JR v Disclosure and Barring Service

Inclusion in a barred list is a protective, forward-looking measure. It must be justified by rational reasoning based on a real likelihood of future regulated activity and harm. The fact that a person has previously engaged in regulated activity may satisfy the statutory threshold, even where the activity was historic and brief. It does not, however, make inclusion proportionate in every case.

When assessing proportionality, the Upper Tribunal may consider whether the evidence establishes any continuing need for forward-looking protection. A decision which effectively penalises past conduct, without a rational connection to future protection, is disproportionate and constitutes a mistake of law.

JR appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006 against the Disclosure and Barring Service’s decision to include him in the adults’ barred list. DBS relied on a conditional caution arising from an incident involving his daughter and a further incident in which he used excessive force against another daughter.

DBS had removed JR from the children’s barred list and abandoned reliance on a separate nightclub incident. The remaining issues were whether the statutory test for regulated activity was satisfied, whether DBS had made mistakes of fact, and whether inclusion in the adults’ barred list was disproportionate.

The appeal was allowed on the proportionality ground. The Upper Tribunal directed DBS to remove JR from the adults’ barred list under section 4(6)(a) of the Safeguarding Vulnerable Groups Act 2006.

1. Scope and evidence. The Tribunal confined the appeal to the grounds for which permission had been granted. It was entitled to hear JR’s oral evidence, assess it with the documentary evidence, and make its own findings of primary fact. The relevant circumstances were those existing when DBS made its decision, although later evidence could be considered if referable to that date.
2. Relevant conduct. The caution and the admitted incidents were sufficient. If the conduct were repeated against a vulnerable adult, it would or would be likely to endanger that adult within paragraph 10(1)(b) of Schedule 3. The Tribunal accepted that the conduct involved excessive force and could recur under different circumstances producing similar pressure. DBS had made no mistake in its factual findings.
3. Regulated activity. JR had worked for a few months with vulnerable adults in 2012 or 2013. That satisfied the “has been” limb of paragraphs 8(2)(b) and 9(1)(a)(ii) of Schedule 3. The work was an isolated stop-gap between college and permanent employment, and there was no evidence that he had worked or intended to work with vulnerable adults thereafter.
4. Proportionality. Although section 4(3) prevents an appeal based merely on whether inclusion was appropriate, a disproportionate decision is an error of law. Applying the four-stage analysis in Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700, the evidence did not establish a continuing need for forward-looking protection from JR or a rational connection between barring him and that objective. The stigma associated with inclusion could also affect his family-court and social-care circumstances.
5. Permitting inclusion on the basis of minimal historic regulated activity would convert the scheme from a protective measure into a penalty for past conduct. Inclusion had to be justified by reasoning based on likelihood and reality. DBS’s decision was therefore disproportionate and JR was removed from the adults’ barred list.

• Upper Tribunal (Administrative Appeals Chamber): DBS’s decision of 7 June 2024, as modified on 2 October 2024, was challenged under section 4 of the Safeguarding Vulnerable Groups Act 2006. The appeal was allowed on proportionality grounds and DBS was directed to remove JR from the adults’ barred list.