AA v Disclosure and Barring Service

An appeal against a barring decision under the Safeguarding Vulnerable Groups Act 2006 is confined to mistakes of law or material findings of fact on which the decision was based. The Upper Tribunal may hear and assess fresh oral evidence and make its own findings. It must distinguish factual findings from evaluations of appropriateness, which are generally for the DBS unless irrational or disproportionate. A decision may involve an error of law where the decision-maker relies on insufficient evidence, fails to evaluate material representations, or does not resolve significant conflicts in evidence. Where a material mistake or error is established, the usual remedy is remission for a fresh decision, unless removal is the only possible outcome.

The DBS decided on 16 March 2023 to place AA on both barred lists under the relevant-conduct gateway in the Safeguarding Vulnerable Groups Act 2006. It found that AA had failed to obtain medical assistance for changes in JL’s behaviour, had delayed recording information which allegedly delayed treatment, and had advised LB to leave a service unstaffed.

AA appealed, alleging mistakes of fact, errors of law and disproportionality. Permission was initially refused, then granted following an oral hearing. The Upper Tribunal heard AA’s oral evidence and considered further documents obtained from his former employer. The central issues were whether the DBS had made material mistakes of fact or law on which the barring decision was based.

1. Appeal allowed. The DBS’s decision was based on material mistakes of fact and involved material errors of law. The matter was remitted to the DBS for a fresh decision. AA was to be removed from both barred lists pending that decision.
2. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal could intervene only for a mistake of law or a finding of fact on which the barring decision was based. Whether inclusion was appropriate was not itself a question of law or fact, subject to limited rationality or proportionality review.
3. The Tribunal was entitled to hear AA’s oral evidence and assess it against the documentary evidence before the DBS. It preferred that evidence where it had been tested and clarified at the hearing, particularly because the employment-investigation records were not verbatim and recorded untested answers such as “yes” or “ok”.
4. The DBS had made mistakes of fact in finding that AA had failed to seek medical assistance for JL’s changed behaviour and that he had delayed diagnosis and treatment of thrush. The evidence showed that medical assistance had been sought on 15 and 20 September 2021. The DBS had not established that JL had thrush on 11 September, or that thrush rather than ringworm caused the relevant behaviour.
5. The DBS had also erred in treating the evidence as showing that JA was unaware of JL’s rubbing behaviour. The questions put to JG and LST indicated that JA had been informed during the holiday. In relation to the second allegation, the Tribunal found that AA had not advised LB to leave the service unstaffed.
6. The DBS committed material errors of law by relying on insufficient evidence, failing adequately to address AA’s evidence that he was off sick when the ABCD form was uploaded, failing correctly to evaluate his account of informing the GP about JL’s behaviour, and failing to address material inconsistencies between LB’s and VW’s accounts.
7. It was unnecessary to decide the remaining grounds or the proportionality issue. Applying section 4(6) and (7), and the approach in DBS v AB, the appropriate order was remission because it had not been shown that removal was the only possible decision.

• Upper Tribunal: Permission to appeal was initially refused on the papers on 26 January 2024. Permission was granted after an oral hearing on 5 June 2024. The substantive appeal was allowed and remitted to the DBS.
• DBS: The DBS made the impugned barring decision on 16 March 2023, placing AA on the Adults’ and Children’s Barred Lists.