SM v Disclosure and Barring Service

A mistake of law under section 4(2) of the Safeguarding of Vulnerable Groups Act 2006 must be material. A procedural error is material where it might affect either the outcome or the fairness of the decision.

DBS must act fairly and give a person an effective opportunity to make representations before barring them. Paragraph 16(1) of Schedule 3 requires access to all information on which DBS intends to rely. In most cases this requires provision of the underlying documents, rather than a summary alone. Fairness may require further relevant material.

DBS has a discretion to extend time for representations where there is good reason. After a barring decision, it has a broad discretion to permit late representations, which it should normally exercise so that they are considered.

DBS placed the appellant, a live-in carer, on both the adults’ and children’s barred lists after finding that she had verbally, emotionally and physically abused a vulnerable adult in her care.

She appealed under section 4 of the Safeguarding of Vulnerable Groups Act 2006. She contended that DBS had not provided the documents and CCTV material needed to answer its case, had refused her requests for more time, and had refused permission for late representations. She also challenged the proportionality of barring and her inclusion on the children’s list.

The central issue was whether those procedural failures amounted to material errors of law requiring the barring decision to be remitted.

1. Appeal allowed and remitted to DBS for a new decision. DBS made material errors of law by failing to give the appellant an effective opportunity to make representations. The Tribunal could not direct removal because it could not say that removal was the only lawful outcome: section 4(6) of the Safeguarding of Vulnerable Groups Act 2006.

2. A mistake of law for section 4(2) must be material. A procedural irregularity is material if it might make a material difference to the outcome or to fairness. In this statutory scheme, a failure that deprives a person of a fair opportunity for DBS to decide whether barring is appropriate will normally be material, since that appropriateness judgment is not subject to a merits appeal under section 4(3).

3. DBS, as a public authority, must comply with natural justice. It must give an individual an effective opportunity to make representations. Paragraph 16(1) of Schedule 3 required access to all information on which DBS intended to rely. Although that is an obligation concerning information rather than formal disclosure, it will usually require the provision of the underlying documents. An opportunity to view video evidence may suffice. Fairness can additionally require relevant information which DBS does not itself rely on.

4. The appellant did not receive Annex A within the prescribed period and had no practical opportunity to view the CCTV material. DBS then failed to exercise its discretion under regulation 2(6) of the Safeguarding Vulnerable Groups Act 2006 (Barring Procedure) Regulations 2008 by considering whether there was good reason to extend time.

5. After the decision, DBS also misdirected itself under paragraph 17(2) of Schedule 3 by treating the earlier opportunity to make representations as preventing permission for late representations. That discretion is open-ended. Given natural justice, Convention rights and the public interest in a correct barring decision, DBS should normally permit late representations.

6. The separate proportionality and children’s-list grounds failed. The existing decision was a proportionate Article 8 interference on the evidence then available. It was not irrational to conclude that the appellant might in future undertake regulated activity with children. On remission DBS must decide on current circumstances and risk. The appellant was to remain on the lists pending DBS’s new decision.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal and remitted the barring decision to DBS for a fresh decision.

• Disclosure and Barring Service: By decision letter dated 24 August 2021, included the appellant on the children’s and adults’ barred lists.