JH v Disclosure and Barring Service

An appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006 is confined to mistakes of law or material mistakes of fact. The Upper Tribunal may evaluate the evidence itself, but a different view of the facts is not enough. The statutory question whether barring is appropriate is not itself a question of law or fact, although disproportionate barring may constitute a legal error through incompatibility with Article 8. The Tribunal must give due weight to the Disclosure and Barring Service as primary decision-maker, while determining proportionality for itself. Deliberately inflicting physical pain on a child, coupled with lack of insight, remorse, empathy or coping skills, may justify inclusion on the children’s barred list.

The appellant, an early years practitioner, appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006 against the Disclosure and Barring Service’s decision to include her on the children’s barred list. The decision followed an incident in which she was found to have pulled a four-year-old child’s hair after the child pulled hers. She alleged mistakes of fact and law, including reliance on anonymous and hearsay evidence, failure to obtain CCTV, procedural unfairness and disproportionate interference with her Article 8 rights.

The Upper Tribunal considered whether the DBS had made a material mistake of fact or an error of law, including whether the barring decision was disproportionate.

Appeal dismissed. The DBS decision was confirmed and the appellant remained on the children’s barred list.

1. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Tribunal’s jurisdiction was limited to mistakes of law and material mistakes of fact. It had to confirm the DBS decision if no such mistake was established.
2. The Tribunal was entitled to evaluate the evidence itself. A finding was not wrong merely because the Tribunal might have reached a different conclusion, but the Tribunal was not confined to asking whether the DBS’s findings were reasonable. The evidence showed that the appellant had pulled the child’s hair hard enough to cause pain. The witness evidence was sufficient, coherent and credible. The appellant’s inconsistent accounts were unreliable.
3. The evidence also supported findings that the appellant lacked coping skills and empathy. Alleged misconduct by the pre-school and the fairness of the dismissal were not material to the statutory appeal. The anonymisation of witness statements caused no material unfairness because the appellant could identify the witnesses and was not materially disadvantaged.
4. A disproportionate barring decision could amount to a mistake of law because it would unlawfully interfere with Article 8 rights. Applying the approach in ISA v SB [2012] EWCA Civ 977 and DBS v Harvey [2013] EWCA Civ 180, the Tribunal gave due weight to the DBS’s view but determined proportionality itself.
5. The conduct was at the lower end of seriousness but involved deliberate infliction of physical pain and emotional harm. The appellant’s continuing denial, lack of insight and lack of remorse meant that the risk to children justified barring. No less restrictive measure could reasonably achieve the legitimate aim of protecting children.

Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and confirmed the DBS decision dated 5 January 2024.