RR v Disclosure and Barring Service

An appeal against inclusion in a barred list lies only for a mistake of law or a mistake in a finding of fact on which the decision was based. The Upper Tribunal cannot review whether inclusion was appropriate as a free-standing question. A factual mistake is material only if it affected the decision. In assessing proportionality, the risk to vulnerable adults must be balanced against the detriment to the individual. Appropriate weight should be given to the Disclosure and Barring Service’s specialist assessment of safeguarding risk and to public confidence in safeguarding arrangements. A rational decision based cumulatively on a pattern of non-compliance with safety rules and procedures will not ordinarily be disproportionate.

RR appealed against the Disclosure and Barring Service’s decision dated 5 October 2022 to include him in the adults’ barred list under paragraph 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. The decision followed concerns about alcohol use at work, a proposed use of alcohol during a sleep-in shift, failure to wear personal protective equipment correctly, failure to follow support plans and routines, and an alleged effect on a vulnerable adult’s eating and drinking.

Permission to appeal was granted on the basis that RR’s oral evidence might establish material factual mistakes. The central issues were whether DBS had made a material mistake of fact or law, including in relation to causation, rationality, proportionality and procedural fairness.

The Upper Tribunal dismissed the appeal and confirmed DBS’s decision to include RR in the adults’ barred list.

1. Under section 4(2) of the Safeguarding Vulnerable Groups Act 2006, the Tribunal’s jurisdiction was limited to mistakes of law and mistakes in findings of fact on which the decision was based. Section 4(3) excluded the question whether inclusion in a barred list was appropriate as an independent question of law or fact.
2. The Tribunal upheld DBS’s findings concerning alcohol use, the proposed use of alcohol as a sleeping aid, PPE compliance, and failure to follow service users’ support plans and routines. DBS was not required to record every contextual matter where the material finding was that RR had breached workplace policy or failed to follow required procedures.
3. Finding 5 was mistaken because the evidence did not establish that RR’s conduct caused JP to eat or drink less frequently. The mistake was not material. That finding was not relied on in relation to the definite concerns about irresponsible and reckless conduct and was only one of three findings relevant to the concern about callousness or lack of empathy.
4. DBS’s decision was rational because the findings demonstrated a pattern of non-compliance with rules and procedures capable of creating safeguarding risk. Proportionality required a balancing exercise between the risk posed to vulnerable adults and the detriment to RR of being unable to work in his chosen field. Appropriate weight was due to DBS’s specialist safeguarding assessment and to public confidence in safeguarding vulnerable persons. The balance favoured avoiding the safeguarding risk, so the decision was not disproportionate.
5. The Tribunal had no jurisdiction over the process followed by RR’s employer. It found no procedural irregularity in DBS’s process amounting to an error of law.

DBS’s decision involved no material mistake of fact or mistake of law and was confirmed.

1. Upper Tribunal (Administrative Appeals Chamber): Permission to appeal was granted on 11 April 2024. Following an oral hearing on 30 July 2024, the appeal was dismissed and DBS’s decision dated 5 October 2022 was confirmed.