EAO v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may intervene only for a material mistake of law or fact. Whether inclusion on a barred list is appropriate is not itself a question of law or fact. The Tribunal must nevertheless assess proportionality for itself, rather than merely reviewing the Disclosure and Barring Service’s assessment for rationality. It must distinguish factual findings, which it may review, from evaluative judgments about the relevance and weight of those facts. Financial abuse of vulnerable service users and conduct risking emotional abuse may together justify barring.

The Disclosure and Barring Service placed EAO on the Adults’ Barred List under the relevant-conduct gateway in Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. It found that she had used vulnerable adult service users’ Oyster cards for her own travel and had pretended to spit at a service user. EAO accepted the underlying conduct but challenged the proportionality of the barring decision.

Permission to appeal was granted after an extension of time, on the sole ground that the decision might be disproportionate. The Upper Tribunal had to determine whether the DBS had made a material mistake of law or fact and whether inclusion on the Adults’ Barred List was proportionate.

1. The appeal was dismissed. The DBS decision was confirmed because it involved no material mistake of law or fact.
2. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may intervene only on a mistake of law or fact. Whether inclusion is appropriate is expressly not a question of law or fact. The Tribunal may review factual findings and assess proportionality, but must not substitute its own evaluation of the relevance or weight of facts for the DBS’s safeguarding assessment.
3. Following KS v Disclosure and Barring Service [2025] UKUT 45 (AAC), proportionality must be assessed by the Upper Tribunal for itself. This is not a Wednesbury or rationality review. The appeal concerns the substantive decision as a whole, rather than an isolated paragraph of the decision letter. The Final Decision Letter and Barring Decision Summary may together contain the decision and adequate reasons.
4. Using service users’ Oyster cards for personal travel amounted to financial abuse. The pretended spitting risked emotional abuse. Although the financial value was presumed to be low, the conduct was serious because it deprived service users and undermined trust. EAO’s later attempt to minimise the wrongdoing indicated insufficient insight and increased the risk of repetition.
5. The Tribunal considered that barring would have been disproportionate if the pretended spitting had been the only abuse. The decision was nevertheless proportionate because it rested on both that conduct and the financial abuse, notwithstanding its grave impact on EAO’s livelihood.

• Upper Tribunal (Administrative Appeals Chamber): The appeal against the DBS decision dated 29 September 2023 was dismissed. The barring decision was confirmed.