NK v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may find a material mistake of fact where live oral evidence shows that the DBS was wrong to find that the appellant committed the alleged relevant conduct. The tribunal must assess all the written and oral evidence, including the quality of an appellant’s evidence under cross-examination. It cannot reassess a DBS decision merely because it prefers a different view of substantially the same material, but that limitation does not prevent it deciding whether an appellant who gives relevant oral evidence is telling the truth.

Where the finding of relevant conduct is materially mistaken and the consequential assessments of insight, empathy and future risk depend on it, the tribunal must direct removal from the barred lists unless a sustainable independent basis remains.

The DBS placed NK, a nursing auxiliary, on the Adults’ and Children’s Barred Lists. It found that he had digitally penetrated a vulnerable adult patient’s vagina in an unauthorised attempt to relieve constipation. NK denied doing so. He accepted that the alleged conduct, if proved, would be relevant conduct, but contended that the DBS’s finding was a material mistake of fact.

Following permission to appeal, the Upper Tribunal heard NK’s oral evidence, with the benefit of cross-examination and a Hindi interpreter. The central issue was whether the DBS had been wrong to find that he had carried out the alleged procedure and, if so, what disposal section 4 of the Safeguarding Vulnerable Groups Act 2006 required.

1. Appeal allowed. The DBS’s decision was based on a material mistake of fact. The Tribunal directed removal of NK’s name from both barred lists under section 4(6)(a) of the Safeguarding Vulnerable Groups Act 2006.

2. The Tribunal applied the statutory mistake-of-fact jurisdiction in the light of the recent authorities. A factual finding may be wrong even though there was some evidence supporting it. When an appellant gives relevant oral evidence, the material before the Tribunal differs from that considered by the DBS in its paper-based process. The Tribunal must assess that evidence, including its performance under cross-examination, and decide whether the appellant is telling the truth.

3. The restriction on substituting a different view of substantially the same material did not prevent that exercise. NK gave relevant live evidence. The Tribunal therefore assessed the whole evidential picture rather than treating the DBS’s finding as determinative.

4. The three colleagues’ accounts were consistent, but were hearsay accounts of what NK had allegedly said and demonstrated, not evidence that they had seen the alleged procedure. Their statements were undated or inadequately formalised, the witnesses were not called, and there was a real possibility of mishearing, misinterpretation or misremembering. NK’s credible oral evidence, the account of the sole eyewitness to the patient care, and the practical difficulty of performing the alleged procedure in the described circumstances showed that the DBS’s primary finding was wrong.

5. The DBS’s findings about lack of empathy, lack of insight and future risk depended on the mistaken primary finding and could not stand. There was no sustainable independent basis for barring NK. The Tribunal therefore directed his removal from the Adults’ Barred List and the Children’s Barred List.

• Upper Tribunal (Administrative Appeals Chamber): allowed NK’s appeal from the DBS Final Decision Letter dated 16 June 2023 and directed his removal from both barred lists.
• Disclosure and Barring Service: decided to include NK in the Adults’ Barred List and the Children’s Barred List.