JO v The Disclosure and Barring Service

An appeal against a DBS barring decision may succeed where DBS makes a material mistake of law or fact. The Upper Tribunal may assess all oral and written evidence when deciding whether a factual finding was mistaken, but may not substitute its own view of the appropriateness of inclusion on a barred list.

A failure to take account of material evidence accepted by the original employer can amount to an error of law. Where an error is established, the Tribunal must either direct removal from the lists or remit the matter for a fresh DBS decision under Safeguarding Vulnerable Groups Act 2006. On remittal, it may direct that the person remains listed pending that decision.

JO appealed against the DBS decision of 17 May 2024 to include him in the Adults’ and Children’s Barred Lists under Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. The DBS relied on alleged mistreatment of an elderly care-home resident during personal care and an allegation that JO had slept while on a waking night shift.

The Tribunal heard JO’s oral evidence and considered a former colleague’s statement. JO denied both incidents and alleged unfair treatment. The central issue was whether DBS had made a mistake of fact in deciding to place him on the lists.

1. Appeal allowed and remitted. The Tribunal upheld DBS’s finding that JO had caused physical and emotional harm to the vulnerable resident. JO’s continued denials, unsupported allegation of workplace bias, and character evidence did not show that the care home’s findings were mistaken. The reporting colleague’s evidence was credible and no motive for fabrication was established.

2. DBS nevertheless made an error in respect of the sleeping allegation. It noted that the employer had given JO the benefit of the doubt, but failed to take account of the material evidence which the employer had accepted: his completion of online training at the relevant time, his unusually high volume of ironing, and the fact that his work had otherwise been completed well. Those omissions amounted to a mistake of law: [50].

3. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Tribunal could not decide for itself whether continued listing was appropriate. Having found an error, it had to direct removal or remit for a fresh DBS decision. Remittal was appropriate because the principal safeguarding incident remained established and the error concerned the lesser sleeping allegation.

4. The DBS was directed to make a fresh decision on the full factual material. JO was to remain on both lists pending that decision.

• Upper Tribunal (Administrative Appeals Chamber): appeal from the DBS final barring decision of 17 May 2024. The appeal was allowed and remitted for a new decision under Safeguarding Vulnerable Groups Act 2006.
• Disclosure and Barring Service: decided to include JO in the Adults’ and Children’s Barred Lists.