FR v Disclosure and Barring Service

An appeal against inclusion on a barred list succeeds where the Disclosure and Barring Service decision was based, at least in part, on material mistakes of fact. The Upper Tribunal may assess the evidence itself, including oral evidence, but it may not substitute its assessment of the appropriateness or weight of risk unless the DBS decision is legally flawed.

The appeal concerns the decision as a whole. The decision letter and the DBS’s internal decision summary may therefore both be relevant. Where a material factual or legal error is found, the usual course is remission for a fresh DBS decision. Removal from the lists is appropriate only where no other decision is possible on the facts.

The DBS included FR, a live-in carer, on the Adults’ and Children’s Barred Lists following incidents involving a vulnerable adult’s fall and the failure to administer another service user’s morning medication. Its decision of 20 July 2021 made five factual findings.

FR appealed under Safeguarding Vulnerable Groups Act 2006, contending that the findings involved factual and legal errors and that barring was disproportionate. The Upper Tribunal heard sworn oral evidence from FR and assessed the documentary evidence.

The central issue was whether material mistakes of fact underlay any findings on which the DBS based its barring decision.

1. Appeal allowed. The DBS decision was based in part on material mistakes of fact. The Tribunal therefore quashed it and remitted the matter to the DBS for a fresh decision.

2. The Tribunal found that Finding 1 was materially wrong. The evidence that FR was asleep on duty was uncorroborated hearsay, could not be properly tested, and may have resulted from her African wrap being mistaken for nightwear. FR was in the garden hanging washing when the service user left the house and fell. That did not absolve FR of fault for insufficient supervision, given the known risk that the service user might wander.

3. Finding 2 was also materially wrong. The neighbours had assumed control of the immediate response to the fall. FR provided assistance by bringing items to make the service user comfortable. The evidence did not establish that she failed to provide appropriate assistance or left the service user to attend to the washing. Her actions remained open to criticism, including her account of placing the service user in a recovery position after a fall.

4. Finding 3 was materially wrong. The evidence did not establish that FR deliberately withheld the service user’s identity or useful current medical information from the neighbour who assisted after the fall. FR had legitimate confidentiality concerns and the Tribunal accepted that current details were held on the care agency’s portal.

5. Findings 4 and 5, concerning missed medication and the deficient handover, involved no material factual or legal error. The Tribunal accepted the contemporaneous evidence that FR did not administer the medication within the required period, did not contact the on-call service, and did not notify the incoming carer. The mistaken reference to a written rather than oral warning was immaterial.

6. Under Safeguarding Vulnerable Groups Act 2006, the Tribunal could not substitute its own assessment of whether barring was appropriate. Remission, rather than removal, was required. FR was directed to remain on both barred lists pending the DBS’s new decision.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed under Safeguarding Vulnerable Groups Act 2006. The DBS decision dated 20 July 2021 was quashed and remitted for a new decision.
• Disclosure and Barring Service: decided on 20 July 2021 to include FR on the Adults’ and Children’s Barred Lists.