JA v Disclosure and Barring Service

On an appeal under Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may intervene only if the Disclosure and Barring Service has made a material error of fact or an error of law. A factual error must be material to the decision. The Tribunal may hear oral evidence when determining that issue.

The statutory assessment whether inclusion in a barred list is appropriate is not for the Tribunal to remake. It must decide whether the decision was disproportionate and therefore unlawful, while giving proper weight to the DBS’s specialist protective role. A bar may be proportionate despite serious consequences for employment where a care worker, responsible for remaining awake, creates conditions conducive to sleeping while vulnerable service users depend on that protection.

The DBS included JA in both the children’s and adults’ barred lists after finding that she had slept during a waking night shift and left service users without support for up to one hour.

JA appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006. Permission was granted on two issues: whether the DBS had made a factual mistake about what occurred on 21 January 2022, and whether inclusion in the lists was disproportionate given that this was said to be a single incident in a caring career.

The appeal therefore concerned the limits of factual and legal review under section 4, and whether the decision complied with JA’s rights under Article 8 of the European Convention of Human rights.

1. Appeal dismissed. The Tribunal found no material mistake of fact and no legal error. Under section 4(5) of the Safeguarding Vulnerable Groups Act 2006, it confirmed the DBS decision.

2. For section 4(2)(b), a factual mistake must be material. The Tribunal could hear oral evidence, and the ordinary factual evidence concerning whether JA slept and intended to settle down was not a matter requiring deference to DBS specialist risk expertise. JA bore the burden of proving a mistake.

3. The Tribunal accepted that JA was asleep when the managers arrived. It found, on the balance of probabilities, that she had intentionally settled down to sleep. In any event, the DBS’s core finding remained sound because she slept while under a duty to remain awake and had created conditions conducive to sleep without taking steps to stay alert. The precise duration of the absence of support was not material and there was no evidential basis for finding the DBS’s maximum estimate mistaken.

4. For section 4(2)(a), the Tribunal could not make its own assessment of whether inclusion was appropriate. Its task was to determine whether the decision was disproportionate and hence an error of law. That assessment had to recognise the DBS’s specialist statutory role.

5. The Article 8 assessment was adequate. Although the bar seriously affected JA’s employment prospects and the incident was isolated, the legislation offered only the alternatives of barring or not barring; it did not permit suspension or conditions. JA was an experienced waking-night worker and the first line of protection for the residents. On the facts found, barring her from regulated activity with children and vulnerable adults was a necessary and proportionate safeguarding measure.

• Upper Tribunal (Administrative Appeals Chamber): JA’s appeal from the DBS decision letter of 17 July 2022 was dismissed. The decision to include JA in the children’s and adults’ barred lists was confirmed.

• Disclosure and Barring Service: Included JA in both barred lists following its finding that she slept during a waking night shift.