GR v Disclosure and Barring Service

An appeal against barring may succeed only where the Disclosure and Barring Service made a material mistake of law or a material mistake in a finding of fact on which its decision was based. The Upper Tribunal may make its own factual findings, including after hearing oral evidence, but it cannot reconsider whether inclusion on a barred list was appropriate as a merits question. It may examine rationality and proportionality as errors of law, giving appropriate weight to the DBS’s statutory expertise in safeguarding risk. Where relevant conduct is established and the barring decision is neither irrational nor disproportionate, the appeal must be dismissed and the DBS decision confirmed.

GR, an experienced residential childcare worker, appealed against the DBS decision of 29 April 2022 to include her on the Children’s and Adults’ Barred Lists under paragraphs 3 and 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. The DBS found that she had breached professional boundaries towards one child and had taken a vulnerable 16-year-old to her home and permitted him to smoke cannabis.

Permission to appeal was granted on alleged mistakes of fact and law, including alleged disproportionality. The central issues were whether the DBS findings were materially mistaken and whether the barring decision was irrational or disproportionate.

1. Outcome. The appeal was dismissed under section 4(5) of the Safeguarding Vulnerable Groups Act 2006. The DBS decision to include GR on both barred lists was confirmed.
2. Jurisdiction and factual findings. The Upper Tribunal may interfere only for a material mistake of law or a material mistake of fact on which the DBS decision was based. It may consider all evidence before it, hear oral evidence, make its own findings and draw inferences. The burden before the DBS was on the DBS to establish relevant conduct on the balance of probabilities; on appeal, the burden was on GR to establish a material mistake.
3. The Tribunal found all four aspects of the first allegation established. Contemporaneous records and GR’s admissions supported the findings that she allowed the child to use her phone, gave her toys, bought her food with personal money and carried out a personal errand while the child was in the car. The Tribunal rejected GR’s later denials as unreliable.
4. The second allegation was also established on the balance of probabilities. The Tribunal accepted the young person’s two relatively contemporaneous accounts, including his detailed description of GR’s home. It found that GR took him there and permitted him to smoke cannabis under her supervision. Whether she supplied the cannabis was immaterial to the decision.
5. The conduct constituted relevant conduct because it exposed vulnerable children to a risk of physical, emotional or psychological harm and involved repeated breaches of professional boundaries. The conduct was not confined to children, so the inclusion on the Adults’ Barred List involved no material legal or factual mistake.
6. Proportionality. The Tribunal applied the four-stage proportionality questions concerning importance of the objective, rational connection, necessity and fair balance. Safeguarding vulnerable groups was an important objective, and barring was rationally connected to it, necessary and proportionate. The Tribunal gave appropriate weight to the DBS’s expert statutory role. The decision was neither perverse nor irrational. The issue of appropriateness remained outside the Tribunal’s merits jurisdiction, subject to rationality and proportionality review.

• Upper Tribunal (Administrative Appeals Chamber) Permission to appeal was granted on 9 January 2024. The appeal was heard on 10 July 2024 and dismissed on 5 August 2024. The DBS decision dated 29 April 2022 was confirmed.