DL v The Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may determine whether the Disclosure and Barring Service made a material mistake of fact. It may consider all evidence before it, including significant evidence unavailable to the original decision-maker. An oral hearing is not essential. The Tribunal should give appropriate weight to specialist risk assessments, but need not defer to the Service on ordinary factual questions. The statutory question whether inclusion in a barred list is appropriate is not itself appealable as a question of law or fact. Where the only factual basis for barring is mistaken, and removal is the only decision lawfully available, the Tribunal must direct removal rather than remit the matter.

The Disclosure and Barring Service included DL in the adults’ barred list after finding that she had borrowed money from a vulnerable adult, failed to repay part of it and sought a further loan. DL appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006, relying principally on a mistake of fact. Permission was granted, and the appeal was determined on the papers after an oral hearing became impracticable.

The Upper Tribunal considered evidence gathered during the employer’s investigation, together with substantial material not available to DBS when it made its decision. The central issues were whether DBS’s factual finding was mistaken and, if so, whether the Tribunal should direct removal from the barred list or remit the matter.

1. Appeal allowed. The Upper Tribunal found that DBS had made a mistake of fact in the only finding on which the barring decision was based. It directed DBS, under section 4(6)(a) of the Safeguarding Vulnerable Groups Act 2006, to remove DL from the adults’ barred list.
2. The Tribunal applied the principles summarised in PF v Disclosure and Barring Service [2020] UKUT 256 (AAC). A factual mistake must be material to the decision. The Tribunal may consider all evidence before it, including evidence unavailable to DBS, and may make its own findings of primary fact. It need not hear oral evidence. Appropriate weight should be given to DBS’s specialist expertise on public risk, but the question whether money was borrowed did not engage such expertise.
3. The Tribunal considered Disclosure and Barring Service v JHB [2023] EWCA Civ 982 and DBS v RI [2024] EWCA Civ 95. This was not a case in which the Tribunal had substantially the same material as DBS. The Tribunal was therefore entitled to assess the whole evidential picture. The distinction between capacity and confusion was material: capacity did not establish that the vulnerable adult could not be confused or mistaken.
4. On the evidence, the investigation was superficial and unreliable. The vulnerable adult’s accounts contained inconsistencies, there was evidence of a previous unsubstantiated allegation, and the new care records disclosed episodes of confusion and forgetfulness. DL’s repeated denials were accepted. The Tribunal found that she had not borrowed money, failed to repay it or sought a further loan.
5. Following AB v Disclosure and Barring Service [2021] EWCA Civ 1575, removal may be directed where it is satisfied that removal is the only decision DBS could lawfully make if the matter were remitted. Since the sole factual basis for barring was false, there was no remaining basis for inclusion. The legal grounds of appeal did not require determination.

• Upper Tribunal (Administrative Appeals Chamber): appeal from DBS’s decision to include DL in the adults’ barred list. The appeal was allowed and DBS was directed to remove DL from the list.