LM v Disclosure and Barring Service

An appeal against inclusion in a barred list may succeed where the DBS decision was based on a material mistake of fact. The Upper Tribunal may consider all evidence before it, including evidence unavailable to the DBS, hear oral evidence, make its own factual findings and draw inferences. It does not defer to the DBS on ordinary factual questions, although appropriate weight may be given to specialist risk assessments engaging the DBS’s expertise. A finding that conduct occurred must be assessed on the balance of probabilities. Where the evidence is materially inconsistent and has been affected by delay, parental or other discussion, and the available evidence does not establish the alleged conduct, the appeal may be allowed and removal from the barred list directed.

The appellant, a supply teacher, appealed against the DBS decision dated 3 May 2023 to include her in the Children’s barred list. The DBS found that she had grabbed a child’s arm and slapped the child’s cheek. The appellant denied assaulting the child.

Permission to appeal was granted on the ground of mistake of fact. The Upper Tribunal considered evidence from the appellant, the children and other witnesses, including further evidence obtained after an adjournment. The central issue was whether the DBS decision was based on a material mistaken finding that the alleged assault had occurred.

1. The appeal was allowed. The DBS had made a mistake of fact in finding the allegation proved, and the appellant was directed to be removed from the Children’s barred list.

2. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal’s jurisdiction was confined to mistakes of law or fact on which the DBS decision was based. Whether inclusion was appropriate was excluded as a question of law or fact by section 4(3). The parties agreed that the appeal concerned mistake of fact.

3. The Tribunal applied the guidance in PF v DBS [2020] UKUT 256 (AAC), as affirmed in Kihembo v DBS [2023] EWCA Civ 1547. A factual mistake must be material and must have made a material contribution to the overall decision. The Tribunal could consider all the evidence before it, including evidence not before the DBS, hear oral evidence, make findings directly from the evidence and draw inferences. It was not required to defer to the DBS on factual matters, although it would give appropriate weight to DBS expertise on specialist risk assessment.

4. The statutory framework required the alleged conduct to amount to relevant conduct undertaken in regulated activity. The appellant had been engaged in regulated activity, but the question whether the alleged assault occurred remained a factual question for the Tribunal.

5. The evidence did not establish the assault on the balance of probabilities. The Tribunal attached significance to the child’s initial account that she had been tapped, the deletion of the corresponding text message, parental and other discussion of the allegation, delay in obtaining statements, and substantial inconsistencies between the children’s accounts. The evidence that a teacher had witnessed the incident and that the child had reported an injury at the school was also unsupported.

6. The appellant gave consistent and credible evidence, supported by her long and unblemished teaching record. Evidence produced after the adjournment had not been before the DBS and materially affected the factual assessment. The appeal was therefore allowed and removal from the Children’s barred list directed.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal against the DBS decision dated 3 May 2023 and directed removal from the Children’s barred list.
• Disclosure and Barring Service: decided to include the appellant in the Children’s barred list.