HET v The Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may reconsider whether the DBS was mistaken in a finding of fact on which barring depended. Where the appellant gives oral evidence, the Tribunal must assess that evidence together with the written evidence and may determine whether the relevant act occurred. It need not identify a more granular mistake. If a mistake is established, the Tribunal may direct removal or remit the matter. Removal is appropriate where, on the facts found, barring is not lawfully open to the DBS as a reasonable decision.

HET appealed against the DBS’s decision of 3 June 2024 to include her on both the Children’s and Adults’ Barred Lists under Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. The decision concerned alleged boundary breaches involving a 16-year-old looked-after child. Permission to appeal was granted after it was considered realistically arguable that the DBS had made mistakes of fact and failed to engage with HET’s evidence. Following an in-person hearing, the central issues were whether the DBS had made relevant mistakes of fact and, if so, whether the matter should be remitted or the Tribunal should direct removal.

1. Appeal allowed. The Tribunal directed the DBS to remove HET from both the Children’s and Adults’ Barred Lists.
2. Section 4 creates a mistake phase and, if a mistake is established, a disposal phase. Under section 4(2), an appeal may proceed only on a mistake of law or in a finding of fact on which the DBS decision was based. Whether inclusion is appropriate is not itself a question of law or fact under section 4(3).
3. The Tribunal applied the approach in Kihembo v DBS [2023] EWCA Civ 1547 and DBS v RI [2024] EWCA Civ 95. Where the barred person gives relevant oral evidence, the evidence before the Tribunal is necessarily different from the paper-based material before the DBS. The Tribunal must assess the quality and truthfulness of the oral and written evidence together. It may find that the DBS was mistaken about whether the relevant acts occurred.
4. The Tribunal accepted HET’s evidence in its entirety and found mistakes of fact in all the DBS findings. Two matters were accepted as errors of judgment or professional boundary issues, but they did not support the serious allegations or justify barring. The DBS had also relied on an inadequate investigation, failed properly to engage with HET’s comprehensive evidence, and reached unsound conclusions.
5. Under section 4(6), the Tribunal may direct removal or remit the matter. Following DBS v AB [2021] EWCA 1575, remission is generally appropriate where the lawful appropriateness decision remains open. Here, however, the Tribunal found that no one could reasonably consider barring justified on the facts established. Removal was therefore the appropriate disposal.

• Upper Tribunal (Administrative Appeals Chamber) — The appeal against the DBS final decision was allowed. HET was directed to be removed from both Barred Lists.
• Disclosure and Barring Service — By final decision dated 3 June 2024, the DBS included HET on both Barred Lists under Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.
• Permission stage — Permission to appeal was granted by Upper Tribunal Judge Butler on 29 November 2024.