CC v Disclosure and Barring Service

Under Tribunal Procedure (Upper Tribunal) Rules 2008, r 10(3)(d), costs are exceptional. A costs order requires unreasonable conduct in bringing, defending or conducting proceedings; success or failure alone does not establish unreasonableness.

The decisive question is whether the conduct permits a reasonable explanation. The jurisdiction must be exercised with significant restraint. In assessing a public protection body’s conduct, the Tribunal may take account of its protective and forward-looking statutory function and the information available to it when it acted.

Following the appellant’s successful appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal had remitted the matter to the Disclosure and Barring Service (DBS) for a fresh decision. The appeal had succeeded because the Tribunal found that the DBS had made a mistake of fact in finding that the appellant had masturbated in his car.

The appellant then sought costs under r 10(3)(d) of the Tribunal Procedure (Upper Tribunal) Rules 2008, alleging that the DBS had acted unreasonably in barring him and in defending the appeal. The DBS opposed the application. The issue was whether its conduct met the required threshold for a costs order.

1. The costs application was dismissed. The appellant’s success in the substantive appeal did not itself establish that the DBS had acted unreasonably for the purposes of r 10(3)(d) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

2. The applicable question was whether the DBS’s conduct permitted a reasonable explanation. That standard does not treat conduct as unreasonable merely because it proves unsuccessful or because a more cautious representative might have acted differently. The Tribunal also applied the guidance that the costs jurisdiction should be exercised with significant restraint: Cancino (costs – First-tier Tribunal – new powers) [2015] UKFTT 00059 (IAC) and Thapa v Entry Clearance Officer [2018] UKUT 54 (IAC).

3. The DBS had a reasonable explanation for defending the appeal. On the information supplied by the police, it believed that the appellant had masturbated in a car on ten occasions. Although that evidence was later tested and the Tribunal made a different factual finding, there had been competing considerations and a full hearing was appropriately required.

4. The Tribunal took account of the DBS’s protective, forward-looking function in preventing harm to children and vulnerable adults. It was not acting as a prosecutor or adjudicator: R (on the application of SXM) v DBS [2020] EWHC 624 (Admin). In that context, its decision to bar the appellant, and its defence of the appeal, were reasonably explicable.

5. The earlier appeal was allowed and remitted because of a mistake of fact. The Tribunal had therefore not determined proportionality, and the psychiatric evidence and proportionality arguments did not assist the costs application.

• Upper Tribunal (Administrative Appeals Chamber): On 16 January 2024, the substantive appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006 was allowed and remitted to the DBS for a fresh decision after a mistake of fact was found.
• Upper Tribunal (Administrative Appeals Chamber): The appellant’s subsequent application for costs under r 10(3)(d) of the Tribunal Procedure (Upper Tribunal) Rules 2008 was dismissed.