VM v Disclosure and Barring Service

An appeal against inclusion in a barred list lies only on the grounds of a material mistake of law or a material mistake in a finding of fact on which the decision was based. The Upper Tribunal may make its own factual findings, including after hearing oral evidence, but cannot substitute its view on whether barring is appropriate. It may assess rationality and proportionality, while giving appropriate weight to the Disclosure and Barring Service’s statutory expertise.

A mistake in one finding will not require removal or remission where the remaining findings independently establish relevant conduct and the same barring decision would inevitably have been made. Inappropriate comments or gestures do not constitute relevant conduct merely because they occurred in the presence of vulnerable adults; there must be evidence of actual harm or a risk of harm.

VM appealed against the Disclosure and Barring Service’s decision dated 20 April 2022 to include her on the Children’s Barred List and the Adults’ Barred List under paragraphs 3 and 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. The decision followed allegations concerning neglectful care, premature completion of daily notes and medication records, use of a hoist, and inappropriate comments or gestures.

Permission to appeal was granted on alleged mistakes of fact and law, including irrationality and disproportionality. The central issue was whether any mistake was material to the ultimate barring decisions.

1. Appeal dismissed. The DBS decision to include VM on both barred lists was confirmed under section 4(5) of the Safeguarding Vulnerable Groups Act 2006.
2. Under section 4(2), the Upper Tribunal had jurisdiction to determine whether DBS made a mistake of law or a mistake in a finding of fact on which the decision was based. The Tribunal could consider all the evidence, make its own factual findings and hear oral evidence. The burden remained on DBS to establish relevant conduct, while VM bore the burden of establishing a mistake on appeal.
3. The Tribunal accepted that DBS had made a material mistake of fact concerning the alleged instruction to use a tracking hoist without two-person support. VM reasonably believed that recent training permitted one-person use. That finding was therefore not established as relevant conduct.
4. The Tribunal also found a mistake of law concerning the allegations of inappropriate comments and gestures. Such conduct was inappropriate, but it did not constitute relevant conduct without evidence that it caused harm or created a risk of harm to vulnerable adults or children.
5. Those mistakes were immaterial. The findings concerning leaving a vulnerable resident without appropriate mealtime support, restricting residents to their rooms, and prematurely completing daily notes and medication records were established on the balance of probabilities. They independently amounted to relevant conduct and made it inevitable that DBS would reach the same barring decisions.
6. The Tribunal could not reconsider whether inclusion was appropriate, because section 4(3) excluded that question from its jurisdiction. It could, however, consider irrationality and proportionality. Applying the four-stage proportionality questions identified in R (Aguilar Quila) v Secretary of State for the Home Department and Huang v Secretary of State for the Home Department, the safeguarding objective was important, the measures were rationally connected to it, no less restrictive effective option existed, and the public interest outweighed VM’s private and family interests.
7. The barring decisions did not prevent VM acting as a special guardian. Special guardianship was not regulated activity under the Act, and DBS had not shared the barring information with the local authority for that purpose.

• Upper Tribunal (Administrative Appeals Chamber): appeal against the DBS decision dated 20 April 2022 dismissed; the decisions to include VM on the Children’s and Adults’ Barred Lists were confirmed.