LJCB v Disclosure and Barring Service

For the purposes of paragraph 10(1)(b) of Schedule 3 to the Safeguarding of Vulnerable Groups Act 2006, conduct means a person’s actual behaviour or actions. It does not include personality traits, medical conditions, learning difficulties, professional opinions, family-court orders, or past abuse suffered by that person.

Where reliance is placed on conduct concerning a child, the conduct must be capable of repetition against or in relation to a vulnerable adult. A barring decision must also be proportionate to the statutory objective, which is protection in the sphere of regulated activity. Where the identified risk arises only in family or personal relationships excluded from regulated activity, barring lacks a rational connection to that objective.

The Disclosure and Barring Service included the appellant on the adults’ barred list after two of her children had been removed from her care in Family Court proceedings. It treated her history of abusive relationships, and concerns about her parenting, problem-solving and coping skills, as relevant conduct capable of endangering vulnerable adults if repeated.

The appellant appealed under section 4 of the Safeguarding of Vulnerable Groups Act 2006. Permission was granted on the grounds that the relevant-conduct finding might be irrational and that barring might be disproportionate. The central questions were whether the evidence established conduct capable of repetition against a vulnerable adult and whether barring was a proportionate interference with the appellant’s rights.

1. Appeal allowed. The DBS had made a material error of law. The only lawful outcome on the evidence was that the appellant should not be included on the adults’ barred list. The Tribunal directed her removal under section 4(6)(a) of the Safeguarding of Vulnerable Groups Act 2006.

2. Paragraph 10(1)(b) of Schedule 3 requires actual conduct: behaviour or actions. It does not permit DBS to treat as conduct a person’s personality traits, learning difficulties, medical conditions, the concerns or opinions of professionals, family-court orders, or abuse previously inflicted on that person. Such matters may bear on risk and appropriateness, but they cannot replace the statutory gateway of relevant conduct.

3. The removal of a person’s child by the Family Court is not itself conduct. DBS must obtain sufficient evidence and identify the particular conduct that may be relevant to risk in regulated activity. On the limited evidence, the appellant’s only identified conduct was her earlier decision to remain with an abusive partner rather than care for her baby alone.

4. That conduct was not capable of repetition against or in relation to a vulnerable adult. The risk arose from the appellant’s family relationship, shared home and responsibility for her own baby. A vulnerable adult in regulated activity would not occupy that position. DBS therefore irrationally treated the conduct as relevant conduct under paragraph 10(1)(b).

5. Alternatively, barring was disproportionate. The statutory scheme protects vulnerable adults in regulated activity, not in every context. By section 58, activity in family and personal relationships is excluded. Since the identified risk could arise only from an abusive partner in a family or personal setting, there was no rational connection between barring and the scheme’s objective. Other safeguarding frameworks were less intrusive, and DBS had wrongly expected the appellant to disprove risk rather than establishing it.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal and directed removal from the adults’ barred list under section 4(6)(a) of the Safeguarding of Vulnerable Groups Act 2006.
• Disclosure and Barring Service: on 15 September 2023 included the appellant on the adults’ barred list under paragraph 9 of Schedule 3 to the Safeguarding of Vulnerable Groups Act 2006.