AB 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 fact on which the decision was based. Whether inclusion in a barred list is appropriate is not itself a question of law or fact. An omitted fact is material only if its inclusion could have changed the decision. A grant of permission to appeal must be read with the reasons for granting it, so apparently general permission may be limited to the grounds identified in those reasons.

AB appealed against decisions of the Disclosure and Barring Service dated 12 June 2024 and 15 October 2024, placing her on the adults’ and children’s barred lists. The decisions followed findings about incidents during her employment at a nursing home and a charity supporting people with learning disabilities.

Permission to appeal was granted on alleged mistakes in DBS’s findings of fact. At the hearing, AB also raised arguments concerning proportionality. The central issues were whether DBS had made a material mistake of fact or law, and whether the appeal could extend beyond the factual grounds identified in the permission decision.

1. Outcome. The appeal was dismissed. DBS’s decisions to include AB in the adults’ and children’s barred lists were confirmed.
2. Scope of the appeal. Section 4(2) of the Safeguarding Vulnerable Groups Act 2006 permitted an appeal only on the grounds that DBS had made a mistake of law or fact. Section 4(3) expressly excluded the appropriateness of inclusion in a barred list from those questions.
3. Factual findings. The Tribunal reviewed the documentary and oral evidence concerning each challenged finding. It concluded that DBS had not materially erred. In particular, alleged omissions concerning motivation, staffing levels, the duration of a seizure, a generally good relationship with a service user, and the circumstances of a charity incident would not have changed the safeguarding assessment. The findings that AB refused care instructions, transported a vulnerable adult in a state of undress, failed to identify a seizure, deliberately used an incorrect name, behaved hostilely towards colleagues, and departed from established procedures were therefore upheld.
4. Permission and legal grounds. Applying Sarkar v Secretary of State for the Home Department [2014] EWCA Civ 195, the Tribunal held that the apparently unqualified grant of permission had to be read with the reasons for granting it. Those reasons confined the appeal to alleged mistakes of fact. The Tribunal therefore did not need to invite further submissions on the proposed legal grounds.
5. Proportionality. The Tribunal nevertheless stated that any proportionality argument would fail. Applying the fourth stage identified in Bank Mellat v HM Treasury (No 2) [2014] AC 700 at [74], the significant effect of barring AB was outweighed by the importance of safeguarding vulnerable adults and children, having regard to DBS’s coherent risk assessment and its expertise as the regulating body.

• Disclosure and Barring Service: Decisions dated 12 June 2024 and 15 October 2024 included AB in the adults’ and children’s barred lists.
• Upper Tribunal (Administrative Appeals Chamber): The appeal was dismissed and DBS’s decisions were confirmed.