JW v Disclosure and Barring Service

On an appeal limited to mistakes of law or fact, the Upper Tribunal may intervene where a decision-maker’s core findings omit important and relevant factual context. The omission may constitute either an incomplete finding of fact or a failure to take a material matter into account in law. The decisive question is materiality: whether the decision might have been different had the omitted matter been included. The Tribunal must not substitute its assessment of whether barring is appropriate, which remains for the Disclosure and Barring Service. Where the original decision is materially flawed but removal from the barred lists is not the only lawful outcome, the matter should be remitted for a fresh decision based on the Tribunal’s findings.

JW appealed against the Disclosure and Barring Service’s decision of 12 December 2022 to include her in the children’s and adults’ barred lists under Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. The decision concerned incidents in which JW, while working a waking-night shift in a supported living home, held a service user’s bedroom door closed and made comments about the service user.

The appeal was brought under section 4(2) of the Act. JW argued that the DBS had omitted important contextual facts, including her role, the staffing arrangements, the service user’s care requirements and the circumstances preceding the door-holding incidents. The central issue was whether those omissions amounted to a mistake of law or fact on which the barring decision was based.

1. Appeal allowed. The DBS had made a material mistake on a point of law or in a finding of fact on which its decision was based. The matter was remitted to the DBS for a new decision, with JW remaining on both barred lists pending that decision.
2. Section 4(2) of the Safeguarding Vulnerable Groups Act 2006 permits an appeal only for a mistake on a point of law or in a finding of fact on which the decision was based. Under section 4(3), the appropriateness of inclusion in a barred list is not itself a question of law or fact for the Tribunal.
3. The Tribunal found that the DBS’s core findings omitted important context. JW’s primary responsibility was caring for another service user; she was not trained or authorised to provide the relevant personal care to Miss X; two female carers were required for that care; a working practice nevertheless developed under which JW checked on Miss X; and Miss X could become violent when upset. The Tribunal characterised the circumstances as management dysfunction.
4. A decision which omits important and relevant context may contain an incomplete finding of fact or fail in law to take account of a material matter. The key question is materiality: whether the decision might have been different if the omitted matter had been included, or whether the decision was bound to be the same. Applying PF v DBS [2020] UKUT 256 (AAC), the Tribunal held that the omission materially affected the DBS’s reasoning. The decision was therefore not inevitable on the facts.
5. The Tribunal rejected the remaining grounds as independently establishing an error. The core findings could amount to relevant conduct, but that did not determine whether inclusion was appropriate. Evaluative matters such as insight, empathy and future risk generally formed part of the DBS’s appropriateness assessment. The decision was not irrational or disproportionate on the facts as originally found.
6. Applying DBS v AB [2021] EWCA Civ 1575 at [73], the Tribunal held that removal was not the only lawful outcome. The DBS remained the arbiter of appropriateness and had to reconsider the matter on the facts found by the Tribunal.

• Upper Tribunal (Administrative Appeals Chamber): appeal against the DBS decision of 12 December 2022 allowed. The matter was remitted to the DBS for a new decision, and JW was directed to remain in both barred lists pending that decision.