HNO v The Disclosure and Barring Service

An appeal against inclusion on a barred list under section 4 of the Safeguarding Vulnerable Groups Act 2006 is confined to a material mistake of law or fact by the Disclosure and Barring Service. The Upper Tribunal may receive and assess all the written and oral evidence, including material not before the DBS, when deciding whether a factual mistake has been shown on the balance of probabilities.

The Tribunal must distinguish factual findings from evaluative judgments about the appropriateness of barring. Unless it identifies a material mistake, it must confirm the DBS decision. Irrationality or disproportionality may amount to an error of law, but the merits of whether inclusion is appropriate are not otherwise open to review.

The DBS included the appellant, a care assistant and team leader working with elderly and vulnerable residents, on both the children’s and adults’ barred lists. Its decision relied on an inappropriate video call while feeding a vulnerable resident and on findings that he harassed two 15-year-old girls, asked them for sex, and asked them to obtain marijuana.

The appellant accepted that the video call was inappropriate but appealed on the basis that the latter findings were factually mistaken. The Upper Tribunal received his oral evidence and additional documentary material. The central issue was whether, on all the evidence, the DBS had made a material factual error on which its barring decision was based.

1. Appeal dismissed. The appellant had not established a material mistake of fact or law. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Tribunal was therefore required to confirm the DBS decision to include him on both barred lists.

2. The appeal was confined to factual or legal error. The appropriateness of inclusion on a barred list was not itself reviewable as a question of fact or law, although an irrational or disproportionate decision could disclose an error of law. Following PF v DBS [2020] UK UT 256 (AAC), the Tribunal could not displace the DBS decision without identifying a mistake.

3. In determining an alleged factual mistake, the Tribunal was entitled to consider the whole evidential record, including the appellant’s oral evidence and documents not before the DBS. It made its own assessment on the balance of probabilities, while distinguishing factual findings from evaluative judgments about the relevance or weight of facts. The DBS’s reasoning remained relevant context but did not confine the evidential inquiry.

4. The Tribunal found the appellant’s account internally inconsistent and unreliable. It preferred the girls’ accounts, which were supported by contemporaneous messages, the employer’s investigation material, and aspects of the appellant’s own evidence. The volume, content and persistence of his contact with Girl A and his conduct in the street amounted to harassment. It also found that he had asked the girls for sex and marijuana.

5. Those findings matched the DBS findings under challenge. As no factual mistake had been demonstrated, the statutory consequence was confirmation of the barring decisions.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and confirmed the DBS decision: [2024] UKUT 377 (AAC).
• Disclosure and Barring Service: included the appellant on the children’s and adults’ barred lists under the Safeguarding Vulnerable Groups Act 2006.