DGW v Disclosure and Barring Service

On a statutory appeal against inclusion in the children’s barred list, the Upper Tribunal may interfere only for a mistake of law or a material mistake in a factual finding. It must determine disputed primary facts on the balance of probabilities; an acquittal in criminal proceedings does not determine that issue because the criminal standard is different.

A finding about a person’s continuing belief or attitude may properly be inferred from proved past conduct and the person’s present response to it. A decision-maker does not err in law by failing to consider information it did not have. Inclusion remains proportionate where the justified safeguarding benefit outweighs the adverse effect on the individual’s rights.

DBS included DGW in the children’s barred list under paragraph 3 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. It found that, in 2001, he had developed an inappropriate sexual relationship with a 14-year-old girl in residential care, bought her alcohol and cannabis, and disregarded warnings about contact with her.

DGW appealed to the Upper Tribunal under section 4(2). Permission was limited to alleged factual errors concerning the relationship, warnings, alcohol and cannabis, and his continuing beliefs and attitudes. It also covered an alleged failure to consider his subsequent life and an alternative proportionality challenge.

The central issues were whether DBS had made a permitted factual or legal error and whether its decision was disproportionate.

1. Appeal dismissed. The Tribunal confirmed DBS’s decision to include DGW in the children’s barred list.

2. Under section 4(2) of the Safeguarding Vulnerable Groups Act 2006, the appeal lay only for a mistake of law or a mistake in a factual finding on which the decision was based. Section 4(3) excluded the ultimate appropriateness of inclusion from being a question of law or fact.

3. The Tribunal found no factual mistake. It preferred, on the balance of probabilities, the contemporaneous evidence of the girl, other young women and girls, residential-unit staff and police evidence to DGW’s denials. That evidence established a sexual and inappropriate relationship, police warnings, and provision of alcohol and cannabis. DGW’s acquittals on sexual-offence charges did not determine those matters because criminal proceedings apply the higher standard of proof.

4. DBS was entitled to infer from the proved facts that DGW had believed that the 14-year-old could consent to sex and that he had an attitude of acting irrespective of others’ safety or concern. His continuing denial of the sexual and unsafe nature of the relationship supported the further inference that those beliefs and attitudes remained at the date of DBS’s decision.

5. DBS could not make an error of law by failing to consider information it did not possess. Following the approach in PF v DBS [2020] UKUT 256 (AAC), omission of relevant information may instead amount to a factual error. Here, DGW’s later family life, absence of reported safeguarding concerns and mental-health difficulties would not have altered DBS’s findings about his continuing beliefs and attitudes.

6. Applying the fourth proportionality limb stated by Lord Reed in Bank Mellat v HM Treasury (No 2) [2014] AC 700, the Tribunal held that the interference with DGW’s proposed caretaking work, finances and wellbeing was outweighed by the contribution that barring made to safeguarding children. Appropriate weight was given to DBS’s safeguarding expertise.

• Upper Tribunal (Administrative Appeals Chamber): Appeal dismissed and DBS’s decision of 17 January 2024 confirmed.
• Disclosure and Barring Service: Included DGW in the children’s barred list under paragraph 3 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.