DAK v Disclosure and Barring Service

An appeal under section 4(2) of the Safeguarding Vulnerable Groups Act 2006 permits the Upper Tribunal to determine whether the DBS made a material mistake in a finding of fact on which a barring decision was based. Where the Tribunal hears relevant oral evidence, it may evaluate that evidence with the documentary material and overturn the DBS finding if satisfied, on the balance of probabilities, that the alleged conduct did not occur. The Tribunal must distinguish findings of fact from the DBS’s evaluative judgment about appropriateness, which is not appealable. If a material mistake is established and the person therefore did not engage in relevant conduct, removal from the barred list may be directed where no other decision is possible.

The DBS included the appellant on the adults’ and children’s barred lists after an alleged incident during a night shift at a care home for people with severe autism and other disabilities. It alleged that she had restricted a vulnerable resident’s movement by placing a chair against his bedroom door and had slept on duty. The children’s listing was later removed.

The DBS made its decision on documentary material alone. On appeal, the Upper Tribunal heard extensive oral evidence from the appellant and her shift leader. The central issue was whether the DBS had made material mistakes of fact in finding that the chair had restricted access and that the appellant was asleep.

1. Appeal allowed. The Upper Tribunal found that the DBS had made at least two material mistakes of fact on which its decision was based: the chair had not been wedged or barricaded so as to restrict access to the lounge, and the appellant had not been asleep or attempting to sleep.
2. The statutory appeal under section 4(2) of the Safeguarding Vulnerable Groups Act 2006 is confined to mistakes of law or fact. The question whether inclusion in a barred list is appropriate is excluded by section 4(3). The Tribunal must therefore distinguish factual findings from evaluative judgments about the relevance or weight of facts in assessing appropriateness.
3. Where the DBS has decided the case on documents but the Upper Tribunal hears relevant oral evidence tested in cross-examination, the Tribunal is not restricted to identifying a wholly new factual matter. It may assess the evidence for itself and conclude that the DBS was mistaken about whether the appellant committed the relevant act. The approach in DBS v JHB was confined, as explained in DBS v RI, to cases in which the Upper Tribunal has the same material as the DBS or hears no relevant oral evidence.
4. The documentary case was weak. It depended substantially on untested hearsay, unclear interview notes and a poor investigation report. The appellant and her shift leader gave credible and reliable oral evidence. On the balance of probabilities, the alleged restriction and sleeping were not proved.
5. Because the appellant had not engaged in relevant conduct under paragraphs 9 and 10 of Schedule 3, there was no basis for her inclusion on a barred list. Pursuant to section 4(6)(a), the Tribunal directed the DBS to remove her name from the adults’ barred list rather than remit the matter for a fresh decision.

• Upper Tribunal (Administrative Appeals Chamber): appeal against the DBS decision dated 21 September 2022 allowed. The Tribunal directed removal from the adults’ barred list under section 4(6)(a) of the Safeguarding Vulnerable Groups Act 2006.