SCK v Disclosure and Barring Service

An appeal against inclusion in an adults’ barred list is confined to errors of law and material errors in the factual findings on which the decision was based. The statutory assessment of whether inclusion is appropriate is not itself a question of law or fact.

Where the evidence supports findings that a care worker intentionally used harmful force against a vulnerable adult and responded abusively during an incident, the decision-maker may rationally regard the conduct as creating an unacceptable safeguarding risk. In assessing proportionality, the risk to vulnerable adults and the individual’s loss of ability to undertake regulated work must be balanced. Proper weight is given to the specialist safeguarding assessment of the Disclosure and Barring Service and to public confidence in safeguarding.

SCK appealed against the Disclosure and Barring Service’s decision of 19 June 2023 to include him in the adults’ barred list under Safeguarding Vulnerable Groups Act 2006, Schedule 3.

The decision was based on findings that, while providing personal care to a vulnerable adult, SCK restrained the adult’s hands, slapped him across the face, and insulted his son. SCK disputed that the contact was intentional and denied the insult. Permission to appeal was granted because his proposed oral evidence could arguably show material factual errors in the DBS decision.

The Upper Tribunal heard SCK’s evidence, reassessed the disputed facts, and considered whether DBS had made a factual or legal error, including whether barring was irrational, perverse, or disproportionate.

1. Appeal dismissed. The Upper Tribunal confirmed DBS’s decision to include SCK in the adults’ barred list.

2. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Tribunal could determine only whether DBS had made an error of law or a mistake in a factual finding on which its decision was based. The separate statutory assessment of whether inclusion was appropriate did not itself become a question of law or fact.

3. On the balance of probabilities, DBS had made no material factual mistake. The Tribunal preferred the detailed, near-contemporaneous account of the other support worker and found that SCK intentionally slapped the vulnerable adult in a flash of anger after being bitten. It also found that his restraint was firm rather than gentle and that he made the abusive remark about the adult’s son. DBS had taken account of the challenging behaviour and the surrounding care context.

4. The conduct amounted to relevant conduct because it endangered, or was likely to endanger, a vulnerable adult within Schedule 3. It was rational for DBS to regard the incident as seriously relevant to future safeguarding risk.

5. DBS’s decision was neither irrational nor perverse. Proportionality required a balance between the safeguarding risk to vulnerable adults and the detriment to SCK from being unable to work with them. Appropriate weight had to be given to DBS’s specialist assessment of safeguarding risk and to public confidence in safeguarding. The balance favoured avoiding the identified risk, so the decision was not disproportionate.

• Upper Tribunal (Administrative Appeals Chamber): appeal against DBS’s decision of 19 June 2023 to include SCK in the adults’ barred list. The appeal was dismissed and the DBS decision was confirmed.