SK v Disclosure and Barring Service

An appeal against a barring decision under the Safeguarding Vulnerable Groups Act 2006 is confined to material mistakes of law or fact on which the decision was based. The Upper Tribunal may also address irrationality or disproportionality as errors of law, but it cannot itself decide whether barring is appropriate. A mistake of fact requires identification of an actual factual error, not merely a different evaluation of the evidence. Where risk documentation is contradictory and leaves staff to make dynamic assessments, an adverse outcome does not establish non-compliance with the documentation. The DBS must address the wording of the relevant plans and the evidence as a whole.

The Appellant appealed, with permission, against the DBS decision to include her on the Adults’ Barred List under paragraph 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. The appeal concerned an incident in which she left a vulnerable service user listening to a CD after he appeared calm and asked to be left alone. The service user broke the CD and used it to self-harm.

The Appellant contended that the risk assessment and Positive Behaviour Support Plan permitted a flexible response to the service user’s mood and requests. The DBS treated her conduct as a failure to follow those documents. The central issue was whether the DBS decision was based on material mistakes of fact.

1. Appeal allowed. The DBS decision was based on material errors of fact and was remitted for a fresh decision under section 4(6)(b) of the Safeguarding Vulnerable Groups Act 2006. The Appellant was to remain on the Adults’ Barred List pending that decision.
2. The Upper Tribunal’s jurisdiction under section 4(2) is limited to mistakes of law and material mistakes of fact on which the DBS decision was based. It is not entitled to substitute its own view of whether inclusion on the list is appropriate. It may, however, determine whether the decision is irrational or disproportionate, since that would involve an error of law.
3. The Tribunal applied the principles in PF v DBS [2020] UKUT 256 (AAC), including that it must identify an actual mistake before interfering with the DBS decision. It also applied the distinction in DBS v AB [2021] EWCA Civ 1575 between factual findings and value judgments or evaluations.
4. The risk assessment and Positive Behaviour Support Plan were contradictory and provided limited guidance. They identified self-harm risks, but also required staff to respect the service user’s wishes, adopt a flexible approach to his mood, and withdraw when requested. The documents did not impose a blanket prohibition on leaving items with him. Staff therefore had to make dynamic, minute-by-minute assessments.
5. On the evidence, the Appellant reasonably assessed the service user as settled and happy and permitted him to listen to the CD alone. The DBS had focused on the eventual self-harm and had failed to identify how the wording of the risk assessment or plan had been breached. Its findings that the Appellant had acted as though she knew best, and was callous or lacked empathy, were also factual errors.
6. The Tribunal made findings under section 4(7)(a), but did not direct removal from the list because the appeal concerned only the November incident and the July incident remained unchallenged. The matter was remitted under section 4(6)(b).

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed. The DBS decision was remitted for a fresh decision under section 4(6)(b) of the Safeguarding Vulnerable Groups Act 2006.