MC v Disclosure & Barring Service

On an appeal against barring, the Upper Tribunal may determine factual mistakes using all evidence before it, including oral evidence, but must distinguish primary fact-finding from evaluative judgments entrusted to the DBS. It should give appropriate weight to the DBS’s expertise in assessing future safeguarding risk.

Relevant conduct includes conduct which harms, or is likely to harm, a vulnerable adult. A barring decision may be proportionate where serious conduct, insufficient insight and a rational risk of repetition justify exclusion from regulated activity. Inclusion on the Children’s Barred List additionally requires evidence giving the DBS reason to believe that the person has been, is, or might in future be engaged in regulated activity with children. A speculative or fanciful possibility is insufficient.

MC appealed against two independent DBS decisions arising from the same incident on 8 November 2021 while he worked as a care support worker for a vulnerable adult, W. Decision 1, dated 13 July 2022, included him on both the Adults’ Barred List and the Children’s Barred List. Decision 2, dated 3 March 2023, included him on the Adults’ Barred List only.

The appeals were joined after permission was granted. MC challenged findings concerning the incident, relevant conduct, future risk, proportionality and procedural fairness. A further issue arose concerning whether there was evidence that he had been or might in future be engaged in regulated activity with children.

1. Adults’ Barred List. The appeals against inclusion on the Adults’ Barred List were dismissed. The Tribunal found, on the balance of probabilities, that MC had prevented W from legitimately using the kitchen and had threatened him with violence. The CCTV footage, W’s reactions and his call to the police established emotional harm. MC’s subsequent misleading account to his manager was an aggravating factor.
2. The Tribunal could make its own factual findings on all the evidence, including evidence unavailable to the DBS. It could not substitute its own evaluative assessment of risk or appropriateness merely because it might have reached a different view. It would intervene in the DBS’s risk assessment only where it was based on mistaken primary facts or was irrational.
3. The DBS applied the statutory tests for discretionary barring. It was entitled to regard the incident as demonstrating serious attitudinal concerns, insufficient insight and a significant risk of future harm. The DBS had adequately considered the representations, mitigating material and police outcome, and gave sufficient reasons when its decision letter and rationale document were read together.
4. The Tribunal conducted its own proportionality assessment. Safeguarding vulnerable adults was a sufficiently important objective, barring was rationally connected to it, no less intrusive sufficient measure was available, and a fair balance was struck under the approach in R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621, Huang v Secretary of State for the Home Department [2007] 2 AC 167 and Bank Mellat [2013] UKSC 39.
5. Children’s Barred List. The appeal against Decision 1 was allowed in part. The DBS had no rational evidential basis for believing that MC had previously engaged, or might in future engage, in regulated activity with children. His employment history involved adults, and a default application for checks relating to children by an agency did not establish the statutory condition. The possibility of future work with children was speculative. The Tribunal directed removal from the Children’s Barred List.

• Upper Tribunal (Administrative Appeals Chamber): Appeal against the 13 July 2022 decision allowed in part. Inclusion on the Adults’ Barred List confirmed; removal from the Children’s Barred List directed.
• Upper Tribunal (Administrative Appeals Chamber): Appeal against the 3 March 2023 decision dismissed. Inclusion on the Adults’ Barred List confirmed.