JR v Disclosure and Barring Service

An Upper Tribunal costs order is exceptional. Costs may be awarded only within the limits of rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008, including where a party has acted unreasonably in bringing, defending or conducting proceedings. Unreasonable conduct requires more than an unsuccessful outcome. Conduct is unreasonable where it is vexatious, harassing or incapable of a reasonable explanation. The power must be exercised with significant restraint.

In assessing the conduct of the Disclosure and Barring Service, the Tribunal must consider its protective and forward-looking statutory function. A barring decision based on the information available at the time may have a reasonable explanation even if later information causes the decision to be reviewed and withdrawn. The subsequent success of an appeal does not, by itself, establish unreasonable conduct or justify a costs order.

The appellant challenged a Disclosure and Barring Service decision dated 22 March 2024 placing her on the Adults’ Barred List and Children’s Barred List. Permission to appeal was granted after an oral hearing on the basis that it was arguable that the decision involved an error of law or material fact.

After receiving further evidence, the Disclosure and Barring Service reviewed its decision under paragraph 18A of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 and removed the appellant from both lists. The appeal consequently became academic and was struck out. The appellant then sought costs for the time and resources spent preparing the appeal. The issue was whether the respondent had acted unreasonably in bringing, defending or conducting the proceedings.

1. The application for costs was refused. The absence of a schedule of costs constituted a procedural error under rule 10(5)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008, but the requirement was waived under rule 7(2)(a), having regard to the appellant’s status as an unrepresented litigant.

2. Section 29 of the Tribunals, Courts and Enforcement Act 2007, read with rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008, gave the Tribunal a discretion to make a costs order only within the specified circumstances. The relevant ground was rule 10(3)(d), where a party or representative had acted unreasonably in bringing, defending or conducting proceedings.

3. The approach in Thapa v Entry Clearance Officer [2018] UKUT 54 (IAC), drawing on Cancino and Ridehalgh v Horsefield [1994] Ch 205, required significant restraint. Conduct is not unreasonable merely because it produces an unsuccessful result or because a more cautious representative might have acted differently. The question is whether the conduct has a reasonable explanation.

4. The respondent’s conduct had such an explanation. Its statutory function under section 87 of the Protection of Freedoms Act 2012 was to perform the barring functions under the Safeguarding Vulnerable Groups Act 2006. That function was protective and forward-looking, aimed at preventing risks of harm to children and vulnerable adults, rather than prosecutorial or punitive. The respondent was entitled to rely on the information available when it made the barring decision and to defend the appeal on that basis.

5. The later evidence was not available when the original decision was made. Once the respondent became aware that review was required, it acted promptly and removed the appellant from the barred lists. The fact that the appeal process led to a favourable review did not show that the original decision or the conduct of the proceedings had been improper, unreasonable or negligent.

6. The application was therefore refused.

1. Upper Tribunal (Administrative Appeals Chamber): Permission to appeal was granted on 8 April 2025. Following a review by the Disclosure and Barring Service, the appellant was removed from both barred lists and the appeal was struck out as academic on 29 August 2025. The present costs application was refused.