SJS v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal must identify a mistake of law or a material factual finding on which the DBS decision was based. It does not substitute its own assessment of whether inclusion in a barred list is appropriate or proportionate.

In assessing proportionality under Article 8, the protection of children is a sufficiently important objective. Barring must be rationally connected to that aim, no more than necessary, and strike a fair balance. A material error caused by the absence of evidence bearing on the DBS's central concerns may justify remittal for a fresh decision, even where other findings support serious safeguarding concerns.

DBS included SJS in the children’s barred list on the basis of an inappropriate-language incident at a youth project and a later incident in which a child supported by him took his van without authority, followed by his failure promptly to report the matter and his untrue accounts of it.

SJS appealed against DBS’s decision letter of 5 December 2022. He challenged, among other matters, DBS’s assessment that he had not modified his behaviour after being warned, its treatment of the incidents as a course of conduct, its treatment of remedial steps and the proportionality of barring.

The central issues were whether DBS had made a factual or legal error within section 4 of the Safeguarding Vulnerable Groups Act 2006, and whether the consequence should be dismissal or remittal.

1. Appeal allowed and remitted. DBS made a factual error in finding, as part of its appropriateness assessment, that SJS had failed to modify his use of inappropriate language after assurances had been given. The Tribunal found that he had modified that language. A positive reference from the youth project, which DBS had not had, was relevant to that finding and to the inappropriate-language incident, which had been the principal source of DBS’s definite concerns.

2. The Tribunal’s jurisdiction under section 4 of the Safeguarding Vulnerable Groups Act 2006 was limited to identifying an error of law or a factual finding on which the decision was based. It was not entitled to decide afresh whether it would itself have barred SJS or considered barring proportionate.

3. DBS had not erred by treating the two incidents as a course of conduct. They were linked by SJS’s failure to interact with young people maturely and to maintain professional boundaries. Nor had DBS erred by failing to regard remediation as resolving the underlying concerns: the van incident showed dishonesty, vulnerability to manipulation, collusion with the child and a serious failure to report or seek advice.

4. Applying the proportionality approach in B v Independent Safeguarding Authority [2013] 1 WLR 308, protection of children justified interference with Article 8 rights and barring was rationally connected to that aim. DBS was entitled, on the remaining facts, to identify an unacceptable risk to children and no alternative safeguarding measure. Its reasoning had nevertheless been affected by the missing reference.

5. Following the approach in Kihembo v Disclosure and Barring Service [2023] EWCA Civ 1547, the proper disposal was remittal rather than dismissal on the basis that the error was immaterial. The matter was remitted to DBS for a new decision in light of the reference of 10 May 2022. SJS was directed to remain in the lists pending that decision.

• Upper Tribunal (Administrative Appeals Chamber): Allowed SJS’s appeal from DBS’s decision letter of 5 December 2022, found a factual error and a consequential error of law, and remitted the matter under section 4 of the Safeguarding Vulnerable Groups Act 2006.
• Disclosure and Barring Service: On 5 December 2022, decided to include SJS in the children’s barred list.