NAC v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may hear oral evidence and assess it with the documentary evidence as a whole when deciding whether the Disclosure and Barring Service made a mistake of fact. The Tribunal must consider the circumstances at the date of the DBS decision, while permitting later evidence that relates back to that date. Where permission is granted on proportionality, the Tribunal must decide that issue for itself by applying the four-stage proportionality inquiry: importance of the objective, rational connection, less intrusive means, and final balancing. The protective objective of barring persons from regulated activity involving vulnerable adults may outweigh substantial effects on employment, earnings and private life.

The Disclosure and Barring Service included NAC in the adults’ barred list after finding that, while working as a care assistant, he had hit a resident on the head and hand. NAC appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006, alleging mistakes of fact and disproportionate interference with his rights.

Permission was granted on those grounds. The Upper Tribunal heard oral evidence from NAC and considered the evidence concerning the incident, including the account of his co-worker. The central issues were whether DBS had made a mistake of fact or law and whether its decision was proportionate.

1. Appeal dismissed. DBS had made no mistake of law or fact, and its decision was confirmed.
2. The Tribunal was confined to the grounds for which permission had been granted. NAC had not applied to amend those grounds. This followed the approach identified in Disclosure and Barring Service v JHB [2023] EWCA Civ 982 at [97].
3. In assessing mistake of fact, the Tribunal was entitled to hear NAC’s evidence and assess it against the documentary evidence. It could evaluate the oral and written evidence as a whole and make its own findings of primary fact. The issue whether NAC had hit the resident was not a specialist risk assessment engaging DBS expertise. The Tribunal applied RI v Disclosure and Barring Service [2024] 1 WLR 4033 at [28]–[31], [50].
4. The relevant circumstances were those existing when DBS made its decision on 9 September 2024. Evidence obtained later could be considered where it related back to that date, applying SD v Disclosure v Barring Service [2024] UKUT 249 (AAC).
5. Having assessed the evidence as a whole, the Tribunal found the co-worker’s account reliable and NAC’s account unreliable. It therefore found no mistake in DBS’s factual finding.
6. For proportionality, the Tribunal applied the four criteria identified in KS v Disclosure and Barring Service [2025] UKUT 45 (AAC). Protecting vulnerable adults from harm was sufficiently important to justify interference with Article 8 rights; barring was rationally connected to that objective; no less intrusive measure had been identified; and the protective objective outweighed the effects on employment, earning capacity and private life. No evidence established an impact on mental well-being.

• Disclosure and Barring Service: On 9 September 2024, DBS included NAC in the adults’ barred list.
• Upper Tribunal (Administrative Appeals Chamber): The appeal was dismissed. DBS’s decision was confirmed.