JHB v The Disclosure and Barring Service

An appeal against a barring decision under section 4 of the Safeguarding Vulnerable Groups Act 2006 is confined to mistakes of law or fact made by the Disclosure and Barring Service. The Upper Tribunal must assess the evidence as a whole, including oral evidence and evidence bearing on reliability, but it may not decide afresh whether barring is appropriate. A different evaluative view is insufficient unless it identifies a mistake attributable to the DBS. The appropriateness of inclusion on a barred list is non-appealable. Where no material mistake of law or fact is established, the Upper Tribunal must confirm the DBS decision.

The appellant appealed against the DBS decision of 22 January 2021 retaining his name on the Children’s Barred List and including him on the Adults’ Barred List. An earlier Upper Tribunal panel had found mistakes of fact and remitted the matter, but the Court of Appeal allowed the DBS’s appeal and ordered a fresh hearing before a differently constituted panel.

The Upper Tribunal reheard the appeal. The central issues were whether the DBS had materially misunderstood risk assessments, the appellant’s evidence and three alleged incidents, and whether it had made any error of law or mistake of fact within section 4 of the Safeguarding Vulnerable Groups Act 2006.

1. Appeal dismissed. The DBS decision was confirmed. The Tribunal found no material mistake of fact or error of law.
2. Under section 4(2) of the Safeguarding Vulnerable Groups Act 2006, the Tribunal’s jurisdiction is limited to mistakes of law and findings of fact on which the DBS decision was based. Section 4(3) removes from appeal the question whether it is appropriate to include a person on a barred list.
3. Following the approach in PF v DBS [2020] UKUT 256 (AAC), a mistake of fact may be an incorrect, incomplete or omitted finding, relating to a primary fact or inference. The Tribunal must assess the evidence as a whole, including evidence relevant to the reliability of the appellant’s evidence. It is insufficient merely that the Tribunal would have reached a different conclusion.
4. The Tribunal was entitled to find that the appellant had misled the psychologist about knowing that the first victim was underage, and that the psychologist lacked material information about other harmful behaviour. The DBS was therefore entitled to attach limited weight to the risk assessments. A separate finding about when the appellant admitted the offence was mistaken, but immaterial.
5. The Tribunal applied the guidance discussed in DBS v RI [2024] EWCA Civ 95 concerning the assessment of oral evidence given under cross-examination. The appellant’s inconsistent accounts about intercourse with the second victim supported the DBS’s finding.
6. The weight given to the third allegation and the appellant’s rehabilitation evidence concerned the appropriateness of barring. Those matters were for the DBS, not the Tribunal, subject only to review for a material legal or factual mistake. Under section 4(5), the Tribunal was required to confirm the decision.

• Court of Appeal: In DBS v JHB [2023] EWCA Civ 982, the DBS’s appeal against the earlier Upper Tribunal decision was allowed and the matter was remitted for a fresh hearing before a differently constituted panel.
• Upper Tribunal: The present panel reheard the appeal and dismissed it, confirming the DBS decision dated 22 January 2021.