JE v The Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may receive and assess an appellant’s oral evidence to determine whether the DBS made a factual mistake. It may not simply substitute its assessment of the written material for that of the DBS.

A factual mistake may concern primary facts, inferences, omissions or states of mind, but must be material to the barring decision. Evaluative judgments about risk and appropriateness remain for the DBS. Where unreliable evidence materially underlies the decision, the Tribunal must grant the statutory remedy. Removal, rather than remittal, may be appropriate where the errors go to the nature of the decision and the circumstances do not justify a fresh DBS decision.

JE v The Disclosure and Barring Service was a statutory appeal against the DBS’s final decision of 8 August 2022 to place JE on both the Adults’ and Children’s Barred Lists under the Safeguarding Vulnerable Groups Act 2006.

The DBS relied on an incident in which JE did not use a hoist when transferring a non-weight-bearing service user. It also found that JE had moved the service user alone, lifted her by her underwear, had previously used similar methods, and was generally rough, abrupt and brusque. Permission was granted on the basis that factual mistakes might have been made.

The central issue was whether the DBS had made material mistakes of fact within section 4 of the 2006 Act and, if so, whether JE should be removed from the lists or the matter remitted.

1. Appeal allowed in full. The DBS was directed to remove JE’s name from both barred lists.

2. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Tribunal’s role is confined to mistakes of law or material fact. It may hear oral evidence and find that an appellant’s denial is credible. That differs from re-evaluating only the written evidence that was before the DBS. The Tribunal must also distinguish factual findings from evaluative judgments about relevance, weight, risk and appropriateness, which are generally for the DBS.

3. The Tribunal found that the DBS had relied on insufficiently reliable evidence. JT was the sole eyewitness. His account of requiring the service user to stand while changing a pad was not accepted. The Tribunal found missing evidence about the incident, questioned JT’s credibility, and found no evidential support for the alleged lifting by underwear.

4. The DBS’s findings that JE had a generally rough, abrupt and brusque approach were also factual mistakes. They rested on JT’s unsupported assertion and had not been properly put to JE. JE admitted failing to use the hoist, but that admission did not establish the more serious factual findings relied on by the DBS.

5. The mistakes were material because they went to the nature of the barring decision and could have changed its outcome. Although remittal is ordinarily available after a material mistake, removal was appropriate here. The incident was a one-off, three years had passed, and the unreliable findings materially affected the decision.

• Upper Tribunal (Administrative Appeals Chamber): allowed JE’s statutory appeal from the DBS final decision of 8 August 2022 and directed removal from both barred lists.
• Disclosure and Barring Service: decided to include JE on the Adults’ and Children’s Barred Lists.