AA v Disclosure and Barring Service

The Disclosure and Barring Service must give adequate reasons when deciding disputed allegations on the balance of probabilities for the purpose of inclusion in a barred list. Where a witness has made additional serious allegations which are not relied upon, or which appear unreliable or unexplored, the decision-maker must explain why other allegations by that witness are nevertheless accepted as reliable. It must also make and explain findings on material matters necessary to the alleged conduct.

Under Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may consider oral and other new evidence when deciding whether a DBS factual finding was mistaken. A material legal error requires the appeal to be allowed. The Tribunal may remit for a fresh decision rather than direct removal where it has not found factual mistakes that would require removal.

AA appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006 against the DBS decision of 30 August 2022 to retain him on the Children’s Barred List. The decision followed his acquittal at a Crown Court trial concerning allegations that, while teaching at a madrassa, he sexually assaulted three girls aged eight or nine.

The DBS found the allegations proved on the balance of probabilities and made consequential findings about future risk. AA denied touching any child. At the Upper Tribunal hearing he gave oral evidence and relied on the criminal-trial transcript. The central issues were whether the DBS’s findings were materially mistaken and whether its reasoning adequately addressed evidence bearing on the reliability of the complainants.

1. Appeal allowed. The DBS decision involved material errors of law. It was remitted under section 4(6)(b) of the Safeguarding Vulnerable Groups Act 2006 for a fresh decision.

2. The statutory inclusion decision requires the DBS to be satisfied that the person engaged in relevant conduct, to have reason to believe that the person has been or might be engaged in regulated activity relating to children, and to be satisfied that inclusion is appropriate. The appellant accepted the regulated-activity element and that the conduct alleged, if proved, was relevant conduct.

3. The Tribunal could consider AA’s oral evidence and the criminal-trial transcript when deciding whether the DBS had made a material mistake of fact. Oral evidence tested by cross-examination necessarily changes the evidential position from a paper-based DBS decision. Nevertheless, AA’s evidence did not establish that the DBS was necessarily wrong to prefer the children’s evidence.

4. The DBS failed to address material allegations by KJ that AA physically chastised children and had sexually assaulted nearly everyone in her class. If those allegations were not relied upon because they were unreliable, the DBS had to explain why KJ’s allegations of sexual assault against her were nonetheless reliable. If it had failed to consider them, that too was an error because they were plainly relevant to reliability.

5. The DBS also failed adequately to state whether KJ was present at the madrassa on 21 March 2016, why it so found, and how it could find a sexual assault on that date if she was absent. These omissions were material errors of law.

6. The Tribunal did not determine AA’s other grounds because remittal meant that any further errors would be subsumed in the fresh decision. It did not find factual mistakes such that removal from the list was required. The DBS was not bound by the former decision-maker’s findings, and AA’s name was to remain on the Children’s Barred List pending the new decision.

• Upper Tribunal (Administrative Appeals Chamber): Allowed AA’s appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, set aside the DBS decision for material errors of law, and remitted it for a fresh decision.

• Disclosure and Barring Service: On 30 August 2022, decided that AA should remain on the Children’s Barred List.