DWH v Disclosure & Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may correct material mistakes of law or fact underlying a barring decision. It may consider all evidence, including oral evidence unavailable to the DBS, and make its own factual findings. Assessment of safeguarding risk and appropriateness remains primarily for the DBS, subject to legal and factual error and proportionality review.

Relevant conduct against an adult may support inclusion on the adults’ barred list. Inclusion on the children’s barred list additionally requires reliable evidence that the person is, has been, or might in future be engaged in regulated activity relating to children. A general assumption that hospital volunteering gives access to children is insufficient.

The DBS included DWH on the children’s and adults’ barred lists under paragraphs 3 and 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. It found that, while volunteering on an adult hospital ward, he entered a male patient’s room and attempted to undo the patient’s pyjama fastenings in order to look at or touch his genitals.

DWH denied the conduct and challenged the reliability of the evidence, the fairness of the investigation, the opportunity to make representations, the risk assessment, and the basis for treating his role as involving regulated activity with children. The central issues were whether the DBS had made material mistakes of law or fact in barring him.

1. Adults’ barred list. The appeal was dismissed in relation to the adults’ barred list. On the balance of probabilities, DWH had entered the patient’s room and attempted to undo his pyjama fastenings. The evidence included the patient’s consistent account, the contemporaneous report of CCTV showing DWH entering the room, and DWH’s unexplained response when told that CCTV had been viewed. The DBS therefore made no material mistake of fact in finding relevant conduct.
2. The DBS was entitled to rely on descriptions of CCTV and hearsay material. Although it would have been preferable to obtain and view the footage, its absence did not make the decision unlawful on these facts. The DBS gave adequate reasons and expressly applied the balance of probabilities.
3. DWH had been given the statutory opportunity to make representations. The DBS was not required to delay its decision pending further disclosure sought from the Trust. Any shortcomings in the Trust’s internal process were not material because DWH had supplied contemporaneous accounts, had the opportunity to respond to the DBS, and fully addressed the allegations before the Tribunal.
4. The Tribunal could make its own factual findings but could not substitute its own assessment of safeguarding risk. Risk assessment was primarily for the DBS and would be disturbed only for legal error, including irrationality, or where founded on a material factual mistake. The DBS’s assessment of risk to vulnerable adults was rational and supported by its findings.
5. Children’s barred list. The appeal was allowed in relation to the children’s barred list. The statutory test required the DBS to have reason to believe that DWH was, had been, or might in future be engaged in regulated activity relating to children. The evidence established volunteering in an oncology setting but did not establish that children were treated there, that DWH had access to children, or that he might work in regulated activity with children. The general assertion that his role allowed access to children was insufficient.
6. The Tribunal therefore found a material mistake of fact and law in applying the regulated-activity test for children and directed DWH’s removal from the children’s barred list. The decision to include him on the adults’ barred list was confirmed.

Upper Tribunal (Administrative Appeals Chamber): DWH appealed against the DBS decision dated 22 July 2024. The appeal was dismissed in relation to the Adults’ Barred List and allowed in relation to the Children’s Barred List.