EQ v Disclosure and Barring Service

A person facing inclusion in a barred list must receive a minded-to-bar letter that fairly particularises the allegations. The letter must identify the case sufficiently clearly to permit meaningful representations, including on the statutory question of appropriateness. A later ability to reconstruct parts of the case from disparate material does not cure an unfair failure at that stage.

On an appeal alleging a material mistake of fact, the Upper Tribunal may consider all the evidence, including oral evidence, and make its own findings of primary fact. It need not defer to the DBS on facts which do not engage its specialist safeguarding expertise.

EQ, a registered nurse, appealed the DBS decision of 26 October 2022 to place her on both the Children’s and Adults’ Barred Lists for relevant conduct. The decision rested on alleged medication errors on two dates in September 2021 and an allegation that she attended work under the influence of alcohol in April 2022.

EQ contended that the minded-to-bar letter did not adequately particularise the medication allegations. She also challenged the factual findings. At the Upper Tribunal hearing she gave oral evidence, including an account that she drank substantial further alcohol after arriving at work and returning to her car.

The central issues were whether the DBS process had afforded procedural fairness and whether its findings of relevant conduct were affected by mistakes of fact.

1. Appeal allowed. The DBS decision contained material mistakes of law and fact. It was set aside and remitted for a fresh decision. EQ was to remain on the barred lists pending that decision.

2. The medication allegations were not fairly particularised in the minded-to-bar letter. Although the DBS performs a protective function, barring may have draconian consequences for a person’s livelihood. The process must therefore enable the individual, including an unrepresented individual, to understand the case with reasonable clarity and prepare meaningful representations.

   The DBS could not reasonably expect EQ to piece together the allegations from several documents, particularly where the material included contradictory anonymous allegations. Later information in the Missed Medication Log could not cure the unfairness. The representations had to be invited in response to a properly particularised letter, so that the DBS could assess appropriateness in light of them.

3. On the alcohol allegation, the Tribunal applied the approach to Safeguarding Vulnerable Groups Act 2006, section 4 appeals confirmed in DBS v RI [2024] EWCA Civ 95. It could consider all the written and oral evidence and make its own findings of primary fact. Whether EQ had consumed excessive alcohol before arriving at work did not involve DBS safeguarding expertise.

4. The Tribunal accepted EQ’s new account that she drank further wine while in her car after leaving the workplace. That account was capable of explaining the later breathalyser reading. The evidence of alcohol being smelt on the premises was untested multiple hearsay and carried minimal weight. The DBS finding that EQ attended work under the influence of alcohol was therefore vitiated by a material mistake of fact.

5. The Tribunal made no direction under section 4(7)(a) requiring DBS to proceed on specified facts, including because it lacked expert evidence on alcohol toxicity. It directed under section 4(7)(b) that EQ remain barred meanwhile.

• Upper Tribunal (Administrative Appeals Chamber): Allowed EQ’s appeal from the DBS barring decision dated 26 October 2022, set it aside, and remitted the matter to the DBS for a fresh decision.
• Disclosure and Barring Service: Decided to include EQ in the Children’s and Adults’ Barred Lists on the basis of relevant conduct.