CNS v Disclosure and Barring Service (Safeguarding)

On an appeal against discretionary inclusion in a children’s barred list, the Upper Tribunal may determine whether the Disclosure and Barring Service made a material error of fact or law. It may consider fresh evidence and make factual findings, but may not reconsider the statutory question of appropriateness as a merits appeal.

A factual error warrants intervention only if it made a material contribution to the barring decision. Where an established finding of relevant conduct independently makes the same barring outcome inevitable, an error in a further finding does not affect the result. Proportionality remains reviewable as an error of law, with appropriate weight given to the DBS’s expert safeguarding assessment.

The appellant, a primary-school midday supervisor, appealed against the DBS decision of 15 July 2022 to place her on the Children’s Barred List under paragraph 3 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.

The DBS found that she had assaulted her son and had failed to inform her employer that she was subject to a social services plan. The appellant disputed both findings and contended that barring was disproportionate.

The appeal required the Upper Tribunal to decide whether either finding involved a material mistake of fact and whether the decision to bar was irrational or disproportionate in law.

1. Appeal dismissed. The DBS decision to include the appellant on the Children’s Barred List was confirmed. The Tribunal found no mistake of law or fact material to that ultimate decision: section 4(5) of the Safeguarding Vulnerable Groups Act 2006.

2. The Tribunal was entitled to consider all the evidence, including oral evidence given on appeal, when deciding whether the DBS had made a material factual mistake. It made its own factual findings but recognised that the statutory assessment of safeguarding risk and appropriateness principally belongs to the DBS.

3. The DBS had made no mistake in finding, on the balance of probabilities, that the appellant had assaulted her son and caused physical and emotional harm. The medical evidence, the son’s contemporaneous account, local-authority evidence, and the appellant’s unreliable and inconsistent account supported that finding. The erroneous reference to April rather than February 2021 was immaterial.

4. The DBS’s second finding was factually mistaken. The appellant had not failed to report the February intervention in the particular way alleged, and she was not herself subject to a social services plan. She had nevertheless misled her employer at an April investigatory interview about the extent of social-services involvement. The Tribunal made no determinative finding whether that conduct itself was relevant conduct.

5. The second error did not justify interference. The assault alone established relevant conduct and made it inevitable that the DBS would have reached the same barring decision. The decision was neither perverse nor disproportionate. The DBS had properly balanced the appellant’s Article 8 interests against the legitimate and important objective of protecting children, and was entitled to regard the continuing absence of insight as demonstrating an ongoing risk.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and confirmed the DBS barring decision: [2024] UKUT 221 (AAC).
• Disclosure and Barring Service: on 15 July 2022 decided to include the appellant on the Children’s Barred List under paragraph 3 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.