HZ v Disclosure & Barring Service

An appeal against a barring decision lies only for a material mistake of law or a material mistake in a finding of fact on which the decision was based. The Upper Tribunal may consider all evidence, including oral evidence unavailable to the Disclosure and Barring Service, and may make its own factual findings. Assessment of future risk and appropriateness remains principally for the DBS, subject to legal or factual error and proportionality review. A criminal acquittal does not determine whether relevant conduct was proved on the balance of probabilities. Evidence of mandatory training alone may be insufficient to establish that a person might in future engage in regulated activity with children.

HZ, a staff nurse, appealed against the DBS decisions of 16 April and 29 July 2024 to include and retain her on the Children’s Barred List and Adults’ Barred List under paragraphs 3 and 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. The DBS found that she had restricted a patient’s movement by tying a blanket across the patient to the bed rails.

HZ had been acquitted of a related criminal charge, and disciplinary proceedings had been overturned on appeal. The issues were whether the DBS had made material mistakes of fact or law, whether the barring decisions were disproportionate, and whether the statutory threshold for possible future regulated activity with children was met.

The appeal was dismissed in relation to the Adults’ Barred List and allowed in relation to the Children’s Barred List. HZ’s inclusion on the ABL was confirmed. The Tribunal directed her removal from the CBL.

1. The Tribunal had jurisdiction to consider all evidence and make its own findings of fact. It was not confined to material before the DBS, although risk assessments remained matters for the DBS unless based on factual or legal error or irrationality.
2. On the balance of probabilities, HZ had restricted the patient’s movement by tying a blanket to the bed rails. The Tribunal relied on the chronology, the patient’s condition, the absence of evidence that another person had the opportunity or motive to restrain her, HZ’s initial reaction, and her contemporary written account. The criminal acquittal did not establish a mistake of fact because the criminal offence required proof of a different mental element and a higher standard of proof.
3. The DBS was entitled to proceed before the criminal and NMC proceedings concluded. The statutory safeguarding scheme did not require it to await those proceedings, and its decision to proceed was rational.
4. The Tribunal conducted its own proportionality assessment under Article 8. Barring from regulated activity with vulnerable adults pursued an important safeguarding objective, was rationally connected to it, was necessary, and struck a fair balance.
5. The DBS had no reliable evidence that HZ might in future engage in regulated activity with children. Mandatory child-protection training, without evidence of paediatric training, experience, applications or intention to work with children, was insufficient. Her inclusion on the CBL therefore involved mistakes of fact and law.

Upper Tribunal (Administrative Appeals Chamber) [2025] UKUT 416 (AAC): the appeal against inclusion on the Adults’ Barred List was dismissed and inclusion was confirmed. The appeal against inclusion on the Children’s Barred List was allowed, and removal from that list was directed.