VA v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may intervene only for a mistake of law or a material mistake of fact. It does not reassess whether inclusion in a barred list is appropriate, including the overall balance under Article 8.

Barring is not a remedy of last resort. Where the statutory conditions are met, DBS must apply its statutory regime. A challenge based on proportionality must identify an error of law in DBS’s decision. An isolated incident, previous good character, qualifications, remorse and the adverse consequences of barring do not, without more, establish such an error.

VA v Disclosure and Barring Service was an appeal to the Upper Tribunal against DBS’s decision of 4 April 2023 to include VA in both the children’s and adults’ barred lists.

DBS found that VA had shouted at a vulnerable resident, ignored requests for help with pain, and failed accurately to report and record the incident. VA contended that the resident had been masturbating, that there was no duty to record the incident, and that barring was disproportionate.

The Upper Tribunal had granted permission on grounds concerning the factual findings and proportionality. The central issues were whether DBS had made material factual mistakes and whether its decision disclosed an error of law.

1. Appeal dismissed. The Tribunal found no mistake of fact in DBS’s finding that VA ignored the resident’s requests for help with pain. The recording showed that VA remained focused on her perception that the resident was masturbating and did not seek to understand repeated statements of pain, bleeding, and requests for help.
2. The Tribunal also found that VA was required to report and record the incident. Management guidance required staff to respect the resident’s privacy and did not require recording masturbation as such. It did not excuse failure to record an incident involving pain, possible bleeding, requests for assistance, and an attempt to involve a carer in sexual activity.
3. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Tribunal could not undertake a fresh assessment of the appropriateness of barring. Applying B v Independent Safeguarding Authority [2013] 1 WLR 308, that assessment included the Article 8 balance.
4. Barring was not a measure of last resort. The statutory scheme required DBS to apply its own criteria, and the absence of a prosecution or of a safeguarding review under the Care Act 2014 did not establish legal error. The Tribunal accepted that the incident was isolated and that VA had positive qualities and had expressed remorse. However, her experience and training, together with the intensity of her reaction on the recording and the lack of evidence that its underlying cause had been overcome, supported DBS’s assessment of continuing risk.
5. The protection of children was sufficiently important to justify the Article 8 interference and barring was rationally connected to that aim. VA had not shown an error of law in DBS’s assessment of necessity or fair balance. DBS’s decision was therefore confirmed.

• Upper Tribunal (Administrative Appeals Chamber). Appeal dismissed and DBS’s decision confirmed: [2024] UKUT 246 (AAC).
• Disclosure and Barring Service. On 4 April 2023, included VA in the children’s and adults’ barred lists.