LJ v Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may intervene only for an error of law or a material erroneous finding of fact. It must assess the evidence as a whole and may receive oral evidence.

A finding that a person breached safeguarding requirements requires evidence of the underlying duty or requirements. The Tribunal must also address the precise factual allegation relied on by DBS. Where factual errors materially affect a barring decision, the proper course may be to remit for a fresh DBS decision rather than decide appropriateness itself.

The Tribunal may determine proportionality for itself, applying the four-stage test, but that assessment is made by reference to the DBS decision at the time it was made.

LJ v Disclosure and Barring Service was an appeal from DBS's decision of 9 February 2023 to place LJ, a former general manager of a children's home, on the children's and adults' barred lists. DBS relied on four allegations of relevant conduct concerning safeguarding incidents, staff drug use, a child's injury, and other risks to children.

The Upper Tribunal heard LJ's oral evidence and reviewed it with the material before DBS. LJ challenged the factual findings and also advanced legal grounds concerning the pending regulatory investigation and proportionality. The central issues were whether DBS had made errors of fact or law on which its barring decision was based, and the appropriate statutory disposal if it had.

1. The appeal was allowed to the extent that the case was remitted to DBS for a new decision. DBS had made factual mistakes in findings on which its decision was based. The Tribunal directed that LJ remain on both barred lists until DBS made that new decision.

2. A finding that LJ had breached safeguarding requirements concerning the incident involving ECH could not stand without evidence of the rules, policies or protocols establishing the relevant duty. The Tribunal could not assume the applicable safeguarding requirements, particularly in a Welsh setting. DBS also erred in finding that LJ had removed the Debrief Report: the evidence established that she lacked the necessary system permission and there was no contrary evidence.

3. The Tribunal found no factual error in the allegation concerning staff drug use. LJ's delayed response, uncertainty about reporting, insistence on conclusive proof before protective action, and failure to take available precautionary steps supported the finding that she had not acted appropriately and professionally.

4. There was likewise no factual error in the finding concerning CC's injury. Although LJ took some protective steps, they were incomplete. She did not ensure a body map was made, did not provide the full account of the incident and injuries to the relevant safeguarding contact, and permitted the staff member's return subject only to limited restrictions.

5. DBS erred in findings concerning LJ's personal contact with HR and ECH's sexualised behaviour. The evidence did not establish a safeguarding failure regarding HR, while LJ had taken appropriate and professional steps to protect ECH. DBS also accepted an error concerning the Christmas Eve fete. The finding concerning reports of a sexualised relationship between CC and CL was nevertheless sustainable.

6. The Tribunal rejected the legal challenges based on DBS not awaiting the regulatory investigation and on irrationality. It also held, following KS v Disclosure and Barring Service [2025] UKUT 45 (AAC), that proportionality is for the Upper Tribunal itself. Applying the four-stage test from Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700, it considered the original decision proportionate on DBS's original findings. It did not undertake that exercise after excluding the erroneous findings, because DBS must now decide afresh, potentially on further evidence.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed to the extent of remittal under section 4(6)(b) and (7)(b) of the Safeguarding Vulnerable Groups Act 2006; DBS's decision was not confirmed because material factual mistakes were identified.
• Disclosure and Barring Service: decision letter dated 9 February 2023 included LJ in the children's and adults' barred lists under paragraphs 3 and 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.