KH v Disclosure and Barring Service

An appeal against inclusion in the adults’ barred list lies only on the grounds that the Disclosure and Barring Service made a mistake of law or a mistake in a finding of fact on which its decision was based. The Upper Tribunal must assess the evidence relevant to the challenged findings, including evidence supplied on appeal. In reviewing proportionality, appropriate weight must be given to the Service’s specialist assessment of safeguarding risk and to public confidence in safeguarding vulnerable persons. Where the factual findings are rationally supported and the safeguarding risk outweighs the detriment of being barred, the decision is not disproportionate.

The Disclosure and Barring Service decided on 12 December 2022 to include KH, a domiciliary care worker, in the adults’ barred list under paragraph 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. The decision was based on findings that KH had failed to wear full personal protective equipment, discussed sexual themes with a vulnerable adult after being asked to stop, and spoke inappropriately to another vulnerable adult.

KH appealed under section 4 of the Act, challenging those factual findings and arguing that the barring decision was disproportionate. Permission to appeal was granted. KH did not attend the Upper Tribunal hearing, so the Tribunal considered the documentary evidence and her written assertions without oral evidence or cross-examination.

1. Appeal dismissed. The decision of the Disclosure and Barring Service to include KH in the adults’ barred list was confirmed.

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 decision was based. Whether inclusion in a barred list was appropriate was not itself a question of law or fact under section 4(3).

3. The Tribunal assessed the whole documentary evidence before it, including KH’s assertions in her appeal application. The fact that the evidence was not identical to that before the Service did not prevent the Tribunal from deciding whether the Service had made a factual mistake.

4. On the balance of probabilities, the contemporaneous evidence concerning repeated failures to wear full personal protective equipment, including the employer’s spot check, was more persuasive than KH’s denials. There was no mistake in the findings that she had failed to wear the required equipment and that this amounted to neglect placing service users at risk.

   The contemporaneous evidence concerning the conversation with Ms M was preferred to KH’s denial. The evidence concerning Ms E, supplied by another care professional with no apparent reason to omit relevant context, also supported the finding that KH had spoken inappropriately and caused Ms E to become angry. No material mistake of fact was established.

5. The decision was not irrational, perverse or one which no reasonable barring body could have made. Proportionality required a balance between the safeguarding risk posed by KH and the detriment of preventing her from working with vulnerable adults. Appropriate weight had to be given to the Service’s specialist safeguarding assessment and to public confidence in safeguarding vulnerable persons. On the evidence, the balance favoured avoiding the safeguarding risk, so the decision was not disproportionate or otherwise mistaken in law.

• Disclosure and Barring Service: On 12 December 2022, decided to include KH in the adults’ barred list under paragraph 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.
• Upper Tribunal (Administrative Appeals Chamber): Permission to appeal was granted on 16 November 2023. The appeal was dismissed and the Service’s decision was confirmed.