RM v The Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may intervene only for a material mistake of fact or law. The assessment of safeguarding risk and the appropriateness of inclusion in a barred list remain for the Disclosure and Barring Service, subject to limited challenge on rationality or proportionality grounds.

The Tribunal may consider fresh evidence, but must assess it with the whole evidential picture. An error concerning one allegation will not justify intervention if it was not material to the barring decision. Adequate reasons are sufficient; the decision must be read as a whole.

RM v The Disclosure and Barring Service was an appeal against the DBS decision of 23 April 2024 to place RM, a care assistant, on the Adults’ Barred List.

After a vulnerable resident fell, the DBS found that RM had failed promptly and accurately to report the incident, had misled the nurse in charge, and had improperly transferred the resident back to bed. RM contended that those findings were materially mistaken. At the Upper Tribunal hearing she gave oral evidence and relied on a further witness statement.

The central issues were whether the DBS had made a material factual or legal error, and whether the barring decision was disproportionate.

1. Appeal dismissed. The DBS decision was confirmed. The Tribunal found no material mistake of fact or law in the decision to include RM on the Adults’ Barred List.

2. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, an appeal lies only for a mistake of fact or law on which the barring decision was made. Whether inclusion is appropriate is not itself a question of fact or law. The assessment of risk and appropriateness is for the DBS, save for a legally flawed, irrational or disproportionate decision.

3. The Tribunal could consider fresh evidence as well as the material before the DBS. It treated the untested hearsay evidence cautiously, but did not find RM’s oral account credible when assessed with the contemporaneous records and the other evidence. It found that RM had not reported the fall to the nurse and had sought to conceal it.

4. The evidence that RM herself returned the resident to bed was not strong. Any error in that finding was nevertheless immaterial. The material misconduct was the failure accurately to report a serious incident and the subsequent concealment. That conduct delayed assessment and treatment of a vulnerable resident, caused harm or at least created a risk of harm, and was sufficient to support barring.

5. The employer’s alleged procedural failures did not establish unfairness by the DBS. The DBS had given RM an opportunity to make representations and had adequately explained its decision. Barring was not disproportionate, given the seriousness of the conduct, the resident’s vulnerability and RM’s lack of insight into her responsibility.

• Upper Tribunal (Administrative Appeals Chamber): dismissed RM’s statutory appeal and confirmed the DBS barring decision.
• Disclosure and Barring Service: on 23 April 2024 decided to include RM on the Adults’ Barred List.