YN v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may overturn a barring decision where the DBS made a material mistake in a finding of fact on which the decision was based. A disputed allegation must be assessed on the balance of probabilities. Credible oral evidence, tested in cross-examination, may justify rejecting the DBS’s factual conclusion even where other witnesses honestly reported what they were told. The Tribunal must assess the whole evidential picture, including the absence of eyewitness evidence, inconsistencies or misunderstandings, and plausible alternative explanations. Whether inclusion in a barred list is appropriate is not itself a question of law or fact on the statutory appeal.

The appellant, a carer, appealed against the DBS decision communicated on 10 October 2023 to include her in both the adults’ and children’s barred lists. The DBS had found that she inserted her fingers into a service user’s rectum without consent while attempting to relieve constipation, and had provided false information.

The appellant denied the allegation. Permission to appeal was granted on the basis that oral evidence could establish material mistakes of fact in the DBS decision. The central issue was whether the alleged act was proved on the balance of probabilities and, if not, what order should follow.

1. Appeal allowed. The DBS had made a mistake of fact in finding the allegation proved. The appellant was directed to be removed from both the adults’ and children’s barred lists.
2. Section 4 of the Safeguarding Vulnerable Groups Act 2006 permits an appeal to the Upper Tribunal on a mistake of law or in a finding of fact on which the DBS decision was based. The appropriateness of inclusion in a barred list is excluded as an independent question of law or fact.
3. The Tribunal assessed whether the alleged conduct occurred on the balance of probabilities. It accepted the appellant’s oral evidence as credible and consistent. No witness had seen the alleged act.
4. The surrounding evidence did not establish the allegation. The other carer did not hear the service user protest, although the evidence indicated that events in the small house could be heard by those present. The service user did not report the alleged incident to the other carer shortly afterwards. The Tribunal accepted that pain from severe constipation and passing a hard stool provided a more likely explanation, and that the report could have resulted from misunderstanding of the earlier conversation about oil and the service user’s distress, pain and confusion.
5. The Tribunal did not doubt that the service user had reported what she believed had happened, or that the carers had honestly relayed that account. Those matters did not overcome the credible alternative account and the absence of direct evidence. The statutory conditions for continuing the barring decision therefore were not established on the factual basis relied upon by the DBS.

• Upper Tribunal (Administrative Appeals Chamber): the appeal from the DBS decision communicated on 10 October 2023 was allowed. The appellant was directed to be removed from both barred lists.