MG v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may itself evaluate all the evidence to decide whether DBS made a material mistake of fact. It is not confined to reviewing whether DBS’s findings were reasonable.

DBS’s correct finding that a worker fell asleep on duty did not justify findings that she had planned to sleep, had brought bedding from home for that purpose, or had failed to arrange cover for intended sleep. Those findings were materially wrong because DBS had placed substantial weight on them when assessing future risk.

The Tribunal retained the proportionality issue. It held that proportionality is objectively determined by the Tribunal, while giving due weight to DBS as the primary safeguarding decision-maker. DBS subsequently removed the appellant from both barred lists and the appeal was disposed of by consent.

MG v Disclosure and Barring Service was an appeal from DBS’s decision of 16 January 2024 to place MG, a Night Support Worker, on the children’s and adults’ barred lists. DBS concluded that she had deliberately slept on a waking-night shift and created a risk to residents.

The appellant accepted that she had fallen asleep, but contended that this had been inadvertent and relied on mitigating circumstances. The Tribunal first determined the material-fact ground and adjourned the proportionality ground for submissions.

Before that issue was determined, DBS reviewed the matter under paragraph 18A of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006, removed the appellant from both lists, and both parties consented to disposal of the appeal.

1. Preliminary decision. The Tribunal held that DBS had made material mistakes of fact. It correctly found that the appellant fell asleep while on duty. However, the evidence did not establish that she intended to sleep, had brought a quilt from home to facilitate sleep, or had failed to notify colleagues of a planned sleep period.

2. The appellant deliberately sat down to rest with a blanket over her knees, thereby choosing a course that made sleep more likely. But she fell asleep inadvertently. There was no relevant procedure for arranging cover before resting, and no reasonable telephone facility which she failed to use for a purpose that did not arise.

3. Those errors were material. DBS’s assessment of irresponsibility, lack of empathy, likely repetition and future risk placed considerable weight on the supposed deliberateness of the conduct. The errors therefore put a materially different complexion on both the incident and the proportionality assessment.

4. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Tribunal could determine whether a material factual error had occurred and whether inclusion was disproportionate under Article 8. It could not conduct a general merits reconsideration of appropriateness. Proportionality was nevertheless for objective determination by the Tribunal, which had to give due weight to DBS’s primary safeguarding assessment.

5. The Tribunal treated its ruling as a preliminary decision and directed further submissions on proportionality, rather than immediately remitting the case. DBS then removed the appellant from both barred lists on review under paragraph 18A of Schedule 3. The appeal was consequently disposed of by consent under rule 39.

• Upper Tribunal (Administrative Appeals Chamber): On a preliminary issue, held that DBS’s decision involved material mistakes of fact. The proportionality issue was adjourned for further submissions.
• DBS: On review under paragraph 18A of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006, DBS removed the appellant from the children’s and adults’ barred lists on 12 December 2024.
• Upper Tribunal (Administrative Appeals Chamber): The appeal was disposed of by consent under rule 39 of the Tribunal Procedure (Upper Tribunal) Rules 2008.