WR v Disclosure and Barring Service

A positive behaviour support plan is not an exhaustive code. It forms part of a continuing process in which carers adapt safely to a service user’s changing needs, followed where appropriate by review and revision. Conduct which supplements a plan may therefore be consistent with it.

On an appeal under Safeguarding Vulnerable Groups Act 2006, a mistake of fact may be an incorrect or incomplete finding, or an omission. Where such a mistake may affect the appropriateness assessment, the Upper Tribunal may make its own findings of fact and remit the matter to DBS for a new decision.

DBS placed WR on the children’s and adults’ barred lists after finding that he had failed to follow BB’s positive behaviour support plan, had not arranged a best-interests decision, had created an unauthorised amended plan, and had inadequately reported a safeguarding incident.

WR appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006. The appeal was limited to alleged mistakes of fact. The central issues were whether the plan was exhaustive, whether a draft plan had been circulated and authorised the carers’ conduct, and whether omitted circumstances relating to WR’s investigation of the incident could affect DBS’s appropriateness assessment.

1. Appeal allowed and matter remitted. DBS had made material mistakes of fact. The Tribunal made findings of fact and remitted the case to DBS for a fresh appropriateness decision. WR was to remain on both barred lists pending that decision.

2. The Tribunal was confined to the permitted factual-error ground, consistently with Disclosure and Barring Service v JHB [2023] EWCA Civ 982. A mistake of fact can comprise an incorrect finding, an incomplete finding or an omission. The Tribunal applied PF v Disclosure and Barring Service [2020] UKUT 256 (AAC) in determining that the identified errors satisfied section 4(2)(b) of the Safeguarding Vulnerable Groups Act 2006.

3. DBS had fundamentally misunderstood the nature of a positive behaviour support plan. Such a plan was not an exhaustive set of rules from which staff could never depart. It was informed by carers’ experience and could be reviewed and revised. Keeping BB in his harness while guiding him safely between the vehicle and home, or delaying its removal because his behaviour was elevated, was consistent with the operative plan.

4. The document treated by DBS as an unauthorised revised plan was a password-protected draft. It was not circulated to carers and could not have caused them to think that use of the harness for control, or to propel or hold BB in the hot tub, was authorised. WR had authorised use of the harness for safety and guidance only. He was also arranging a best-interests meeting, having consulted BB’s parents.

5. DBS’s fact-finding also omitted circumstances capable of affecting its appropriateness assessment of WR’s handling of the investigation. WR was on sick leave when the incident occurred; investigation was not his responsibility; and responsibility was confused when he returned. Applying Disclosure and Barring Service v AB [2021] EWCA Civ 1575, the Tribunal had sufficient evidence and it was appropriate to make its own findings rather than leave all factual issues to DBS.

• Upper Tribunal (Administrative Appeals Chamber): Allowed WR’s appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, made findings of fact, and remitted the matter to DBS for a new decision.
• Disclosure and Barring Service: Decision letter dated 14 March 2022 added WR to the children’s and adults’ barred lists.