XYZ v Disclosure and Barring Service

Findings of fact made by a competent body under Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 are not binding on the DBS or the Upper Tribunal merely because they were made by that body. On a statutory appeal, the Upper Tribunal must decide for itself whether the barring decision was based on a mistake of fact, considering all the evidence and giving prior findings appropriate weight. Parliament has not prescribed significant or greater weight. The DBS safeguarding regime and teacher disciplinary regime pursue different public interests, so different conclusions on the same evidence are permissible. Neither collateral-attack abuse of process nor res judicata prevents independent findings where the bodies are not parties or privies and their statutory functions and criteria differ.

XYZ, a teacher, appealed against the decision of the Upper Tribunal (Administrative Appeals Chamber), reported at [2024] UKUT 85 (AAC), which dismissed his appeal against the DBS decision to include him in the children’s barred list.

The DBS found, on the balance of probabilities, that XYZ had formed an inappropriate relationship with a former pupil, including giving her lifts and kissing her. The Teachers’ Regulation Authority later found only that two lifts had occurred and rejected the remaining allegations. The central issues were whether the TRA’s findings bound the DBS or the Upper Tribunal, whether the Upper Tribunal could make inconsistent findings on substantially the same evidence, and whether res judicata or collateral-attack principles prevented it from doing so.

The appeal was dismissed.

1. Paragraph 16(3) of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 prevents a person from making representations to the DBS that findings of fact made by a competent body were wrongly made. It does not make those findings binding on the DBS or the Upper Tribunal. Parliament has not prescribed that such findings must receive significant or greater weight.
2. Under section 4 of the 2006 Act, the Upper Tribunal must determine for itself whether the barring decision was based on a mistake of fact or law. It may hear oral evidence, make its own findings and draw its own inferences. It must give appropriate weight to the DBS decision, the TRA findings and other evidence, but it is not required to defer to the TRA’s factual conclusions.
3. The TRA and DBS operate different statutory schemes. The TRA addresses professional conduct and fitness to teach. The DBS performs a protective, forward-looking function concerned with risk to children. The same facts may therefore lead to different conclusions under the two schemes.
4. The principle in Hunter v Chief Constable of the West Midlands [1982] AC 529 did not prevent the Upper Tribunal from making different findings. The DBS decision preceded the TRA decision, and the DBS was defending an appeal rather than misusing the tribunal’s procedure to mount a collateral attack. Such an exercise was not relitigation of the TRA decision and would undermine public confidence if the Upper Tribunal simply abdicated its statutory function.
5. Res judicata and cause of action estoppel did not apply. The parties, interests, statutory purposes and subject-matter were different. Although res judicata can apply in public law where a statutory scheme is designed finally to establish a legal right, neither scheme here had that character. The DBS was not a privy of the TRA, and the TRA could not determine whether the DBS was entitled to make a barring decision.
6. The restrictive approach discussed in DBS v JHB [2023] EWCA Civ 982 and DBS v RI [2024] EWCA Civ 95 concerned the Upper Tribunal’s review of a DBS decision on identical evidence. It did not prevent the Upper Tribunal in this case from considering additional oral evidence and evaluating the TRA’s reasoning and witness assessments for itself.

• Court of Appeal (Civil Division) — [2025] EWCA Civ 191 : appeal dismissed.
• Upper Tribunal (Administrative Appeals Chamber) — [2024] UKUT 85 (AAC) : dismissed XYZ’s appeal against the DBS barring decision.