MFAG v The Disclosure and Barring Service

On an appeal against a DBS barring decision, the Upper Tribunal must determine objectively whether the interference with Article 8 rights is proportionate. It must weigh the individual’s rights against the community’s safeguarding interests while giving appropriate weight to the DBS’s expert assessment, particularly where future risk is assessed. The exercise is not a de novo merits decision and should not be converted into a rigid sequence of irrationality, procedural-lawfulness and unusualness inquiries.

A mistake of law or fact supports an appeal under the Safeguarding Vulnerable Groups Act 2006 only if it is material to the barring decision. Where an uncontested autobar-with-representations route independently supports inclusion, an alleged error in a discretionary-barring route cannot affect the outcome.

The appellant, a pharmacist, appealed the DBS decision of 26 October 2023 to place him on both the children’s and adults’ barred lists. The decision followed convictions for possessing indecent images of children and additional findings about earlier and later viewing of such material.

The DBS relied on both the autobar-with-representations route and the discretionary-barring route under Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. The appellant contended that factual inferences about the extent of offending and future risk were unjustified and that barring was disproportionate under Article 8.

The central issue was whether the DBS decision was proportionate and whether any alleged factual or legal error was material to its decision.

1. Appeal dismissed. The DBS decision to include the appellant in both barred lists was proportionate and disclosed no material error of law or fact.

2. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may allow an appeal only for a material mistake of law or fact. Although the appropriateness of inclusion is not itself a question of law or fact, an irrational or disproportionate decision is an error of law.

3. Applying Independent Safeguarding Authority v SB [2012] EWCA Civ 977, the Tribunal had to decide proportionality objectively. It was required to undertake the ordinary judicial task of weighing the competing considerations, while giving appropriate weight to the DBS as the specialist statutory decision-maker. The weight was significant here because the central issue was the assessment and prediction of safeguarding risk. The Tribunal rejected the DBS’s proposed three-stage framework. Irrationality, procedural shortcomings and unusual facts may be relevant, but they are not mandatory sequential stages of the proportionality inquiry.

4. The DBS had made a thorough, rational and fair assessment. It considered substantial mitigating material, including rehabilitation, remorse, professional registration, references and the absence of known contact offending. It was nevertheless entitled to identify material risk factors from the serious images, deliberate searches, repeated behaviour at different stages of life, limited evidence of reduced risk, lack of empathy and coping concerns.

5. The Tribunal accepted that the effect on the appellant’s career and private life was severe. It nevertheless held that barring was no more than necessary to protect children and vulnerable adults and struck a fair balance under Article 8. Some risk factors, including lack of empathy, exploitative attitudes and poor coping skills, could bear on risks to vulnerable adults even though there was no finding of sexual attraction to, or offending against, vulnerable adults.

6. The alleged error about a five-month rather than one-month period of activity was not established as a material error. In any event, the autobar-with-representations route independently and unassailably supported inclusion on both lists. Any lack of clarity in the discretionary-barring route concerning vulnerable adults could not affect the outcome.

• Upper Tribunal (Administrative Appeals Chamber): Dismissed the appeal from the DBS barring decision of 26 October 2023 and confirmed inclusion on both barred lists.
• Disclosure and Barring Service: Decided that the appellant should be included in the children’s and adults’ barred lists.