AM v The Disclosure and Barring Service

On an appeal against inclusion in a barred list, the Upper Tribunal may intervene only if the Disclosure and Barring Service made a material mistake of law or fact. The statutory assessment of whether barring is appropriate is not itself appealable. The Tribunal must assess the evidence as a whole, including later evidence affecting reliability, but a different view of the facts is insufficient without an identified mistake by the DBS.

Where no such mistake is established, Safeguarding Vulnerable Groups Act 2006, section 4(5), requires the Tribunal to confirm the DBS decision.

The DBS included AM on the Children’s Barred List on 15 June 2023 after finding, on the balance of probabilities, that he had sexually and violently abused his former wife and had engaged in sexualised conduct towards children in the family.

AM appealed under Safeguarding Vulnerable Groups Act 2006. He contended that the DBS had made factual mistakes, principally because his elder daughter had retracted her earlier police accounts and asserted that their mother had fabricated the allegations. At the Upper Tribunal hearing, AM and his daughter gave oral evidence.

The central issue was whether the DBS’s findings involved a mistake of fact or law, rather than whether the Tribunal itself considered barring appropriate.

1. Appeal dismissed. The Tribunal found no mistake of fact or error of law in the DBS decision and therefore confirmed AM’s inclusion on the Children’s Barred List.

2. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the appropriateness of barring is not an appealable question of law or fact. The Tribunal’s task was confined to deciding whether the DBS had made a material legal or factual mistake. It could assess all the evidence, including the new oral evidence, but could not allow the appeal merely because it might have reached a different factual view.

3. The Tribunal rejected the daughter’s retraction evidence. Her contemporaneous police accounts contained substantial and incidental detail, were cross-corroborated by the accounts of her mother and sister, and developed in a manner consistent with disclosure of domestic abuse. Her later account of her role in the criminal trials was confused. The Tribunal found that her belated retraction undermined, rather than established, her reliability.

4. The Tribunal also found the former wife’s and younger daughter’s evidence consistent, credible and mutually corroborative. AM’s denials did not displace that evidence. The DBS was therefore entitled to find the relevant historic abuse proved on the balance of probabilities.

5. As no qualifying mistake was established, section 4(5) required confirmation of the DBS decision. The Tribunal also maintained anonymity and reporting restrictions under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and confirmed the DBS decision to include AM on the Children’s Barred List.
• Disclosure and Barring Service: decided on 15 June 2023 that it was appropriate and proportionate to include AM on the Children’s Barred List.