SS v The Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may correct a material mistake of fact but may not substitute its own assessment of risk or of the appropriateness of barring. A conclusion that misconduct is likely to recur must have an evidential basis.

An immediate admission and apology may be material facts when assessing whether repetition is likely. Where the DBS made material factual mistakes, the usual course is remittal for a fresh decision. Removal from the barred lists is appropriate only if no other lawful decision is possible.

The appellant, a registered nurse, was dismissed after an unannounced night visit found her apparently asleep while on duty at a care home and identified pre-completed repositioning records. The DBS decided to place her indefinitely on the Adults’ and Children’s Barred Lists.

She appealed to the Upper Tribunal, alleging that the DBS had failed properly to consider her apology, employment history, subsequent work, lack of intention to cause harm, reflections and the evidential basis for a conclusion that the conduct was likely to recur. The central issue was whether the DBS had made a material error of law or fact within section 4 of the Safeguarding Vulnerable Groups Act 2006.

1. The appeal was allowed in part and remitted to the DBS for a fresh decision. The Tribunal found material mistakes of fact, but not such as to make removal from both barred lists the only lawful outcome. SS was to remain on both lists pending the fresh decision.

2. The Tribunal applied the statutory limits on its jurisdiction. It could determine errors of law and material fact, including factual inferences, but could not replace the DBS’s evaluative assessment of risk or appropriateness with its own assessment.

3. The DBS’s conclusion that the conduct was likely to recur lacked an identified evidential foundation. There was one reported incident, no prior or later comparable incident, and contradictory evidence concerning whether advance completion of records was a regular practice. The unsupported finding of likely repetition was therefore a material mistake of fact.

4. The Tribunal also found that the DBS had not taken the immediate admission and apology into account when assessing the likelihood of repetition. That omission was a further material mistake of fact. The appellant’s long service was capable both of supporting her case and of aggravating the seriousness of conduct which an experienced nurse should have known was unacceptable.

5. The remaining grounds failed. The Tribunal held that a lack of intention to cause harm did not prevent conduct from endangering a vulnerable adult under the statutory scheme. It also rejected challenges based on public interest, unsupported post-dismissal employment, reflections without evidential support, and the possible relevance of the conduct to future work with children.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal in part against the DBS final decision of 23 October 2023 and remitted the matter for a fresh decision. SS was directed to remain on the Adults’ and Children’s Barred Lists in the interim.
• Disclosure and Barring Service: decided to include SS indefinitely on both barred lists under the Safeguarding Vulnerable Groups Act 2006.