VMAC v Disclosure and Barring Service

An appeal against inclusion in a barred list is confined to mistakes of law or findings of fact on which the barring decision was based. The Upper Tribunal may not substitute its own assessment of appropriateness unless the decision-making is irrational. A decision must be read fairly and as a whole, but clear misstatements of the evidence and inadequate engagement with material evidence may constitute errors of fact and law. An error is material where it might have made a difference to the outcome. Where such errors are established, the usual remedy is remission for a fresh decision unless removal is the only possible outcome.

The Disclosure and Barring Service included VMAC in the Adults’ Barred List under the Safeguarding Vulnerable Groups Act 2006, following a conditional caution and allegations of domestic abuse. VMAC appealed on the ground that the DBS had failed adequately to consider a risk assessment from his former employer, which recorded no evidence of aggression at work and described him as calm and effective with vulnerable adults. Permission to appeal was granted on limited grounds concerning that evidence and the DBS’s treatment of it. The central issues were whether the DBS had made a material mistake of fact or error of law, and what remedy followed.

1. Appeal allowed and matter remitted. The DBS decision of 5 September 2023 was set aside for a fresh decision. VMAC’s name was not removed pending that decision.
2. The appeal jurisdiction under section 4 of the Safeguarding Vulnerable Groups Act 2006 is limited. It permits intervention for a mistake of law or a finding of fact on which the barring decision was based. Appropriateness is not itself a question of law or fact, save to the limited extent that the decision-making may be challenged on proportionality or rationality grounds.
3. The DBS decision must be read fairly and as a whole. That does not permit a clear factual misstatement or inadequate treatment of material evidence to be cured by a less flawed reference elsewhere in the decision-making documents. The Tribunal applied the approach in XY v ISA [2012] 13 AACR and VW v ISA [2011] UKUT 435 (AAC).
4. The DBS failed adequately to take into account the former employer’s risk assessment. It largely reproduced part of the assessment, omitted the important comparison that VMAC was among the calmest members of the team, and failed to analyse how the evidence affected the assessment of future risk. That failure was an error of law.
5. The statement that there was no supporting evidence to mitigate future risk was a finding of fact. It was mistaken because the DBS had received the risk assessment and related evidence. It was also an error of law because no reasonable decision-maker could adopt that statement on the evidence.
6. The errors were material. Applying R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, the Tribunal could not say that the same decision was bound to have been reached without them. Under section 4(6) and (7), remission was appropriate because removal was not the only possible outcome.

• Upper Tribunal (Administrative Appeals Chamber) allowed the appeal against the DBS decision dated 5 September 2023 and remitted the matter for a new decision.