NC v The Disclosure and Barring Service

An appeal against inclusion on the children’s and adults’ barred lists may succeed only for a material error of law or fact. The Upper Tribunal cannot reconsider whether barring is appropriate on the merits. Conduct may be relevant conduct under paragraphs 4(1)(b) and 10(1)(b) of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 even where the affected person was unaware of the conduct and suffered no immediate harm. Section 58 does not exclude activity undertaken in a family or personal relationship from consideration as relevant conduct. Where the statutory conditions for barring are met, proportionality review is narrow. The Tribunal must respect the DBS’s evaluative judgment and cannot substitute its own assessment of the weight of the evidence.

NC appealed against the DBS’s decision of 22 October 2021 to include her on both barred lists. She had filmed a vulnerable adult asleep without consent, sent the videos to a colleague who was also her partner, and participated in derogatory messages about the service user. The facts were undisputed.

Permission was granted on two grounds. The first concerned whether the conduct was relevant conduct where the service user was unaware of it and was not immediately harmed. The second concerned proportionality, including the private sharing of the video, the one-off nature of the incident, remorse and NC’s employment history. The Tribunal also considered whether section 58 of the Safeguarding Vulnerable Groups Act 2006 restricted the DBS’s consideration of the conduct.

1. Appeal dismissed. The DBS was entitled to rely on the filming, sharing of the videos and the related conversation when deciding whether NC had engaged in relevant conduct. Section 58 of the Safeguarding Vulnerable Groups Act 2006 concerns the activities which the Act does not prevent a person from undertaking in a family or personal relationship. It does not limit the evidence or conduct which may be considered under paragraphs 4 and 10 of Schedule 3. The statutory structure, including section 6, supports that interpretation.
2. The DBS was entitled to rely on the repeated-conduct limb in paragraphs 4(1)(b) and 10(1)(b) of Schedule 3. Conduct may qualify because, if repeated against or in relation to another child or vulnerable adult, it would be likely to cause harm or put that person at risk of harm. The test is not confined to repetition of conduct which remains unknown to the affected person. Unconsented filming and derogatory comments could expose a person to a breach of privacy and dignity and an obvious risk of harm.
3. The Tribunal’s jurisdiction was narrow. Under section 4(3), appropriateness of inclusion was not itself a question of law or fact. The statutory scheme did not permit consideration of whether a less intrusive outcome could have been used once the relevant statutory conditions were satisfied. The proportionality challenge therefore substantially amounted to a rationality challenge.
4. The DBS had considered NC’s representations and the relevant matters, including the one-off nature of the conduct, private sharing, remorse, work history and claimed lack of future risk. The weight given to those matters was for the DBS. Its conclusion was rationally open to it and was not one which no reasonable decision-maker could have reached.
5. Reliance on the evidence did not unlawfully breach Article 8. Even if the conduct engaged NC’s private life or correspondence, reliance on it was justified under Article 8(2) for safeguarding and the protection of others.

• Upper Tribunal (Administrative Appeals Chamber): the appeal against the DBS decision of 22 October 2021 was dismissed. The Tribunal confirmed that the DBS’s decision to include NC on both barred lists stood.