RO v Disclosure & Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may not substitute its own safeguarding risk assessment for that of DBS. It may, however, find an error of law where DBS’ fact-finding analysis omits relevant evidence or reaches an irrational finding.

DBS must assess whether a worker failed to follow actual, communicated safeguarding requirements. A failure to obtain care plans cannot be treated as relevant conduct where the employer, rather than the worker, bore primary responsibility for providing them and normal procedures were not followed. Findings based on alleged open-door, hourly-checking and visual-check requirements also fail where the evidence does not establish that those requirements were communicated or applicable.

RO v Disclosure & Barring Service was a direct appeal from DBS decisions of 31 December 2022 to place the appellant on the children’s and adults’ barred lists. DBS relied on an incident in which the appellant was asleep while a waking night worker, and incidents at a children’s home concerning care plans, safeguarding and monitoring practices, record-keeping, and an earlier unrecorded incident between two young people.

The appellant gave oral evidence and challenged the evidential basis of DBS’ findings. The central issue was whether DBS had made material mistakes of fact or law in the findings underpinning its barring decisions, and, if so, the proper disposal under section 4 of the Safeguarding Vulnerable Groups Act 2006.

1. Appeal allowed and remitted. DBS’ barring decisions contained errors of law in their analysis of relevant evidence. The panel remitted the matter to DBS for a new decision rather than directing removal from the barred lists.

2. The finding that the appellant was asleep on duty at Home 1 was neither mistaken nor irrational. The panel rejected his oral denial as not credible. The undisputed failure to hear the doorbell, evidence that another worker and resident found him apparently asleep, and inconsistencies in his account supported DBS’ finding.

3. DBS erred in treating the appellant as having failed to take proper steps to obtain the young people’s care plans. The evidence did not show that Home 2 had followed its normal procedure of providing bank staff with care plans and obtaining signed confirmation that they had been read. The primary responsibility for ensuring that bank staff were properly informed lay with Home 2’s management. The appellant’s failure to recognise and raise the procedural failure could not amount to relevant conduct.

4. DBS also failed to take account of material contradictions and omissions in the evidence about night-time cleaning duties and the alleged requirement to keep the middle-floor office door open. The panel found that the appellant had not been given either a specific instruction or a communicated general policy requiring the door to remain open all night.

5. There was no evidence that the appellant was under a standing requirement to carry out hourly visual checks, or to perform a visual check whenever a young person used the toilet. DBS therefore erred in treating either omission as a breach of safeguarding and monitoring procedures. The finding that the appellant failed to make records during the night shift remained open to DBS. His failure to record the earlier incident involving the two young people also remained undisturbed.

6. Under section 4(7)(a), DBS’ new decision must be based on the panel’s specified findings of fact, while DBS may make additional non-conflicting findings.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal from DBS’ barring decisions of 31 December 2022 and remitted the matter to DBS under section 4(6)(b) of the Safeguarding Vulnerable Groups Act 2006. The new decision must be based on the findings specified under section 4(7)(a).
• Disclosure and Barring Service: included the appellant in the children’s and adults’ barred lists.