JI v Disclosure and Barring Service

On an appeal under the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may intervene for a mistake of law or a material mistake in a factual finding on which the barring decision was based. The statutory assessment of whether inclusion is appropriate is not itself a question of law or fact.

Proportionality is a question of law. It requires a fair balance between the individual consequences of barring and the safeguarding risk, while giving appropriate weight to the expert statutory decision-maker and to the public interest in safeguarding children. The assessment is made by reference to the facts at the date of the decision.

DBS included JI, a kindergarten practitioner, in the children’s barred list after finding that she had inappropriately used a highchair to restrain a two-year-old child and placed the child outside in it.

JI appealed to the Upper Tribunal. She alleged material factual errors about her motivation, the school’s policy on highchairs, and what she said to the child. She also contended that inclusion in the list was disproportionate, particularly in light of her personal circumstances, treatment, insight, and the impact on her future employment.

The central issues were whether DBS had made a material factual or legal error within section 4 of the Safeguarding Vulnerable Groups Act 2006, and whether its decision was disproportionate at the time it was made.

1. Appeal dismissed. DBS’s decision to include JI in the children’s barred list was confirmed.

2. The Tribunal’s jurisdiction under section 4 of the Safeguarding Vulnerable Groups Act 2006 was confined to mistakes of law and mistakes in factual findings on which DBS’s decision was based. Whether it was appropriate to include a person in a barred list was expressly excluded from being a question of law or fact.

3. The Tribunal accepted that JI’s primary purpose was to stop the child’s disruptive behaviour rather than to punish her. That correction was not material to DBS’s decision. DBS had not materially erred in finding that JI used the highchair for an unsuitable purpose, restrained the child in it, and lifted the child while she was in it. The school’s lunchtime policy did not sanction using a highchair primarily to stop a child running about.

4. The Tribunal also found that the words about the wet and cold conditions were probably spoken, but not maliciously or cruelly. They nevertheless formed part of the inappropriate response of placing a two-year-old outdoors in a highchair to discourage disruptive conduct. DBS therefore made no material error in its relevant factual findings.

5. Applying the proportionality approach in B v ISA (RNC intervening) [2012] EWCA Civ 977, the Tribunal assessed the position at the date of DBS’s decision. It weighed the significant detriment to JI against the risk to children, gave significant weight to DBS’s safeguarding expertise, and took account of the public interest in safeguarding. The identified risk, including concerns about coping skills and insight into the effect of personal difficulties, fairly outweighed the personal consequences of barring.

• Upper Tribunal (Administrative Appeals Chamber): dismissed JI’s appeal and confirmed DBS’s decision of 4 October 2021 to include her in the children’s barred list.
• Disclosure and Barring Service: made the barring decision under paragraph 3 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.