AVS v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may make its own findings on all the evidence, including oral evidence, to determine whether the DBS made a material factual mistake on which its barring decision was based. It may not substitute its own assessment of the appropriateness of listing or of future risk, save where that assessment is affected by factual error or legal error.

Where material factual findings supporting a discretionary barring decision are erroneous, the usual course is remission to the DBS for a fresh decision based on the Tribunal’s findings. Removal is appropriate only where no lawful decision other than removal is possible. Relevant conduct includes conduct which, if repeated against another child, would be likely to put that child at risk of harm.

AVS v Disclosure and Barring Service was an appeal against the DBS decision of 20 June 2022 to place a foster carer on the Children’s Barred List under paragraph 3 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.

The DBS had found five instances of relevant conduct concerning the appellant’s care of a vulnerable child, including hospital attendance, contact after the placement ended, an early-morning routine, medication, and alleged conduct towards schoolgirls in 2018. The appellant challenged those findings as factual errors and challenged the resulting barring decision.

The Tribunal heard the appellant’s oral evidence and considered further contemporaneous material. The central issue was whether the DBS’s factual findings were materially mistaken and, if so, whether the proper remedy was removal or remission.

1. Appeal allowed and remitted. The DBS made material factual mistakes in the first, third and fifth findings of relevant conduct, and in part of the second finding. Those mistakes made a material contribution to the decision to bar the appellant. The decision was remitted under section 4(6)(b) of the Safeguarding Vulnerable Groups Act 2006 for a fresh decision based on the Tribunal’s factual findings.

2. The Tribunal applied PF v DBS [2020] UKUT 256 (AAC), as confirmed in DBS v RI [2024] EWCA Civ 95. In deciding whether there is a material mistake of fact, it may consider all the evidence before it, receive oral evidence, make its own factual findings and draw inferences. It must distinguish factual findings from evaluative judgments about risk and appropriateness, which ordinarily remain for the DBS.

3. The narrow finding that the appellant failed to relieve a support worker at hospital was mistaken. He did attend and relieve the worker. The Tribunal also rejected findings that he woke the child at 5.30am, caused tiredness and lethargy, and committed the 2018 allegations involving pornography, an airgun and inappropriate comments. On the Tribunal’s findings, those matters did not establish relevant conduct.

4. The contact finding was upheld only in part. The appellant contacted the child for two days after a social worker had requested no contact for the child’s wellbeing. If repeated in relation to another vulnerable child, that conduct would be likely to put the child at risk of emotional or psychological harm and was capable of being relevant conduct. The DBS was, however, mistaken in finding that the appellant had shared information about the fostering investigation during that initial contact or had influenced the child to support his return.

5. The medication finding stood in its narrow terms. The appellant failed to dispose of medication later used by the child in an overdose. That was capable of being relevant conduct, although the Tribunal found his culpability and causal connection to the overdose substantially mitigated.

6. Removal was not directed because the upheld parts of the contact finding and the medication finding could amount to relevant conduct. The DBS must reconsider appropriateness and proportionality. The appellant was directed to remain on the Children’s Barred List pending that fresh decision under section 4(7)(b).

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal from the DBS decision of 20 June 2022 and remitted the discretionary barring decision under section 4(6)(b) of the Safeguarding Vulnerable Groups Act 2006.
• Disclosure and Barring Service: Included the appellant on the Children’s Barred List on 20 June 2022 under paragraph 3 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.