AG v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal must determine whether the Disclosure and Barring Service made a mistake of law or fact on which its barring decision was based. The Tribunal may hear evidence, assess it for itself and make findings of fact. A mistake in a material finding may justify remittal for a fresh proportionality assessment, even where the remaining findings could support inclusion in the barred list. The Tribunal may set out findings on which the fresh decision must be based and may direct that the person remain listed pending that decision.

The Disclosure and Barring Service decided on 6 September 2023 to include AG in the adults’ barred list under Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. It found that, as manager of supported-living homes for adults with learning difficulties, she knew residents were being given high-risk foods, failed to monitor meals and staff compliance with dietary guidance, and failed to maintain adequate food diaries.

AG appealed to the Upper Tribunal on the ground that DBS had made mistakes of fact. Permission was granted and the appeal was heard orally. The central issues were whether DBS’s findings were sustainable and, if not, what disposal was required under section 4.

1. Jurisdiction and approach. Under section 4(2) of the Safeguarding Vulnerable Groups Act 2006, the appeal was confined to mistakes of law or fact on which the DBS decision was based. Following RI v Disclosure and Barring Service [2024] 1 WLR 4033, the Tribunal heard evidence, assessed it for itself and made its own findings. It also relied on the specialist members’ practical knowledge and experience, as discussed in CM v Disclosure and Barring Service [2015] UKUT 707 (AAC).
2. Findings. AG’s managerial responsibilities included overall responsibility for the operational management of the homes and implementation of support plans and risk assessments. Monitoring food diaries fell within those responsibilities. The evidence established that TA was regularly given high-risk foods and that the food diaries were insufficiently particularised. AG had failed to monitor meals and diaries and had failed to communicate and oversee compliance with TA’s dietary requirements.
3. Mistake of fact. DBS had, however, made a mistake in finding that AG was aware that residents were being given high-risk foods. The Tribunal found that she was not aware of what residents were being fed. That finding removed any suggestion of conscious disregard, although it also demonstrated the inadequacy of her management and monitoring.
4. Disposal. The mistake was significant and justified a new proportionality assessment. The Tribunal found no mistake of law in DBS’s conclusion that inclusion had been proportionate on the findings previously made, but considered it preferable for DBS to reassess proportionality in light of the corrected factual position. The matter was remitted to DBS for a new decision under section 4(6)(b) and (7). The Tribunal made findings of fact for DBS to use and directed that AG remain in the adults’ barred list pending the new decision.

• Disclosure and Barring Service: Decision dated 6 September 2023 including AG in the adults’ barred list.
• Upper Tribunal (Administrative Appeals Chamber): Found a material mistake of fact, remitted the matter to DBS for a new decision and directed that AG remain listed pending that decision.