DMR v Disclosure and Barring Service

For the Safeguarding Vulnerable Groups Act 2006, holding controversial beliefs, or expressing them privately, is not itself relevant conduct and does not establish a risk of harm to children. A person engaged in regulated activity with children must, however, take care when expressing views on sensitive matters such as gender identity, sexuality and abortion. Statements made without due care may amount to relevant conduct where they cause, or if repeated may cause, emotional harm. The Upper Tribunal may review mistakes of fact or law, but not the DBS’s evaluative judgment about appropriateness except on rationality or proportionality grounds. An error in relying on conduct unrelated to children will not justify relief if the barring decision would inevitably have been the same without it.

The Disclosure and Barring Service placed an English teacher on the children’s barred list after finding that comments made to pupils about gender, sexuality, gay marriage and abortion, together with comments to a pupil questioning their gender identity, amounted to relevant conduct. It also relied on racist and homophobic jokes told to colleagues. The appellant argued that the decision was premature pending Teaching Regulation Agency proceedings, that his conduct was not criminal, and that barring him for expressing personal beliefs was unlawful and disproportionate.

The appeal concerned the statutory meaning of relevant conduct, the Upper Tribunal’s jurisdiction under section 4 of the Safeguarding Vulnerable Groups Act 2006, and whether the decision was affected by a material mistake of fact or law.

1. Appeal dismissed. The DBS decision was not based on any material mistake of fact or law, and the Barring Decision was confirmed.
2. Under paragraph 4 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006, relevant conduct includes conduct which harms or risks harming a child, or which would do so if repeated. Harm is not confined to physical, sexual or financial harm and may be psychological or emotional.
3. The appellant’s beliefs were lawful beliefs which he was entitled to hold. The DBS had not acted as thought police. The relevant distinction was between holding or privately expressing beliefs and expressing sensitive views to pupils without due care. In the classroom context, such statements could cause emotional harm or create a risk of emotional harm if repeated.
4. The appellant’s comments were made while he was the adult teacher responsible for pupils, including a pupil questioning their gender identity. The Tribunal found that the comments risked emotional harm and that the appellant’s purported offer of support to that pupil failed to accord appropriate dignity and respect. The DBS was therefore entitled to treat the conduct as relevant conduct.
5. The jokes told to colleagues were inappropriate and racist or homophobic in character, but there was no compelling evidence that the appellant would repeat them to children. It was irrational for the DBS to rely on them as relevant conduct under paragraph 4(1)(b). That error was immaterial because the pupil-related conduct independently justified barring, and the decision remained proportionate.
6. The DBS was not required to await the outcome of separate Teaching Regulation Agency proceedings. The statutory test did not require the conduct to be criminal. Given the potential for serious emotional harm, inclusion on the children’s barred list was not disproportionate.

• Upper Tribunal (Administrative Appeals Chamber) [2024] UKUT 426 (AAC): appeal against the DBS decision of 14 September 2022 dismissed; the Barring Decision confirmed.