NG v Disclosure and Barring Service

An appeal against inclusion on a barred list may succeed only for a mistake of law or a material mistake of fact; the Upper Tribunal cannot simply substitute its view on appropriateness. A mistake of law includes failure to consider relevant matters and a disproportionate interference with Article 8 rights. The absence of proper deprivation-of-liberty authorisation does not conclusively establish harm. DBS must engage with evidence that restrictive measures were intended to protect vulnerable adults, while assessing whether the conduct and future risk justify barring. The Upper Tribunal must give due weight to DBS’s specialist statutory role, but ultimately determines proportionality objectively. Where material errors mean that removal is the only lawful outcome, it must direct removal rather than remit the case.

The appellant appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006 against DBS’s decision to include her on the adults’ barred list. DBS found that she had been complicit in locking residents in their rooms overnight and had verbally abused residents.

The Upper Tribunal heard oral evidence and considered the care home’s poor management, inadequate staffing, the absence of proper capacity assessments and deprivation-of-liberty authorisations, and the limited evidence supporting the allegation of verbal abuse. The central issues were whether DBS had made material mistakes of fact or law and whether barring was a proportionate interference with the appellant’s Convention rights.

1. Appeal allowed. The Tribunal directed DBS to remove the appellant from the adults’ barred list under section 4(6)(a) of the Safeguarding Vulnerable Groups Act 2006.
2. Under section 4, the Upper Tribunal’s jurisdiction was confined to mistakes on points of law or in material findings of fact. It could evaluate the evidence itself when deciding whether DBS had made a factual mistake, but could not undertake a general merits reconsideration of whether barring was appropriate. A mistake of fact could consist of an incorrect, incomplete or omitted finding: PF v Disclosure and Barring Service [2020] UKUT 256 (AAC). A mistake of law included failure to consider relevant matters, irrationality, inadequate reasons, material unfairness and disproportionate interference with Convention rights.
3. DBS had materially erred in its treatment of the locked-room allegation. It failed to consider that CQC had not asked the appellant or the senior member of staff why rooms were locked, failed to engage with evidence about serious understaffing and poor management, and wrongly stated that the appellant had not explained why she was busy. The repeated occurrence of the practice was neutral in context, because the underlying staffing and management problems were likely recurring.
4. The absence of DoLS authorisation established unlawfulness under Article 5, but was not conclusive proof that residents had been harmed or that the appellant posed a future risk. DBS had to engage with evidence that locking rooms was believed to protect residents from wandering or violent residents. It was also relevant that the appellant was junior, inadequately trained and working in a badly managed home.
5. The finding of verbal abuse was unsupported. An unnamed whistleblower’s allegation could not establish that the appellant personally abused residents, and being firm with residents displaying challenging behaviour was not, without more specific evidence, verbal or emotional abuse. The finding was irrational and materially affected DBS’s conclusions about empathy and future risk.
6. DBS’s conclusion that the appellant lacked empathy was also irrational. It failed to consider evidence that her conduct was motivated by concern for residents’ safety, her caring relationship with residents, and the absence of reliable evidence of actual distress caused by the locked rooms. The Tribunal accepted that she was willing and able to learn from the dismissal.
7. The barring decision engaged Article 8 and had to satisfy the proportionality questions identified in ISA v SB [2012] EWCA Civ 977. The Tribunal gave due weight to DBS’s view, but, as a court of full jurisdiction, made its own objective assessment. Barring was more than necessary to protect vulnerable adults and children and failed to strike a fair balance between the appellant’s rights and the public interest. The only lawful outcome was removal, not remittal.
8. The Tribunal also continued anonymity under rule 14. In this jurisdiction, the statutory confidentiality of barred-list information, the appellant’s Article 8 interests and the absence of a countervailing public interest justified anonymisation of the appellant, staff, service users and care home.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal against DBS’s decision dated 18 September 2023 and directed removal from the adults’ barred list under section 4(6)(a) of the Safeguarding Vulnerable Groups Act 2006.