TM v The Disclosure and Barring Service

An appeal against a barring decision under the Safeguarding Vulnerable Groups Act 2006 is limited to mistakes of law or findings of fact. The Upper Tribunal cannot review whether inclusion on a barred list was appropriate, because that is expressly excluded from the appeal jurisdiction. A challenge to the level of risk involves the evaluative weighting of static, dynamic and contextual factors and remains for the Disclosure and Barring Service. Where no material legal or factual mistake is established, the Tribunal must confirm the barring decision.

The Appellant appealed against the Disclosure and Barring Service’s decision of 16 November 2022 to include her on the Children’s Barred List. The decision followed two incidents involving alleged emotional and verbal abuse of a foster child. The Appellant argued that the DBS had made factual mistakes, failed to give sufficient weight to relevant circumstances, failed to conduct a proper risk assessment and reached a disproportionate decision.

The Upper Tribunal considered the statutory limits on an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, including the distinction between identifying risk as a matter of fact and assessing its level. The central issue was whether the DBS decision involved a material mistake of fact or error of law.

1. Appeal jurisdiction. The appeal was dismissed. Section 4(2) of the Safeguarding Vulnerable Groups Act 2006 permits an appeal only on the grounds that the DBS made a mistake of law or in a finding of fact on which its decision was based. Section 4(3) excludes the question whether inclusion on a barred list is appropriate. The Upper Tribunal therefore had no jurisdiction to conduct a full merits review or to substitute its own view of appropriateness.
2. Alleged factual mistakes. The DBS’s findings concerning the younger child’s presence and care, and the advice given before the second incident, did not disclose material factual mistakes. The principal concern was the nature of the interaction between the Appellant and the older child. The disputed detail concerning the younger child did not materially contribute to the decision.
3. Weight and proportionality. The DBS had addressed the relevant circumstances, including the exceptional placement, the Appellant’s difficulties and the impact of barring. The proportionality assessment required consideration of continued risk, the impact on the Appellant and the structured questions identified in R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621. Appropriate weight had to be given to the DBS’s statutory judgment, as explained in ISA v SB and RCN [2012] EWCA Civ 977.
4. Risk assessment. The DBS had undertaken a risk assessment through its Structured Judgement Process. The Tribunal distinguished deciding whether a person poses a risk as a matter of fact from assessing the level of risk, which is a multifactorial and context-dependent evaluative exercise for the DBS: AB v DBS [2022] UKUT 134 (AAC).
5. As no material mistake of fact or error of law was established, section 4(5) required the Tribunal to confirm the DBS decision. The rule 14 anonymity and non-publication orders were continued.

• Upper Tribunal (Administrative Appeals Chamber): the appeal against the DBS decision was dismissed. The DBS decision to include the Appellant on the Children’s Barred List was confirmed.