SZ v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal must determine for itself whether inclusion on a barred list is proportionate, while giving appropriate weight to the DBS’s decision as primary decision-maker. The statutory appeal remains confined to mistakes of law and material mistakes of fact; the Tribunal does not substitute its own risk assessment where the DBS decision is legally and factually sound.

A regulator’s conditions of practice order may, in principle, be relevant as a less intrusive measure. It did not suffice here because it was time-limited, confined to nursing, and did not address misconduct capable of occurring in other regulated activity. The serious and repeated misconduct, together with the continuing risk and absence of genuine insight, justified retention on both barred lists.

The appellant, a registered mental health nurse, appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006 against the DBS decision of 18 June 2024 to retain her name on the Children’s and Adults’ Barred Lists following a paragraph 18A review.

The DBS had relied substantially on factual findings made by the Nursing and Midwifery Council, which had imposed an 18-month conditions of practice order. The appellant argued that the NMC restrictions, her subsequent period of incident-free nursing, mitigating factors and later reflective material made the barring decision disproportionate. She also alleged mistakes of fact, including failure to recognise changed behaviour and genuine insight. The central issues were whether the DBS had made a material mistake of law or fact and whether retention on both lists was proportionate.

1. Appeal dismissed. The DBS decision of 18 June 2024 was confirmed. It contained no mistake of law and was not based on any material mistake of fact.
2. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may correct mistakes of law and material mistakes of fact, but the assessment of risk and appropriateness remains for the DBS unless its decision is legally or factually flawed. The Tribunal may consider further evidence relevant to the circumstances at the decision date.
3. The DBS was not bound by the NMC’s findings, but was entitled to take them into account and adopt them. The NMC findings disclosed serious, repeated and multifaceted misconduct involving highly vulnerable patients. The DBS had an evidential basis for finding that the appellant knew best practice but failed to follow it and presented a continuing risk.
4. The alleged factual errors were either disagreements with evaluative conclusions or complaints about the level of reasoning. The DBS was not required to address every point separately. Any omission concerning the appellant’s eight months of supervised, incident-free practice was not material, particularly given the seriousness of the misconduct, the continuing NMC impairment finding and the appellant’s continuing denials.
5. For proportionality, the Tribunal applied the four-stage test in Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700, conducting its own assessment while giving appropriate weight to the DBS. The legislative objective was sufficiently important and the barring decision was rationally connected to it.
6. The Tribunal did not decide whether another regulator’s order could in principle constitute a less intrusive measure. Even if that were permissible, the NMC order was inadequate here because it was time-limited, restricted only nursing work, and did not prevent regulated activity in other roles. Some misconduct was not specific to clinical practice.
7. The interference with the appellant’s rights was significant, but the protection of children and vulnerable adults outweighed the appellant’s interests. Retention on both lists was proportionate.

• Upper Tribunal (Administrative Appeals Chamber): appeal against the DBS decision of 18 June 2024 dismissed; the decision to retain the appellant on both barred lists confirmed.
• Disclosure and Barring Service: following a paragraph 18A review under Schedule 3 to the Safeguarding Vulnerable Groups Act 2006, decided on 18 June 2024 to retain the appellant on both lists.