AT v Disclosure and Barring Service

An appeal against inclusion in a barred list lies only for a mistake of law or a mistake in a finding of fact on which the decision was based. The appropriateness of inclusion is not itself a question of law or fact. Where new evidence is admitted in a mistake-of-fact appeal, the Upper Tribunal must assess the evidence in accordance with the applicable appellate principles. If the factual basis for alleged relevant conduct is mistaken, and the conduct did not occur, there is no lawful basis for inclusion in the barred lists and removal may be directed.

AT appealed against the Disclosure and Barring Service’s decision of 22 March 2023 to include him in the children’s and adults’ barred lists under paragraphs 3 and 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. DBS concluded that AT had engaged in conduct involving inappropriate touching of a patient during a hospital consultation and a subsequent home visit.

The Upper Tribunal admitted and assessed evidence from AT and his wife, in addition to the evidence available to DBS. The central issue was whether DBS had made mistakes in the factual findings on which its decision was based.

1. Appeal allowed. The Upper Tribunal directed DBS to remove AT from both barred lists.
2. Under section 4(2) of the Safeguarding Vulnerable Groups Act 2006, an appeal lies against a barred-list decision only on the ground that DBS made a mistake on a point of law or in a finding of fact on which the decision was based. Section 4(3) excludes the question whether inclusion is appropriate from the category of questions of law or fact.
3. The tribunal applied the principles recently clarified in DBS v RI [2024] EWCA Civ 95 to its assessment of all the evidence, including evidence that was not before DBS. It considered the reliability and limitations of the evidence as a whole, including the absence of first-hand evidence from Patient A.
4. On the balance of probabilities, AT had not examined Patient A’s breasts, groin or buttocks at the hospital or during the home visit. DBS’s contrary findings were therefore mistakes of fact on which its decision was based.
5. Once those factual findings were rejected, the only lawful decision available was removal from both barred lists. The tribunal considered the case to be on all fours with the example given by the Court of Appeal in DBS v AB [2021] EWCA Civ 1575, where alleged conduct had not in fact occurred and there was no basis for inclusion.
6. The tribunal did not determine the alleged errors of law because the factual mistakes were sufficient to dispose of the appeal. It also commented that general concerns about witnesses participating in tribunal proceedings did not answer the particular evidential problem, given the protective measures available to tribunals.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal against DBS’s decision of 22 March 2023 and directed removal from both barred lists.