JA v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may interfere only for a material mistake of fact or error of law. It does not determine anew whether inclusion on a barred list is appropriate.

A mistake in one finding of relevant conduct does not require intervention where another sound and sufficiently serious finding independently and inevitably supports the barring decision. The Tribunal must assess proportionality afresh, while giving appropriate weight to DBS’s expert evaluation. Barring may be a necessary and proportionate means of safeguarding children where no less intrusive measure adequately manages the identified risk.

The appellant challenged DBS’s decision of 9 June 2022 to include him on the Children’s Barred List under the Safeguarding Vulnerable Groups Act 2006.

DBS had found that he engaged in sexually motivated online communications with a person he believed to be a 15-year-old boy, and that he possessed a category C indecent image of a child. The appellant disputed both findings and alleged factual error, irrationality, unfair treatment of evidence and disproportionality.

Following an oral hearing at which the appellant gave evidence, the Upper Tribunal considered whether DBS had made a material mistake of fact or law on which its barring decision was based.

1. Appeal dismissed. The Tribunal confirmed DBS’s decision to include the appellant on the Children’s Barred List. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, appropriateness of inclusion is not itself appealable. The Tribunal could intervene only for a material factual mistake or legal error on which the decision was based.

2. The Tribunal assessed all the evidence, including the appellant’s oral evidence and credibility. It found his account unreliable on significant matters. The undisputed messages contained several indicators that the other person was under 18, while there was nothing positively indicating that he was an adult. The Tribunal therefore found, on the balance of probabilities, that the appellant believed the person to be 15.

3. That finding disclosed neither factual nor legal error. The sexually motivated communications constituted relevant conduct because, if repeated in relation to a child, they would cause harm or create a risk of harm.

4. DBS had, however, erred in treating the indecent image as relevant conduct. Although the image was found on the appellant’s phone, there was no evidence establishing that he knew it was there, obtained it, viewed it or shared it. DBS could not rationally maintain that finding as relevant conduct.

5. The error was not material. The first finding alone was sufficiently serious to justify barring, and the Tribunal was satisfied that DBS would inevitably have reached the same decision on that basis alone.

6. The decision was proportionate. Applying the four-stage proportionality assessment, the Tribunal held that safeguarding children was an important objective, barring was rationally connected to it, no less intrusive adequate safeguard was available, and a fair balance had been struck between the appellant’s private life and the community’s interests.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and confirmed DBS’s final decision of 9 June 2022 to include the appellant on the Children’s Barred List under the Safeguarding Vulnerable Groups Act 2006.