MMN v Disclosure and Barring Service

On an appeal under the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may intervene where DBS made a material error of fact on which its barring decision was based. The Tribunal does not itself decide whether inclusion in a barred list is appropriate.

Where erroneous findings materially informed the decision, the proper course is ordinarily to remit the matter to DBS for a fresh decision on the facts found by the Tribunal. Removal from the list is appropriate only where, on the law and those facts, it is the only lawful decision open to DBS.

MMN v Disclosure and Barring Service was an appeal against DBS’s decision of 12 September 2022 to include the appellant, an agency support worker, in the adults’ barred list.

DBS found that, during a shift with two vulnerable adults, he had neglected their basic care needs, bent one adult’s finger back, removed a skin tag, and failed to record medication. The appellant denied the allegations.

The Upper Tribunal considered whether DBS had made errors in factual findings on which its decision was based, whether any such errors were material, and whether it should direct removal from the list or remit the matter for DBS to decide afresh.

1. Appeal allowed. The Tribunal unanimously found no error in DBS’s neglect finding and found that the appellant had administered medication without signing for it. By majority, however, it found that DBS had erred in finding that he bent VA1’s finger back and removed a skin tag. Those allegations emerged only in later accounts and were materially less well supported than the near-contemporaneous evidence concerning neglect.

2. The errors were material. DBS’s decision letter and barring decision summary consistently relied on the finger-bending and skin-tag findings together with neglect when assessing lack of empathy and irresponsible or reckless behaviour.

3. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Tribunal could correct factual findings on which the decision was based, but appropriateness of inclusion is not a question of law or fact for it to determine. Applying DBS v AB [2021] EWCA Civ 1575, removal should be directed only if it is the only lawful decision on the facts found.

4. That threshold was not met. The matter was remitted to DBS for a fresh decision on the Tribunal’s findings of fact. The appellant was directed to remain on the adults’ barred list pending that decision.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal against DBS’s barring decision of 12 September 2022, set aside its material factual findings to the extent identified, and remitted the matter to DBS for a fresh decision.
• Disclosure and Barring Service: decided to include MMN in the adults’ barred list under Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.