MD v Disclosure and Barring Service

On an appeal under section 4(2)(b) of the Safeguarding Vulnerable Groups Act 2006, the issue is whether the Disclosure and Barring Service made a mistake in a finding of fact on which its barring decision was based. Facts in issue are those which must be proved, on the balance of probabilities, to establish relevant conduct. Other facts, including possible collusion or misunderstanding, are evidential matters which affect the weight of the evidence and need not themselves be proved to that standard.

The Upper Tribunal may hear relevant oral evidence, assess it with the documentary material, and make its own findings of primary fact. It must assess matters by reference to the circumstances at the date of the DBS decision, although later evidence may be considered if it relates back to that date.

MD v Disclosure and Barring Service was an appeal from a DBS decision of 10 January 2024 to include MD, a healthcare assistant at a residential mental-health unit for young people, in the children’s and adults’ barred lists. DBS found that MD had engaged in sexually inappropriate conduct towards one patient and non-consensual inappropriate touching of another.

Permission was limited to the contention that DBS had made a factual mistake by finding the allegations proved. The Upper Tribunal heard oral evidence from MD and considered the patients’ recorded accounts, contemporaneous professional assessments and the surrounding evidence. The central issue was whether the alleged conduct was a fact in issue which DBS had wrongly found proved, or whether the asserted weaknesses in the evidence were matters going only to evidential weight.

1. Appeal dismissed. The Tribunal found no mistake of law or fact in DBS’s findings and confirmed the barring decision.

2. Under section 4(2)(b) of the Safeguarding Vulnerable Groups Act 2006, a factual appeal concerns a finding of fact on which the decision was based. The facts in issue were whether MD had committed conduct which had to be proved, on the balance of probabilities, as relevant conduct under Schedule 3. Matters such as possible collusion, prior complaints, or misunderstanding were not themselves facts in issue. They were evidential circumstances which could make the allegations more or less probable and whose weight had to be assessed without requiring each to be proved to the civil standard.

3. The Tribunal was entitled to hear MD’s oral evidence, assess it with the documentary evidence before DBS, and make its own findings of primary fact. The assessment was directed to the circumstances at the date of the DBS decision, but evidence not before DBS could be considered where it related back to that date.

4. Having assessed the evidence afresh and as a whole, the Tribunal accepted the patients’ accounts. Their interview records contained the actual questions and answers; their accounts were measured and mutually supportive in identifying a pattern of inappropriate touching, visits to bedrooms and overly intimate conversations. Professional observers identified rational indicators of reliability, including consistency, distress and the absence of scripting. The Tribunal considered MD’s denials, previous good character, the absence of direct witnesses or CCTV, and the possibilities of collusion and misunderstanding. It found no indication or evidence that those possibilities had occurred. None of the individual evidential features was decisive, but the evidence cumulatively established the relevant conduct on the balance of probabilities.

• Upper Tribunal (Administrative Appeals Chamber): appeal from the DBS decision letter of 10 January 2024. The Tribunal dismissed the appeal and confirmed DBS’s decision to include MD in both barred lists.
• Disclosure and Barring Service: on 10 January 2024, DBS included MD in the children’s and adults’ barred lists under Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.