PEO v Disclosure and Barring Service

An appeal against inclusion in a barred list lies only on the grounds of a mistake of law or a mistake in a finding of fact on which the decision was based. The Upper Tribunal may determine disputed facts itself. Where material factual mistakes undermine a barring decision, but the remaining facts leave open whether inclusion is appropriate, the matter should be remitted to the Disclosure and Barring Service for a fresh decision. The person must be removed from the barred list pending that decision.

PEO appealed against decisions of the Disclosure and Barring Service dated 14 May 2024 and 19 August 2024, made under Schedule 3 to the Safeguarding Vulnerable Groups Act 2006, placing him on the adults’ and children’s barred lists. The appeal concerned alleged medication administration, falsification of records, failure to check a service user, failure to prepare him for an outing, and failure to provide personal care. PEO challenged factual findings concerning medication administration and personal care, and argued that barring was disproportionate. The central issues were whether DBS had made material mistakes of fact and what disposal followed.

Appeal allowed and matter remitted. The Upper Tribunal found that DBS had made material mistakes in findings of fact on which its decisions were based.

1. Under section 4(2) of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal’s jurisdiction was confined to mistakes of law and mistakes in findings of fact on which the decision was based. Whether inclusion in a barred list was appropriate was not itself a question of law or fact under section 4(3).
2. DBS had mistakenly found that PEO administered medication to a service user while suspended from doing so. The evidence established that the agency worker administered the medication, with PEO’s guidance and assistance. DBS had also mistakenly found that PEO neglected a service user by failing to provide personal care. The Upper Tribunal accepted that providing such care was not ordinarily PEO’s role and that he had adequately cared for the service user that morning.
3. The mistakes were material. DBS had relied on all its factual findings, including in identifying a pattern of behaviour. The Upper Tribunal also made contextual findings concerning PEO’s failure to check on another service user overnight and his failure to prepare that person for an outing. Those matters remained undisputed, but did not make the mistaken findings immaterial.
4. Applying DBS v AB [2021] EWCA Civ 1575 at [72], the appropriate course was remittal unless it was clear that removal was the only lawful outcome. Since the remaining findings left a question whether inclusion remained appropriate, DBS had to make a new decision on both barred lists.
5. PEO was to be removed from both lists pending the new decision. The proportionality ground was not addressed because it would be reconsidered by DBS on the corrected factual basis.

• Upper Tribunal (Administrative Appeals Chamber): allowed PEO’s appeal against DBS’s decisions of 14 May 2024 and 19 August 2024. The matter was remitted to DBS for fresh decisions based on the Upper Tribunal’s factual findings. PEO was to be removed from both barred lists pending those decisions.