DKS v The Disclosure and Barring Service

An appeal against inclusion in an adults’ barred list is confined to a material mistake of fact or law. The assessment whether inclusion is appropriate is generally for the Disclosure and Barring Service, subject only to a legally flawed, irrational or disproportionate decision.

The Disclosure and Barring Service need not defer its final decision pending related criminal proceedings. It has no interim barring power and may decide on the civil standard using the evidence before it. A procedural complaint requires material unfairness. An acquittal does not itself establish factual error in a civil safeguarding decision.

DKS, a senior carer, was included in the Adults’ Barred List after the Disclosure and Barring Service found on the balance of probabilities that he had verbally abused a resident who had soiled himself, briefly put bedding over the resident’s mouth, and had shouted at or spoken abruptly to other residents.

DKS appealed under section 4 of the SVGA. He denied the conduct and contended that the Disclosure and Barring Service had acted prematurely by deciding the matter before the conclusion of a criminal trial concerning the principal allegation. He was later acquitted at that trial.

The central issues were whether the safeguarding decision rested on a material mistake of fact and whether proceeding before the criminal trial amounted to a material error of law or procedural unfairness.

1. Appeal dismissed. The Upper Tribunal confirmed the decision to include DKS in the Adults’ Barred List. It found no material mistake of fact and no error of law.

2. Under section 4 of the SVGA, the Tribunal may correct factual or legal mistakes but may not substitute its assessment of whether barring is appropriate. That evaluative safeguarding assessment is for the Disclosure and Barring Service unless its decision-making is legally flawed, irrational or disproportionate.

3. The Disclosure and Barring Service was not required to await the criminal proceedings. Unlike some professional regulators, it had no power to make an interim order; it had to make the statutory binary decision whether to list DKS. If later circumstances or evidence showed that its decision was mistaken, it could review the decision and remove him from the list.

4. The Tribunal treated the untested evidence of DKS’s colleagues with caution. However, it found DKS an unreliable witness. He altered important parts of his account, including whether he and a colleague had attended the resident after an episode of incontinence and whether the room could accommodate the care described.

5. The contemporaneous care records did not disprove the allegations. They were evidence only of what had been recorded and were not necessarily complete or accurate. The Tribunal was not persuaded that the Disclosure and Barring Service’s factual findings were mistaken on the balance of probabilities. The jury’s acquittal established only that it had not been sure of guilt on the criminal standard.

6. Even if deciding before further criminal evidence became available had been procedurally irregular, it was immaterial. DKS advanced substantially the same case as in his written representations and did not introduce significant new evidence capable of affecting the outcome.

• Upper Tribunal (Administrative Appeals Chamber): Appeal dismissed and the Disclosure and Barring Service’s barring decision confirmed.

• Disclosure and Barring Service: On 28 September 2021, decided to include DKS in the Adults’ Barred List.