AE v Disclosure and Barring Service

An appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006 is confined to mistakes of law or material mistakes of fact on which the barring decision was based. Whether inclusion on a barred list is appropriate is not itself a question of law or fact, although proportionality and rationality may be reviewed.

The Upper Tribunal may hear evidence and make its own assessment, while considering the substantive decision as a whole. An adult’s open-mouth kiss on a child’s lips was capable of being intrinsically sexual in nature. The statutory relevant-conduct test for vulnerable adults may be satisfied by conduct which, if repeated against a vulnerable adult, would be likely to endanger that person. The appeal was dismissed.

The Disclosure and Barring Service decided on 8 April 2024 to place the appellant on both the Children’s Barred List and the Adults’ Barred List under the Safeguarding Vulnerable Groups Act 2006. The decision found, on the balance of probabilities, that he had kissed his former partner’s foster daughter, aged 11 or 12, on multiple occasions and that a kiss at a birthday party in June 2022 was sexual in nature.

The appellant appealed under section 4(2) of the Act. He alleged a mistake of fact concerning the June 2022 kiss and an error of law concerning proportionality of inclusion on the Adults’ Barred List. The central issues were whether the DBS had made a material factual or legal error and whether the barring decision could properly be challenged on proportionality grounds.

1. Disposition. The appeal was dismissed. The DBS decision dated 8 April 2024 was confirmed. It involved no material mistake of fact and no mistake of law.
2. Scope of appeal. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal could review mistakes of law and findings of fact on which the decision was based. Whether inclusion was appropriate was not a question of law or fact under section 4(3), although rationality and proportionality remained reviewable. The Tribunal had to examine the substance of the decision as a whole, including the final decision letter and the Barring Decision Summary.
3. Factual mistake. The Tribunal heard the appellant’s sworn evidence and made its own assessment. It accepted that the appellant had kissed the child on multiple occasions. It also concluded that an open-mouth kiss on the lips was, by its nature, a sexual act. The DBS therefore made no material mistake in finding that the June 2022 kiss was sexual in nature. The Tribunal did not itself find that the appellant had a sexual interest in children, but that difference did not undermine the DBS decision.
4. Adults’ Barred List. The relevant-conduct test was satisfied because the conduct, if repeated against or in relation to a vulnerable adult, would be likely to endanger that adult. The statutory test did not require an actual prior complaint involving a vulnerable adult.
5. Proportionality. Applying the four-stage analysis in Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700, the barring scheme pursued an important objective and barring was rationally connected to it. The statutory scheme provided no less intrusive conditional alternative. The public interest in protecting children and vulnerable adults outweighed the appellant’s employment and career disadvantages.

• Disclosure and Barring Service: On 8 April 2024, the DBS decided to include the appellant on the Children’s Barred List and Adults’ Barred List.
• Upper Tribunal (Administrative Appeals Chamber): The appeal was dismissed and the DBS decision confirmed. [2025] UKUT 167 (AAC)