AA v Disclosure and Barring Service

Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may correct a material factual finding on which a barring decision was based. The Tribunal must construe the actual terms of a safeguarding suspension. It cannot treat conduct as a breach merely because the person ought, in general terms, to have understood that it was prohibited.

Where a suspension prohibited contact with persons connected with an investigation and discussion of the matter with employees or clients, contact with a person who was not connected with the investigation, without discussion or influence concerning it, did not breach those terms. A material error in such a finding required the barring decision to be remitted for redetermination.

The appellant, a support worker, was placed on the Children’s and Adults’ Barred Lists by the Disclosure and Barring Service in a final decision letter dated 20 October 2021. The DBS found that she had stolen money from a vulnerable adult, attempted to destroy cashbook evidence, and breached a safeguarding suspension.

She appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006, alleging factual and legal errors. At an oral hearing, she gave evidence challenging each allegation. The central issue was whether the DBS had made a material mistake of fact in a finding on which its barring decision was based.

1. Appeal allowed and remitted. The Tribunal upheld the DBS’s findings, on the balance of probabilities, that the appellant stole £100 following the cash withdrawal of 11 April 2020 and that she removed, damaged or attempted to dispose of cashbooks on 31 October 2020. Her oral accounts were inconsistent, increasingly detailed over time, and not credible. They did not establish that the DBS had been mistaken in those findings.

2. The Tribunal held that the DBS had made a material mistake of fact in finding that the appellant breached the terms of her suspension. The suspension letter prohibited contact with anyone connected with the financial-abuse investigation, attempts to contact or influence such a person, and discussion of the matter with any employee or client.

3. FOA was not connected with the investigation when the appellant telephoned him and attended the workplace. There was no evidence that she discussed the investigation with him or sought to influence him about it. The letter did not prohibit contact with every employee or attendance at the workplace. The appellant’s lack of knowledge as to whether FOA might be involved, and the asserted expectation that she should have known not to attend, could not enlarge the written terms of the suspension.

4. The erroneous suspension finding was one on which the DBS’s decision to bar the appellant was based. Applying the approach to disposal in Kihembo v Disclosure and Barring Service [2023] EWCA Civ 1547, the appropriate course was not to dismiss the appeal as immaterial, but to remit the matter for a new DBS decision. The Tribunal did not need to determine the remaining alleged errors of law.

5. Under section 4(7) of the Safeguarding Vulnerable Groups Act 2006, the appellant was to be removed from both barred lists pending the DBS’s fresh decision.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal from the DBS final decision letter of 20 October 2021, set aside its effect through remittal, and directed interim removal from both barred lists.
• Disclosure and Barring Service: decided to include the appellant on the Children’s Barred List and the Adults’ Barred List.