FH v The Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may hear and rely on evidence that was not before the Disclosure and Barring Service. A mistake of fact requires more than a competing view of the evidence. The Tribunal must be satisfied that the finding was wrong and that objective grounds require a different conclusion. It must identify an error in the decision-maker’s approach before assessing the evidence as a whole. Where a mistake in a finding of fact is established, the Tribunal must direct removal from the relevant barred list.

The Disclosure and Barring Service decided on 7 December 2022 to place FH on both the children’s and adults’ barred lists. It found that she had struck a five-year-old pupil while working as a teaching assistant. FH denied striking the child and appealed to the Upper Tribunal under section 4 of the Safeguarding Vulnerable Groups Act 2006.

After hearing evidence from FH and considering the witnesses’ accounts, the Tribunal considered whether DBS had made a mistake in the finding of fact on which its decision was based.

1. The appeal was allowed. Under section 4(2)(b) of the Safeguarding Vulnerable Groups Act 2006, the Tribunal applied the approach in Disclosure and Barring Service v JHB [2023] EWCA Civ 982. It could hear new evidence and rely on it in deciding whether DBS had made a mistake of fact.

2. A finding is not shown to be mistaken merely because the Tribunal prefers another view or because the original finding was irrational. The evidence must require a different view on objective grounds. The Tribunal must first identify an error of fact in DBS’s approach before making its own assessment of the evidence as a whole. The test stated in Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56 was applied through that approach.

3. FH’s evidence about her position, the distance and angle from which the witnesses observed her, the background noise and the gestures she used was new evidence capable of affecting the reliability of DBS’s finding. The Tribunal accepted that evidence and identified an error in DBS’s approach.

4. Assessing the evidence as a whole, the Tribunal found significant inconsistencies in the witnesses’ accounts. It rejected the alleged force of the blow, the witnesses’ claimed ability to see FH’s facial expression and their accounts of the surrounding sounds. It accepted that FH may have made accidental contact while trying to free her hair, but found no basis for concluding that she intentionally struck the child.

5. DBS had therefore made a mistake in the finding of fact on which its decision was based. Section 4(6)(a) required the Tribunal to direct DBS to remove FH from both barred lists. That was the only possible outcome once the factual basis for inclusion had failed.

• Upper Tribunal (Administrative Appeals Chamber): Appeal from DBS’s decision dated 7 December 2022. The Tribunal allowed the appeal and directed removal from both barred lists.