XYZ v DBS

An appeal against a barring decision is confined to mistakes of law and findings of fact on which the decision was based. The Upper Tribunal may consider later and oral evidence, but must identify a mistaken finding rather than substitute its own view. Findings by another regulator are evidence and do not ordinarily bind the DBS or the Upper Tribunal. The DBS need not await related proceedings before making a final barring decision.

The appellant, a former PE teacher, appealed against the DBS decision to include his name in the Children’s Barred List. The DBS decision preceded a later Teaching Regulation Agency decision, reached after an oral hearing, which made narrower findings and did not find sexual conduct or motivation proved.

The issues were whether the DBS had to await the TRA proceedings, whether the TRA’s findings bound the DBS or Upper Tribunal, and whether the DBS decision was based on a material mistake of fact.

The appeal was dismissed and the DBS decision confirmed.

1. The Safeguarding Vulnerable Groups Act 2006 did not require DBS to await related proceedings or provide for an interim barring decision. The statutory review mechanisms contemplated that a final decision could stand despite later contradictory findings.
2. The TRA decision was evidence of what occurred and why. It was not binding on DBS or the Upper Tribunal. The Upper Tribunal had to assess all the evidence and give the TRA decision appropriate weight.
3. On a statutory mistake-of-fact appeal, the Upper Tribunal may consider later evidence, including oral evidence. It must identify a finding that was wrong, rather than merely substitute its own assessment for a reasonable assessment open to DBS.
4. The inaccurate statement that the appellant had not challenged the DBS findings was immaterial because the wider decision record showed that his representations and denials had been considered.
5. The DBS findings concerning an inappropriate relationship, kissing, sexual interest and an exploitative attitude were reasonably open on the evidence. The later evidence did not establish any material mistake of fact.

1. Teaching Regulation Agency: On 23 August 2021, the professional conduct panel made narrower findings after an oral hearing. Its decision was not appealed.
2. Upper Tribunal: The appeal against the DBS decision of 15 September 2020 was dismissed and the decision confirmed.