CW v Disclosure and Barring Service

An appeal against inclusion in a barred list lies only on a mistake of law or a mistake in a factual finding on which the decision was based. The appropriateness of inclusion is outside the Upper Tribunal’s jurisdiction. A factual finding is not mistaken merely because another inference is possible. The question is whether it was plainly wrong, unsustainable or outside the generous ambit within which reasonable disagreement is possible. Under paragraph 4 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006, “harm” is an ordinary English word and no particular level or degree of harm is required. The Upper Tribunal may uphold a risk-averse barring decision where the evidence supports the findings, even if the conduct appears relatively less serious.

CW appealed against the Disclosure and Barring Service’s decision dated 25 May 2022 to include him in the children’s barred list under paragraph 3 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. The decision concerned three alleged incidents involving children while CW worked as a supply teacher in 2019 and 2021.

The appeal alleged mistakes in the primary and secondary factual findings, failure to establish relevant conduct, irrationality and disproportionality. The proportionality arguments were withdrawn. Shortly before the hearing, CW sought to rely on a late witness statement and give oral evidence. The central issues were whether that evidence should be admitted and whether DBS had made a mistake of fact or law within the statutory appeal jurisdiction.

1. Late evidence. The application to admit CW’s witness statement and permit oral evidence was refused. Meaningful weight would require cross-examination and an adjournment. The delay was substantial, directions had required advance identification of additional evidence, and the judgment in Disclosure and Barring Service v JHB had been available for nearly four months. Although fuller participation and possible prejudice to CW favoured admission, the need to comply with directions, avoid further delay and ensure fairness to DBS outweighed those considerations. The documentary bundle already contained accounts of CW’s position closer in time to the incidents.
2. Primary factual findings. None of DBS’s three main findings was plainly wrong. Each was supported by evidence, notwithstanding contrary evidence and possible inferences from the police decision, the absence of further reporting by a supply agency, and differences between witnesses’ accounts. Those matters did not show that the findings were unsustainable or outside the generous ambit within which reasonable disagreement was possible.
3. Harm and relevant conduct. DBS was entitled to infer from the primary facts that children had been harmed. The incidents involved confrontational physical interaction, including hitting, pushing, grabbing, scratching and refusing access to the toilet. The evidence that P was very upset, and the circumstances of the 2019 incidents, supported the inference of emotional and physical harm. “Harm” in paragraph 4 of Schedule 3 required no gloss and no particular level or degree.
4. Other legal errors. The decision was not irrational. The incidents could be viewed as relatively less serious within the safeguarding spectrum, but DBS was entitled to adopt a conservative, risk-averse approach. The appropriateness of inclusion was not a question for the Upper Tribunal under section 4(3). Different decisions by the Teaching Regulation Agency, police or supply agencies did not establish a mistake, as they were made at different times or for different purposes.

The appeal was dismissed. DBS’s decision to include CW in the children’s barred list was confirmed.

• Upper Tribunal (Administrative Appeals Chamber): the appeal against DBS’s decision dated 25 May 2022 was dismissed. The decision to include CW in the children’s barred list was confirmed.