CP v Disclosure and Barring Service

An appeal against inclusion in a barred list lies only on the ground that the Disclosure and Barring Service made a mistake of law or fact on which its decision was based. The Upper Tribunal may determine disputed facts for that purpose, but it cannot review the separate question of whether inclusion is appropriate. Where material factual mistakes undermine the basis for barring, the usual course is remittal unless the only lawful decision is removal. Removal may therefore be directed where the Tribunal’s findings establish that the conduct relied on did not occur and no lawful basis for continued inclusion remains.

CP appealed against decisions of the Disclosure and Barring Service dated 22 February 2023 and 28 September 2023, which included her in the adults’ and children’s barred lists. The decisions were based on findings that, while working as a care worker, she had failed to attend vulnerable adults and had falsified records to suggest that care and medication had been provided.

The Upper Tribunal heard CP’s oral evidence and considered the documentary evidence. The central issue was whether DBS had made mistakes in findings of fact on which its decisions were based, and, if so, whether the case should be remitted or CP’s removal should be directed.

1. The appeal was allowed. DBS had made material mistakes in findings of fact on which its decisions were based, and CP’s removal from both barred lists was directed.
2. Under section 4(2) of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal’s jurisdiction was limited to mistakes of law and mistakes in findings of fact on which the decisions were based. Section 4(3) excluded the appropriateness of inclusion from questions of law or fact for this purpose.
3. On the evidence, CP had visited EP and DT and provided the required care, including medication. She then attended LS’s address but did not enter because her employer instructed her to attend the office. She did not attend HC and CC for the same reason.
4. The manual time sheets were inaccurate, but the evidence did not establish that CP had falsified them to conceal a plan never to provide care. The Tribunal found that she had fallen into the practice of completing them in advance and that they became inaccurate when her employer unexpectedly stopped the visits.
5. The findings that CP had falsified call logs, neglected vulnerable adults, or behaved deceptively, irresponsibly or neglectfully were therefore mistaken findings of fact. They materially undermined the decisions to include her in the barred lists.
6. Applying the approach in DBS v AB [2021] EWCA Civ 1575, the matter would ordinarily be remitted under section 4(6) for DBS to reconsider appropriateness unless removal was the only lawful decision. On the facts found, CP had done nothing wrong in her interactions with the vulnerable adults, so removal was the only lawful decision.

• Upper Tribunal (Administrative Appeals Chamber): DBS’s decisions dated 22 February 2023 and 28 September 2023 were set aside in consequence of material mistakes of fact, and CP’s removal from both barred lists was directed.