UV v Disclosure and Barring Service

An appeal against inclusion on a barred list succeeds only where a mistake of fact or law on which the decision was based is material. A factual error does not require intervention where a separate, untainted finding of relevant conduct independently makes the same barring decision inevitable.

The Upper Tribunal must assess the substance of the DBS decision as a whole. It may correct factual findings, but the DBS ordinarily retains responsibility for evaluative judgments about the level of risk and the appropriateness of barring, subject to legal challenge. The DBS may rely on sufficient information supplied by other public bodies and may revisit an earlier decision not to bar where further material becomes available.

The appellant, a former teacher, appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006 against the DBS decision of 11 March 2024 to include him on the Children’s Barred List.

The DBS relied principally on findings concerning sexually explicit electronic messages in which the appellant said that he had engaged in sexual activity with children, and alleged possession of indecent images of children on a missing USB stick. It had also considered a Teaching Regulation Agency professional conduct decision and the appellant’s caution for possession of a Class A drug.

The appellant alleged mistakes of fact and errors of law, including undue reliance on the TRA findings and inadequate consideration of his evidence. The central issue was whether any established error was material to the barring decision.

1. Appeal dismissed. The Tribunal confirmed the DBS decision. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, an appeal lies only for a mistake of fact or law on which the barring decision was based. The assessment of appropriateness, including the level of risk, remains for the DBS unless legally flawed, irrational or disproportionate.

2. The Tribunal was entitled to assess the appellant’s oral evidence and the documentary material afresh for the purpose of determining whether the DBS had made factual mistakes. It accepted the TRA panel’s analysis that the appellant had sent the messages and that at least some of them amounted to assertions that he had engaged in sexual activity with children. The Tribunal made no finding that he had in fact done so.

3. The Tribunal found that the DBS had made a factual mistake in finding that the appellant knowingly possessed indecent images of children. Although the missing USB stick contained such material, the evidence did not establish on the balance of probabilities that the appellant knowingly possessed it.

4. That mistake was not material. The untainted finding concerning the sexually explicit messages was sufficiently serious, by itself, to justify inclusion on the Children’s Barred List. The Tribunal was satisfied that the DBS would inevitably have barred the appellant on that basis alone.

5. The remaining alleged legal errors failed. The DBS had considered the appellant’s character material; it could rely on sufficient information from the TRA and police without becoming an investigative body; and it was entitled to treat the drug caution as background rather than relevant conduct. The DBS could also revisit its earlier decisions not to bar because further material had become available.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and confirmed the DBS decision to include the appellant on the Children’s Barred List: [2025] UKUT 113 (AAC).
• Disclosure and Barring Service: made the barring decision on 11 March 2024.