SLS v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal must decide for itself whether DBS made a mistake of law or in a finding of fact on which its barring decision was based. It may hear oral evidence and assess it with the documentary evidence as a whole, including later evidence that can be related to the date of DBS’s decision. The Tribunal does not review the propriety of the referral to DBS. Proportionality is assessed independently. A less intrusive measure need not be one DBS has power to provide, but it must be supported by evidence and capable of protecting vulnerable people adequately. Conduct which overrides service users’ lawful choices, including unwise choices, may justify barring where the restriction is the minimum necessary to protect them.

DBS included SLS in both the children’s and adults’ barred lists after finding that, while working as a support worker, she had shouted at service users, used abusive language and restricted their choices. She appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006, with permission limited to whether DBS had made mistakes of fact and whether inclusion was proportionate.

The Upper Tribunal heard SLS’s evidence, considered the evidence from service users and staff, and examined the suggested alternatives of training or moving her to another property. The central issues were whether DBS’s findings were mistaken and whether the barring decision was a proportionate interference with her Article 8 rights.

1. Appeal dismissed; DBS’s decision confirmed. The appeal was limited to the permitted grounds. Section 4 did not permit the Tribunal to review whether EC had properly referred SLS to DBS.
2. The Tribunal was entitled to hear SLS’s oral evidence and assess it together with the documentary evidence, making its own findings of primary fact. It considered circumstances existing when DBS made its decision, while taking account of later evidence capable of being related back to that date.
3. The evidence from staff and service users was mutually consistent. The Tribunal rejected the alleged conspiracy and the suggestion that the service users had been prompted. Applying section 1 of the Mental Capacity Act 2005, the service users were assumed to have capacity. Capacity included the ability to make unwise decisions. SLS had crossed the legal line between encouraging sensible choices and controlling them, including choices about food, drink, activities and access to parts of the home. DBS therefore had made no mistake of fact.
4. Proportionality was assessed for itself. Applying the four-stage approach in Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700, the barring scheme pursued a sufficiently important objective, was rationally connected to that objective, and no evidenced less intrusive measure was available. An alternative need not be supplied by DBS, but the suggested training was unsupported by the evidence and a possible move had not been shown to be under consideration.
5. The employment restriction was serious, but the potential harm to children and vulnerable adults included the undermining of their dignity, feelings and legal autonomy. Inclusion in both barred lists was the minimum necessary protection. No mistake of law or fact having been established, the statutory duty was to confirm DBS’s decision.

• Upper Tribunal (Administrative Appeals Chamber): Appeal against DBS’s decision, limited to alleged mistakes of fact and proportionality. The appeal was dismissed and DBS’s decision confirmed.
• Disclosure and Barring Service: By decision dated 30 April 2024, SLS was included in the children’s and adults’ barred lists.