JC v The Disclosure and Barring Service

An appeal under section 4 of the SVGA succeeds only on a material error of law or fact. The Upper Tribunal cannot substitute its view on whether inclusion in a barred list is appropriate.

The duty of inquiry requires the DBS to take reasonable steps in the circumstances. It may rely on coherent evidence from the police and an employer without obtaining further material where that evidence sufficiently answers the relevant questions.

Accepting a substantial loan from a vulnerable adult receiving care, contrary to known employment restrictions, and failing to repay it may amount to an abuse of trust which endangers that adult. That conclusion does not depend on incapacity or on the money having been obtained by criminal coercion.

JC v The Disclosure and Barring Service was an appeal against the DBS decision of 26 August 2022 to place JC on the Adults’ Barred List.

The DBS found that JC, while employed as a carer, accepted approximately £1,500 from a vulnerable service user after discussing financial difficulties and did not repay it. JC denied receiving money. She contended that the DBS had made a material factual mistake, inadequately investigated the allegation, and irrationally treated a freely offered loan as abuse of trust or coercion.

The central issues were whether the DBS had made a material error of fact or law within section 4 of the SVGA, including whether it had undertaken a reasonable inquiry and whether the conduct constituted relevant conduct.

1. Appeal dismissed. The DBS had made no material error of law or fact in including JC on the Adults’ Barred List.

2. The Tribunal’s jurisdiction under section 4 of the SVGA was confined to material errors of law or fact. The appropriateness of barring was for the DBS. The Tribunal had to consider the whole evidential basis of the DBS decision, rather than the final decision letter in isolation.

3. The duty of inquiry derived from Secretary of State for Education and Science v Metropolitan Borough of Tameside, [1976] UKHL 6, required reasonable steps in the circumstances. The DBS could reasonably rely on the combined police and employer evidence that the service user gave JC the money and that accepting it was a serious breach of JC’s employment obligations. It did not need to obtain JC’s contract, investigate the source of the cash, make further inquiries about historic alcohol use, or seek more police information.

4. In any event, any failure to obtain the contract would not have been material. JC accepted in oral evidence that she knew she could not accept more than £5 from a service user.

5. The service user’s autonomy and capacity did not prevent the conduct from being abusive. The relevant abuse of trust was the acceptance of money from a person for whom JC was caring, in breach of an understood employment restriction. The failure to repay the loan provided a separate basis for financial harm and for the barring decision.

6. The DBS was entitled to use “coercion” in the sense that JC’s discussion of financial difficulty created the context in which the service user offered money. This did not necessarily contradict the police view that the money was willingly given. Any possible evidential error about coercion was immaterial because acceptance and non-repayment of the money independently justified the decision.

7. On the balance of probabilities, the Tribunal was not persuaded that the DBS had been mistaken in finding that JC accepted approximately £1,500 and failed to repay it. JC’s denial lacked evidential support and her credibility was undermined by her non-disclosure to prospective employers of her dismissal for gross misconduct.

• Upper Tribunal (Administrative Appeals Chamber): dismissed JC’s appeal from the DBS decision of 26 August 2022 to include her on the Adults’ Barred List.
• Disclosure and Barring Service: decided to include JC on the Adults’ Barred List after finding relevant conduct and that barring was appropriate under the SVGA.