MC v The Disclosure and Barring Service

A person may engage in relevant conduct for the purposes of barring even where the conduct did not occur during regulated activity. The statutory question is whether the conduct, if repeated against or in relation to a child or vulnerable adult, would endanger or be likely to endanger that person.

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may determine whether a material factual finding underpinning a barring decision was mistaken. It may assess the evidence for itself and need not defer to the DBS on ordinary factual findings, while giving appropriate weight to its specialist risk judgments. A barring decision based on an allegation not established on the balance of probabilities involves a material mistake of fact.

The DBS placed the appellant, a regulated healthcare professional, on the children’s and vulnerable adults’ barred lists after finding that he had sexually assaulted a friend following heavy drinking in a hotel room.

The appellant appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006. He contended that the DBS had made a mistake of fact in finding the allegation proved. He also argued unsuccessfully that conduct outside regulated activity could not amount to relevant conduct.

The Upper Tribunal considered the complainant’s changing accounts, the absence of forensic or injury evidence, the evidence of the friend present in the room, and the appellant’s message and written explanation. The central issue was whether the allegation had been proved on the balance of probabilities and therefore could sustain the barring decision.

1. Appeal allowed. The DBS’s finding that the appellant had committed the alleged sexual assault was a material mistake of fact. The Tribunal directed the DBS to remove him from both barred lists.

2. Relevant conduct under Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 need not occur in the course of regulated activity. It is sufficient that, if repeated against or in relation to a child or vulnerable adult, the conduct would endanger or be likely to endanger that person. The regulated-activity test was separately met and was not disputed.

3. Following PF v Disclosure and Barring Service [2020] UKUT 256 (AAC), the Tribunal could consider the factual evidence for itself when deciding whether the DBS had made a material mistake of fact. It would give weight to DBS expertise on public risk, but ordinary fact-finding on the available evidence did not engage that expertise.

4. The Tribunal drew no adverse inference from the appellant’s decision not to give oral evidence. Neither side’s witnesses gave oral evidence or were available for cross-examination, and the DBS did not invite such an inference.

5. The evidence did not establish the allegation on the balance of probabilities. The complainant had expressed uncertainty about what occurred; her accounts contained material differences; there was no forensic evidence or evidence of injury; and W1 neither saw nor heard the alleged assault despite being in the room. The appellant’s message was an apology and offer of co-operation, not an admission. On the evidence available to both the DBS and the Tribunal, there was no clear evidence of what occurred.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal and directed removal from both barred lists: [2025] UKUT 12 (AAC).
• Disclosure and Barring Service: decided to include the appellant on the Vulnerable Adults’ List and the Children’s Barred List in February 2022.