact, remit the matter for a new decision, and direct that the individual remain listed pending that decision. Findings must be assessed on the evidence as a whole and on the balance of probabilities.

The Disclosure and Barring Service decided on 13 February 2023 to include RR in the Children’s Barred List after allegations concerning his conduct towards a 16-year-old student. RR appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006, alleging mistakes in DBS’s findings of fact. Permission was granted and the appeal was heard by the Upper Tribunal. The central issues were whether DBS had made material factual mistakes and, if so, what order the Tribunal should make.

1. The appeal was allowed to the extent that DBS had made mistakes in the findings of fact on which its decision was based. The matter was remitted to DBS for a new decision, and RR was directed to remain in the relevant lists until that decision.

2. Section 4 limits the appeal to mistakes of law and mistakes in findings of fact on which the DBS decision was based. The question whether inclusion in a barred list is appropriate is expressly excluded as a question of law or fact. If no qualifying mistake is established, the DBS decision must be confirmed. If one is established, the Tribunal may direct removal or remit the matter for a new decision.

3. On a remittal, the Tribunal may set out its own findings of fact, on which DBS must base its new decision. The Tribunal made its own findings in accordance with Disclosure and Barring Service v RI [2024] EWCA Civ 95.

4. The Tribunal assessed the evidence as a whole and applied the balance of probabilities. It rejected reliance on an unidentified social-media message because the evidence did not sufficiently connect it to RR. It accepted some parts of DBS’s account, including that RR had singled out KK to work with and had asked her to stay after class, but found that other alleged conduct had not been proved in the form relied on by DBS.

5. The unspecified date in DBS’s decision was treated as imprecision rather than a mistake of fact, because the evidence established 27 June 2022. Other differences between the Tribunal’s findings and DBS’s findings were material and required remittal.

1. Upper Tribunal (Administrative Appeals Chamber) — Appeal from the Disclosure and Barring Service decision dated 13 February 2023. DBS’s factual findings were found to contain material mistakes, the matter was remitted for a new decision, and RR was directed to remain listed pending that decision.