MM v Disclosure & Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may correct a mistaken finding of fact where relevant new evidence permits it to assess the barred person’s denial of wrongdoing. It must distinguish factual findings from evaluative judgments, and a mistake in a subsidiary finding does not warrant allowing the appeal unless the barring decision was based on it.

In determining proportionality, the Tribunal must give appropriate weight to the DBS’s safeguarding expertise. Sexual abuse of a child who was particularly vulnerable to exploitation could rationally support the evaluative conclusion that the person was willing to transgress legal boundaries to meet personal needs. That conclusion could justify barring from work with vulnerable adults, notwithstanding that the proved abuse concerned a child.

The DBS included MM in the children’s and vulnerable adults’ barred lists after finding that she had repeatedly sexually abused her daughter, D, when D was of primary-school age. The DBS also made subsidiary findings that MM had behaved in a manipulative and controlling way. The police had taken no further action and MM was not charged.

MM appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006. She relied on new evidence, including her witness statement and oral evidence. She denied the abuse and challenged the factual findings. She also contended that inclusion in the vulnerable adults’ barred list was irrational and disproportionate because the alleged conduct concerned pre-pubescent girls.

The central issues were whether the DBS had made a material mistake of fact and whether barring MM from work with vulnerable adults was proportionate.

1. Appeal dismissed. The DBS’s decisions to include MM in both barred lists involved no material error of fact or law and were confirmed under section 4(5) of the Safeguarding Vulnerable Groups Act 2006.
2. The Tribunal had received material that was not before the DBS, including MM’s written and oral evidence. It could therefore assess whether her denial was credible and, if necessary, make its own factual finding. It was not confined to asking whether the DBS’s findings were irrational or unsupported: Disclosure & Barring Service v RI [2024] EWCA Civ 95 and Disclosure & Barring Service v JHB [2023] EWCA Civ 982.
3. The Tribunal found, on the balance of probabilities, that MM sexually abused D as alleged. D’s gradual and distressed disclosure, her consistent accounts, her inability to verbalise intimate details, her behavioural history and her strong aversion to contact with MM were consistent with genuine familial sexual abuse. MM’s varying explanations for supposed fabrication were implausible and inconsistent. Her oral denial did not displace the documentary evidence.
4. The Tribunal doubted the correctness of the DBS’s subsidiary findings of manipulative and controlling behaviour. But those findings did not found, or tip the balance towards, either barring decision. The finding of sexual abuse alone was sufficient. Accordingly, even a mistake in the subsidiary findings could not succeed under section 4(2).
5. In respect of vulnerable adults, the relevant risk was not confined to a sexual interest in young girls. The DBS could evaluate the abuse as demonstrating a willingness to transgress legal boundaries to meet personal needs, despite harm to a person in its care. Giving appropriate weight to the DBS’s safeguarding expertise, as required by B v Independent Safeguarding Authority [2013] 1 WLR 308, the Tribunal held that barring was proportionate and therefore not irrational.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the DBS decisions were confirmed under section 4(5) of the Safeguarding Vulnerable Groups Act 2006 ([2024] UKUT 401 (AAC)).
• Disclosure & Barring Service: on 10 August 2021, included MM in the children’s and vulnerable adults’ barred lists.