JC v The Disclosure and Barring Service

An appeal against inclusion on a barred list under Safeguarding Vulnerable Groups Act 2006, section 4, is confined to a material mistake of law or fact. It does not permit the Upper Tribunal to reconsider whether barring is appropriate.

On an appeal alleging factual error, the Tribunal may hear oral evidence and assess it with the documentary material as a whole. It may make findings of primary fact, including credibility findings. It must nevertheless distinguish findings of fact from evaluative judgments about the relevance or weight of facts when assessing risk or appropriateness.

If no material factual or legal error is established, section 4(5) requires confirmation of the DBS decision.

The Disclosure and Barring Service decided on 7 April 2022 to include JC on both the Children’s Barred List and the Adults’ Barred List under the Safeguarding Vulnerable Groups Act 2006. It found that, in 1998, JC had abused a position of trust as a youth worker by engaging in sexual conduct, including intercourse, with NR when she was 15.

JC appealed to the Upper Tribunal. He accepted intercourse but disputed that he knew NR’s age. The central issue was whether the DBS had made a material factual mistake in finding that he knew, or was aware of circumstances showing, that NR was a child.

1. Appeal dismissed. The Tribunal found no material mistake of fact or error of law in the DBS decision. It was therefore bound by section 4(5) of the Safeguarding Vulnerable Groups Act 2006 to confirm JC’s inclusion on both barred lists.

2. The statutory appeal is limited. The Tribunal may determine mistakes of law and material factual mistakes, but the statutory judgment whether inclusion is appropriate is neither a question of law nor fact and is not appealable.

3. Where oral evidence is given on an appeal under section 4(2)(b), the Tribunal may assess that evidence and the written material together, including by making primary findings as to credibility. This is not an impermissible re-evaluation of the DBS’s paper decision. The Tribunal must, however, keep factual findings separate from evaluative judgments about risk, relevance, weight and appropriateness.

4. Having heard JC and assessed the evidence, the Tribunal rejected his account that he reasonably believed NR was 18. It found that he had met her through the school or centre, knew that the confirmation group comprised young people of about 14 or 15, and was told or otherwise alerted to her age. It also found that NR’s mother warned him off when NR was 15. JC had at least wilfully closed his eyes to NR’s age and had failed to appreciate the breach of trust inherent in his role.

5. Those findings meant that the DBS had not made a material factual mistake in relying on the conduct supporting its barring decision. The decision was confirmed.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and confirmed the DBS decision.
• Disclosure and Barring Service: on 7 April 2022 included JC on the Children’s Barred List and the Adults’ Barred List under the Safeguarding Vulnerable Groups Act 2006.