HA v Disclosure and Barring Service

In an appeal against inclusion in the adults’ barred list, the Upper Tribunal may correct mistakes of law or fact on which the decision was based. Whether inclusion is appropriate is not itself a question of law or fact. A decision may stand where one material factual finding independently supports it, even if other findings are mistaken. The Tribunal must assess conflicting evidence on the balance of probabilities. Detailed, contemporaneous and corroborated evidence may outweigh a denial, even where the vulnerable adult has communication or cognitive impairments and initially denied or declined to report the conduct. Where the decisive finding establishes serious sexual conduct involving a vulnerable adult, inclusion in the barred list need not be disproportionate.

HA appealed to the Upper Tribunal against the Disclosure and Barring Service’s decision of 16 February 2023 to include him in the adults’ barred list under paragraph 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.

DBS found that HA had sexually touched a vulnerable adult, engaged in unprofessional conversation with him, and failed to report inappropriate behaviour. HA denied the sexual conduct and challenged the reliability of the adult’s account, relying on alleged inconsistencies, communication difficulties, workplace hostility and the absence of police action.

The central issues were whether DBS had made a mistake of law or fact on which its decision was based, and whether the Tribunal should interfere with the barring decision.

1. The appeal was dismissed. DBS’s decision to include HA in the adults’ barred list was confirmed.

2. Under section 4(2) of the Safeguarding Vulnerable Groups Act 2006, the Tribunal’s jurisdiction was confined to mistakes of law or mistakes in findings of fact on which DBS’s decision was based. Under section 4(3), the appropriateness of inclusion was not itself a question of law or fact.

3. The Tribunal accepted the detailed account given by the vulnerable adult of sexual intimacy with HA. The account was made relatively soon after the events, was corroborated by other evidence, and was consistent with HA’s own evidence about his relationship and conversation with the adult. The Tribunal considered it improbable that the account had been fabricated by the employer or invented as fantasy by the adult.

4. Communication difficulties, cognitive impairment, an initial refusal to provide details to the police, and the physical layout of the room did not make the account unreliable or the alleged conduct implausible. The initial reluctance to report was consistent with consensual intimacy, the parties’ good relationship and reluctance to cause HA trouble.

5. DBS had therefore made no mistake in finding that HA had engaged in the sexual conduct. That finding was independently sufficient: given its seriousness from a safeguarding perspective, the other factual findings were not material because the decision would have been the same without them.

6. For completeness, the Tribunal found no mistake in treating HA’s conversation with the adult about sexuality and personal matters as unprofessional. It did find a mistake in the finding that HA had failed to report inappropriate behaviour, because the evidence established a tolerated practice of reporting such incidents orally rather than in writing. That mistake did not affect the outcome.

7. Inclusion in the adults’ barred list was not disproportionate in light of the established sexual conduct involving a vulnerable adult. DBS had made no material mistake of fact or law, and its decision was confirmed.

1. Upper Tribunal (Administrative Appeals Chamber): dismissed HA’s appeal and confirmed DBS’s decision dated 16 February 2023 to include him in the adults’ barred list.