CD v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may correct DBS findings of fact and substitute its own findings. The question whether inclusion in a barred list is appropriate remains for DBS, not the Tribunal. Professional boundaries are assessed by reference to the content and context of communications and conduct. The use of private notes, allocation of tasks during breaks, or individual attention is not inherently inappropriate. A finding of fixation must be supported by reliable evidence attributable to the particular individual concerned. Where DBS’s reasoning is materially affected by confusion between individuals or by defective factual findings, the matter may be remitted for a new decision. Removal from the list is appropriate only where it is the only decision DBS could lawfully reach on the facts found.

DBS included CD in the children’s barred list in 2021 and later in the adults’ barred list in 2023. The decisions concerned alleged exposure at a leisure centre, breaches of professional boundaries through notes and classroom conduct, and a fixation with a pupil. CD appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006. The appeals were heard together because the findings and reasoning were effectively the same.

The Upper Tribunal considered whether DBS had made mistakes of fact in findings concerning exposure, professional boundaries and fixation, and what disposal followed from those mistakes.

1. Exposure. DBS and the Tribunal were entitled to assess the allegation on the balance of probabilities despite CD’s acquittal in the Crown Court. The criminal and civil questions differed, and the Tribunal was not concerned with the additional intention required for the criminal offence. On the evidence, however, the allegation was not proved.
2. Professional boundaries. The mere use of notes to communicate privately with pupils was not inappropriate. Nor were allocating tasks during breaks or individual attention inherently improper. The relevant assessment depended on what the notes said and the surrounding conduct. The evidence established a consistent pattern of inappropriate personal communications, use of friendship as a means of engagement, selective attention, inappropriate physical contact and favouritism. Those matters established breaches of professional boundaries, but not every alleged incident did so.
3. Fixation. DBS’s reasoning confused evidence concerning different children who had been given the same or different identifying letters. A finding of fixation depended on the number of instances attributable to the particular child. The confusion weakened the evidential basis for fixation. The Tribunal could not find fixation on the balance of probabilities, although the evidence showed breaches of professional boundaries and favouritism.
4. Substituted findings and disposal. Under section 4(6)(b) and (7)(a) of the Safeguarding Vulnerable Groups Act 2006, the Tribunal substituted a single finding that CD had breached professional boundaries through notes, conversations and behaviour towards pupils, including favouritism, especially towards girls. Under section 4(6)(a), removal could be directed only if it was the only decision DBS could lawfully reach on the facts found. That test was not satisfied. The matters were therefore remitted to DBS for a new decision, and CD was to remain on the lists pending that decision.

• Disclosure and Barring Service: CD was included in the children’s barred list in 2021 and the adults’ barred list in 2023.
• Upper Tribunal (Administrative Appeals Chamber): The appeals were heard together. The Tribunal corrected DBS’s findings, substituted a single finding, remitted the matter to DBS for a new decision and directed that CD remain on the lists pending that decision.