HLF v The Disclosure and Barring Service

An appeal against a barring decision may succeed where the Disclosure and Barring Service made a material mistake of fact on which the decision was based. The Upper Tribunal must determine the factual issue on the evidence before it, applying the balance of probabilities. Evidence that an offence probably occurred does not establish that the appellant was the perpetrator. Where the principal allegation is not proved, a less serious allegation may still be insufficient, taken alone, to justify inclusion on a barred list. The Tribunal may direct removal from the list after finding a material mistake of fact.

The Disclosure and Barring Service included the appellant on the Children’s Barred List under the Safeguarding Vulnerable Groups Act 2006. The decision relied principally on allegations that, when aged 15, he had sexually assaulted a 12-year-old girl, together with a separate allegation involving a 13-year-old girl.

The appellant denied the principal allegations. The criminal prosecution had ended without the complainant giving evidence, and the alleged text messages were unavailable to the Tribunal. The appeal concerned whether the DBS had made a mistake of fact in finding the principal allegations proved and, if so, whether the appellant should remain on the list.

1. The appeal was allowed. The DBS decision involved a material mistake of fact, and the DBS was directed to remove the appellant from the Children’s Barred List.
2. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the appeal was confined to a mistake of law or fact on which the DBS decision was based. Whether inclusion was appropriate was not itself a question of law or fact.
3. The Tribunal accepted that it was more likely than not that the complainant had been raped. That did not establish, on the balance of probabilities, that the appellant had committed the assault. The evidence identifying him was materially weakened by inconsistencies in the dates, the absence of conclusive DNA evidence, uncertainty about whether the parties knew each other, inconsistencies in the surrounding evidence, and the absence of the alleged text messages.
4. The Tribunal declined to speculate about the contents or provenance of unavailable messages. Evidence that the complainant showed trauma was consistent with an assault but did not identify the person responsible. The appellant’s previous aggression and ADHD diagnosis did not make the alleged conduct more likely.
5. The principal allegation was therefore not proved on the balance of probabilities. The second allegation, even taken at its highest, was insufficient by itself to justify barring. The DBS’s finding that the principal allegation was proved was a material mistake of fact affecting the barring decision.
6. The Tribunal made anonymity and related reporting orders under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

• Disclosure and Barring Service: on 9 January 2023, included the appellant on the Children’s Barred List.
• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, found a material mistake of fact, and directed removal from the list.