KS v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal must determine for itself whether a DBS barring decision is proportionate under Article 8. It must not apply a rationality or Wednesbury review. It must, however, give appropriate weight to DBS’s judgment as the statutory primary decision-maker.

The proportionality inquiry follows the four-stage analysis in [2014] AC 700. It includes whether a less intrusive measure could protect vulnerable groups without unacceptable compromise. A professional regulator’s interim suspension did not provide an adequate alternative where it did not protect against other regulated activity. Proportionality limits what may be appropriate, but does not itself decide appropriateness.

DBS included KS, a nurse, in both the children’s and adults’ barred lists after finding repeated failures in patient care, record-keeping and medication administration, including dishonest conduct.

KS appealed directly to the Upper Tribunal under section 4 of the Safeguarding Vulnerable Groups Act 2006. Permission was granted on grounds concerning proportionality and support and guidance at work. Shortly before the hearing, KS sought to advance broader factual challenges to DBS’s findings.

A Presidential Panel considered the scope of the permission, whether the grounds could be amended, and the correct approach to proportionality where inclusion in a barred list interferes with Article 8 rights.

1. Appeal dismissed. DBS had made no material mistake of fact or law. Its decision to include KS in both barred lists was confirmed.

2. The grant of permission was confined to the grounds on which it was given. It covered proportionality and the alleged absence of effective support and guidance. It did not authorise a general challenge to DBS’s factual findings. Although section 4 does not itself enlarge an appeal after permission, the Upper Tribunal may permit amendment of the notice of appeal under rule 5(3)(c) of the Tribunal Procedure (Upper Tribunal) Rules 2008. A formal and reasonably prompt application is required. The proposed amendment was refused because it was late, undefined and unfair to DBS.

3. The Tribunal must decide Article 8 proportionality for itself as the first judicial consideration of an administrative decision. This is a question of law. It must make an independent assessment, rather than review DBS’s process for rationality, while according appropriate weight to DBS’s statutory role and expertise.

4. Applying the four-stage proportionality analysis in [2014] AC 700, the objective of protecting children and vulnerable adults was sufficiently important, and barring KS from regulated activity was rationally connected to it. DBS had no power to impose a temporary, conditional or occupation-specific bar. The NMC’s interim suspension prevented nursing practice only; it was not an adequate alternative safeguard for other regulated activity.

5. The interference with KS’s private life and employment opportunities was outweighed by the safeguarding objective. The findings of falsified records, unauthorised use of another nurse’s initials and non-disclosure of dismissal were transferable concerns of honesty, not merely clinical failings. The evidence also established that KS had received support and guidance from her employer.

• Upper Tribunal (Administrative Appeals Chamber): appeal from DBS’s decision letter of 21 March 2024. The Tribunal dismissed the appeal and confirmed KS’s inclusion in both barred lists.