MSB v Disclosure and Barring Service

Under section 4(6) of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal must direct removal from a barred list where removal is the only decision that the Disclosure and Barring Service could lawfully reach on the law and facts found by the Tribunal. That power is not confined to cases where every factual finding is displaced. The Tribunal must apply the statutory test to the individual circumstances, rather than treating an illustration in earlier authority as a limiting rule. A single, historic failure to report, followed by a decade of satisfactory regulatory dealings and no repetition, may make barring irrational.

The Disclosure and Barring Service included MSB in both barred lists after finding that she had failed to notify Ofsted about her future husband’s conditional discharge and about allegations concerning her son. It also found that she had minimised the earlier offence, failed to respond appropriately to the allegations, and was likely to disregard safeguarding responsibilities in future.

MSB appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006. After hearing her evidence, the Upper Tribunal found mistakes in all findings except the failure to report the conditional discharge. The central issue was whether the remaining finding required remittal to the DBS or whether removal from both lists was the only lawful outcome.

1. Jurisdiction and disposal. The appeal was confined to the grounds for which permission had been granted. The Tribunal had heard evidence from MSB and was entitled to determine the factual mistakes. The later Court of Appeal decisions confirmed that the narrower approach in Disclosure and Barring Service v JHB [2023] EWCA Civ 982 did not prevent the Tribunal from hearing evidence and deciding factual issues.
2. Statutory test. Section 4(6)(a) permits a direction requiring removal where that is the only decision that the DBS could lawfully reach in light of the law and the facts found by the Upper Tribunal. The Tribunal has no power itself to remove a person from a list. The statutory power is not limited to cases in which every finding made by the DBS is mistaken. The example in Disclosure and Barring Service v AB [2021] EWCA Civ 1575, reported at [2022] 1 WLR 1022, illustrates the test but does not restrict it.
3. Application. The Tribunal found that MSB had failed to report her future husband’s 2012 conditional discharge, but had not minimised the offence. The rape-related findings and the general conclusions about future safeguarding failures were mistaken. The remaining failure was isolated, historic, committed when MSB was relatively new to the childminding business, and followed by a warning from Ofsted, satisfactory inspections, no repetition and evidence that she understood safeguarding duties.
4. The Tribunal assumed, without deciding, that a mere failure to report could constitute relevant conduct. On the facts found, barring MSB would nevertheless be irrational. Removal from both barred lists was therefore the only lawful decision, and the DBS was directed under section 4(6)(a) to remove her.

• Disclosure and Barring Service: By decision letter dated 24 June 2022, MSB was included in both the children’s and adults’ barred lists.
• Upper Tribunal (Administrative Appeals Chamber): Permission to appeal was granted. After an oral hearing and factual findings, the Tribunal directed the DBS to remove MSB from both lists under section 4(6)(a) of the Safeguarding Vulnerable Groups Act 2006.