SD v Disclosure and Barring Service

An appeal against a barring decision under section 4 of the Safeguarding Vulnerable Groups Act 2006 addresses whether DBS made a mistake of law or fact. A mistake of fact must be assessed by reference to the circumstances existing when DBS made its decision. Later changes in a person’s attitudes, skills, insight or mental state cannot retrospectively establish such a mistake. Evidence obtained later may nevertheless be admitted if it relates to facts existing at the decision date. The Upper Tribunal cannot reconsider whether inclusion remains appropriate or proportionate at the appeal date. Those matters fall within DBS’s review jurisdiction.

DBS included SD in the children’s and adults’ barred lists after finding that she had failed to maintain professional boundaries and report safeguarding concerns concerning a child whom she supported as a residential support worker. SD accepted the relevant conduct but relied on later counselling, medical support, reflection, references and subsequent good conduct. She argued that this material showed mistakes of fact and made continued inclusion disproportionate. The appeal concerned the scope of the Upper Tribunal’s jurisdiction under section 4 of the Safeguarding Vulnerable Groups Act 2006, particularly whether post-decision changes could establish a mistake of fact.

1. The appeal was dismissed and DBS’s decision was confirmed. The Upper Tribunal’s jurisdiction was statutory. Section 4 created an appeal only on the ground that DBS had made a mistake of law or fact. It did not permit a general reconsideration of the barring decision.
2. The duty to include a person in a barred list arose when the statutory conditions in Schedule 3 were satisfied. Accordingly, whether DBS made a mistake of fact had to be judged by the circumstances at the date of its decision. This applied both to facts concerning past conduct and to findings about a person’s attitudes, skills, insight or mental state.
3. There was a conceptual distinction between later evidence showing that the earlier facts were misunderstood and a later change in those facts. Further evidence could show that DBS had been wrong about the position at the decision date. A subsequent acquisition of insight or change in attitude could not rewrite the past and could not establish a mistake of fact in the earlier decision.
4. The Tribunal could hear evidence obtained after the DBS decision, whether or not it was then known, available or in existence, provided that the evidence related to facts as they existed at the decision date. The approach was consistent with KB v Disclosure and Barring Service [2021] UKUT 325 (AAC). A later change of circumstances was instead relevant to DBS’s review powers under paragraph 18A of Schedule 3.
5. The Tribunal rejected the proportionality challenge. Appropriateness was excluded from the Upper Tribunal’s jurisdiction by section 4(3). Applying the proportionality questions identified in B v Independent Safeguarding Authority [2013] 1 WLR 308, the protection of children and vulnerable adults outweighed SD’s private and family-life interests in the circumstances. Her counselling, reflection and later conduct did not establish a mistake at the decision date.

• Upper Tribunal (Administrative Appeals Chamber): Permission to appeal was granted by Upper Tribunal Judge Jacobs. Following an oral hearing, the Tribunal dismissed the appeal and confirmed DBS’s decision.