IEO v Disclosure and Barring Service

An appeal against inclusion in a barred list lies only on the ground that the Disclosure and Barring Service made a mistake of law or fact. The Upper Tribunal cannot review whether inclusion was appropriate as a free-standing question of law or fact. A material factual mistake is one capable of affecting the outcome. Where the evidence, particularly CCTV, supports the barring service’s findings, contextual matters that would not alter the conclusion are immaterial. In proportionality analysis, significant interference with the person’s ability to work may nevertheless be outweighed by the safeguarding objective, especially where the specialist regulator’s evaluative judgment is coherent and entitled to appropriate weight.

The Disclosure and Barring Service decided on 30 May 2024 to include IEO in both the children’s and adults’ barred lists under the Safeguarding Vulnerable Groups Act 2006. IEO appealed to the Upper Tribunal, contending principally that DBS had misunderstood CCTV evidence concerning her physical removal of an elderly care-home resident from another resident’s room and the resident’s subsequent fall.

Permission was granted to argue that DBS might have made a material factual mistake. At the substantive hearing IEO also advanced arguments concerning DBS’s predictive assessment, evidential approach, procedural fairness and proportionality. The central issue was whether DBS had made a mistake of law or fact within the statutory appeal jurisdiction.

1. Appeal dismissed. DBS’s decision to include IEO in both barred lists was confirmed.
2. Under section 4(2) of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal’s jurisdiction was limited to mistakes of law or mistakes in findings of fact on which the decision was based. Section 4(3) excluded the appropriateness of inclusion itself as a question of law or fact.
3. The Tribunal found that the CCTV showed IEO physically guiding, pulling and propelling the vulnerable adult from the room, and that the force applied caused her to lose balance and fall. DBS had therefore made no mistake in its principal factual finding. The Tribunal accepted that the resident had behaved aggressively immediately beforehand, but concluded that she posed no physical threat requiring the conduct to be treated as self-defence.
4. Further findings about the resident’s aggression, the alleged request for help from another resident, or the immediate prelude to the incident would have made no difference to DBS’s conclusion that unreasonable force had been used. They were therefore immaterial to the statutory appeal.
5. The Tribunal treated DBS’s assessment of future safeguarding risk as an evaluative judgment based on its primary factual findings. It found no legal error in DBS’s treatment of the evidence, no procedural unfairness, and no decision that no reasonable barring service could have reached.
6. The Tribunal considered that the permission decision, read with its reasons, confined the appeal to the principal factual mistake. It relied on Sarkar v SSHD [2014] EWCA Civ 195 at [16]-[17]. It nevertheless considered the additional arguments and held that they would fail in any event.
7. Applying the fourth stage of the proportionality test identified in Bank Mellat v HM Treasury (No 2) [2014] AC 700 at [74], the significant impact on IEO’s employment prospects was outweighed by the safeguarding objective. Appropriate weight was due to DBS’s coherent judgment as the specialist safeguarding regulator.
8. The Tribunal also upheld DBS’s finding that, although helping the resident up was reflexive, IEO’s predominant motivation was to undo the consequences of the incident rather than to put the resident’s wellbeing first.

• Disclosure and Barring Service: On 30 May 2024 DBS decided to include IEO in the children’s and adults’ barred lists.
• Upper Tribunal (Administrative Appeals Chamber): The appeal was dismissed and DBS’s decision was confirmed.