PC v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, a factual or legal error warrants intervention only if it is material to the barring decision. The Upper Tribunal must determine alleged factual mistakes for itself on all available evidence, but must assess the correctness of the DBS decision by reference to circumstances at the decision date.

Where proportionality under Article 8 is raised, the Tribunal decides that question for itself using the four-stage proportionality analysis. It must nevertheless give appropriate weight and respect to DBS as the primary safeguarding decision-maker. The scheme protects children and vulnerable adults rather than punishing culpable conduct. A bar may therefore be proportionate despite an individual’s mitigation, rehabilitation and serious employment consequences where no less intrusive measure then addressed the safeguarding risk.

PC v Disclosure and Barring Service was an appeal from DBS’s decision of 21 March 2023 to include the appellant, a former teaching assistant with Autism Spectrum Disorder, on the children’s barred list under paragraph 3 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.

DBS found that he had attempted to obtain, downloaded and viewed indecent images of children. Permission to appeal identified arguable factual errors, inadequate consideration of references and ASD, and disproportionality. After DBS’s decision, the appellant was convicted of possessing prohibited images of a child and became subject to a Sexual Harm Prevention Order.

The central issues were whether DBS had made any material mistake of fact or law, whether the later conviction affected the appeal, and whether barring was proportionate.

1. Appeal dismissed. The Tribunal confirmed DBS’s decision. Although it identified minor factual errors, there was no material mistake of fact or law within section 4 of the Safeguarding Vulnerable Groups Act 2006.

2. The later conviction did not alter the basis of this appeal. The appeal concerned the lawfulness of DBS’s decision of 21 March 2023 and had to be decided by reference to circumstances at that date. A later decision under paragraph 2 of Schedule 3 might require consideration of the conviction and the Sexual Harm Prevention Order, but that was not the issue before the Tribunal.

3. DBS was wrong to state that the appellant had attempted to pay for indecent images of children, had viewed the particular video twice, and had gone to great lengths to access the dark web. It could also have recognised the implications of ASD more fully. Those matters did not materially affect the safeguarding assessment. The appellant deliberately sought material depicting people who looked like children and the evidence supported DBS’s conclusion that he had a sexual interest in children in that sense.

4. The Tribunal rejected the contention that the appellant’s ASD or lack of culpability undermined the barring decision. The statutory scheme is protective rather than punitive. ASD assisted in understanding some factual matters, but did not materially reduce the risk relevant to whether inclusion on the list was appropriate.

5. Applying the four-stage proportionality analysis, the objective of protecting children and vulnerable adults was sufficiently important and barring was rationally connected to it. At the decision date, no alternative measure was available to DBS that could address the risk. The serious impact on the appellant’s career and private life was outweighed by the public interest in safeguarding children.

6. The Tribunal also made a Rule 14 anonymity order. The statutory confidentiality of barred-list information, the appellant’s Article 8 interests and the need not to deter statutory appeals outweighed the residual public interest in naming the appellant or his former schools.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed and DBS’s decision confirmed: [2025] UKUT 119 (AAC).
• Disclosure and Barring Service: decision letter of 21 March 2023 included the appellant on the children’s barred list under paragraph 3 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.