SB v The Disclosure and Barring Service

An appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006 succeeds where the Disclosure and Barring Service makes a material mistake of fact or law. The Upper Tribunal cannot substitute its own view of whether barring is appropriate, but may identify errors in the facts relied on, failures to consider relevant evidence, and inadequate reasoning.

A decision-maker must consider the totality of evidence relevant to insight, remorse, responsibility, risk and proportionality. It must also address material character evidence. Where an appeal succeeds, removal from the barred lists is appropriate only if it was the sole lawful decision available. Otherwise, the matter should be remitted for a fresh decision.

SB appealed against the DBS decision of 12 May 2023 retaining her on the Adults’ and Children’s Barred Lists following an incident involving a vulnerable adult on 10 August 2022. The DBS found that SB had failed to secure a commode chair, had moved the service user after a fall without obtaining medical assistance, and had failed accurately to report and record the incident.

SB alleged material errors of fact and law, including failure to identify relevant safeguarding procedures, failure to consider evidence of insight and remorse, failure to consider character references, disproportionate barring, irrational inclusion on the Children’s Barred List and inadequate reasons.

1. Disposition. The appeal was allowed in part. The DBS had made material mistakes of fact and law. The matter was remitted for a new decision. SB was to remain on both barred lists pending that decision.
2. The DBS had no proper evidential basis for finding that SB was obliged to report the fall to the service user’s daughter or to a third care worker. The terms of the employer’s incident-reporting procedure were not before the DBS or the Tribunal. SB’s account to her manager was an accurate report of the incident. The contrary finding was therefore a material mistake of fact.
3. The DBS also failed to consider the totality of the evidence relevant to SB’s acceptance of responsibility, insight and remorse. It focused on later additional representations without weighing them against earlier statements, including contemporaneous admissions, apologies and expressions of concern for the service user. This was an error of law.
4. The DBS failed adequately to address the character references. Merely listing them did not show that the evidence had been weighed, particularly evidence from a senior colleague describing SB as an excellent care worker. This was relevant to whether the incident was an isolated failure or demonstrated a continuing risk.
5. The remaining findings were upheld. The evidence supported the requirements to secure the chair, avoid moving a person after a fall involving a head impact, and obtain medical assistance. The alleged distinction between non-verbal and non-communicative was immaterial to those requirements.
6. The proportionality challenge failed. Applying the Article 8 balancing exercise, and giving appropriate weight to the DBS’s statutory role, the importance of preventing future harm outweighed the interference with SB’s ability to work in regulated activity. Inclusion on the Children’s Barred List was also rationally open to the DBS because the relevant conduct could be transferable to work with children.
7. Removal was not ordered because the surviving findings meant that removal was not the only lawful decision available to the DBS.

• Upper Tribunal (Administrative Appeals Chamber): the appeal against the DBS decision of 12 May 2023 was allowed in part and remitted for a new decision. SB was directed to remain on both barred lists pending the fresh decision.