LMM v The Disclosure and Barring Service

The Disclosure and Barring Service must act rationally and in good faith when obtaining information for a barring decision. It need not pursue every possible line of inquiry where the information received is sufficient to make a risk assessment.

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may determine whether a factual finding was wrong, including in light of oral evidence. It must not substitute its evaluation of the appropriateness of inclusion on a barred list.

Allegations of similar sexualised conduct may be assessed cumulatively. The Tribunal must evaluate their cogency, but may find a pattern or propensity without requiring each individual incident to be separately proved.

LMM v The Disclosure and Barring Service was an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006 against the Disclosure and Barring Service’s decision of 11 August 2022 to include LM, a nurse, on both the Children’s and Adults’ Barred Lists.

LM alleged that the DBS had gathered information unfairly and had made factual mistakes concerning physical chastisement of his child, domestic abuse, and sexualised behaviour towards female work colleagues in 2007, 2013 and 2018. The Upper Tribunal received further documentary evidence and oral evidence from LM and his wife. The central issues were whether the DBS had made an error of law in its information-gathering and whether its material factual findings were wrong.

1. Appeal dismissed. The Tribunal found no error of law and no material mistake of fact. It therefore had to confirm the DBS decision under section 4 of the Safeguarding Vulnerable Groups Act 2006.

2. The DBS is a risk-management body, not an investigative body charged with determining the truth of allegations. Its obligation was to obtain information sufficient for its statutory risk assessment and to act rationally and in good faith. It was not irrational to refrain from seeking further police, social-services or care-home material where the public bodies had supplied adequate information, explained the absence of further material, or the available information sufficiently described the alleged conduct. The limited evidence concerning the 2013 domestic-abuse allegation was nevertheless sufficient to support a finding that a risk was present.

3. The Tribunal applied the mistake-of-fact jurisdiction in the light of the written and oral evidence. Where an appellant gives oral evidence and is cross-examined, the Tribunal must assess that evidence with the other material to decide whether the DBS was mistaken. It may find primary facts and inferences wrong, but may not re-evaluate the discretionary question whether inclusion is appropriate.

4. The DBS had not erred in finding that LM had slapped his son in 2018, threatened and hit his partner in 2013, and engaged in sexualised workplace conduct in 2007, 2013 and 2018. The Tribunal found LM’s denials and explanations unconvincing in material respects. The absence of a criminal prosecution or a conclusive internal investigation did not prevent the conduct from being relevant to the statutory risk assessment.

5. The sexualised allegations were properly considered cumulatively. Their similarities, their occurrence at separate care homes, and their relationship to the admitted 2018 misconduct supported a finding of a pattern of behaviour and a resulting risk to children and vulnerable adults. The Tribunal recognised the severe effect on LM’s nursing career, but upheld his inclusion on both Barred Lists.

• Upper Tribunal (Administrative Appeals Chamber): Appeal dismissed; the DBS decision of 11 August 2022 to include LM on the Children’s and Adults’ Barred Lists was confirmed.
• Disclosure and Barring Service: Included LM on both Barred Lists under Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.