OS v Disclosure and Barring Service

An appeal against a barring decision under the Safeguarding Vulnerable Groups Act 2006 is confined to mistakes of law or fact. Whether inclusion in a barred list is appropriate is not appealable. Hearsay evidence is not automatically inadmissible in the DBS system. It must be assessed in the round, including its consistency with other evidence and the absence of cross-examination. A person involved in regulated care retains personal responsibility to act professionally, even where another worker is more experienced or is said to be supervising. Matters such as inexperience, fatigue, online training and probationary status generally concern appropriateness, rather than an appealable mistake of fact.

OS appealed against the Disclosure and Barring Service decision dated 4 May 2023 to include him on both the adults’ and children’s barred lists. The decision followed an incident in which a vulnerable adult fell from his bed while OS and a co-worker were providing personal care. The DBS did not rely on the accident alone. It relied principally on failures to report and record the incident, misleading statements, and an attempted cover-up.

OS alleged breaches of Article 6 of the ECHR, unfair reliance on hearsay evidence, unfair alteration of an allegation, and mistakes of fact concerning his responsibility for the relevant omissions. The central issues were whether the DBS decision involved an appealable error of law or material mistake of fact.

1. Appeal dismissed. The DBS decision dated 4 May 2023 involved no error of law or material mistake of fact.
2. Under section 4(2) of the Safeguarding Vulnerable Groups Act 2006, an appeal lies on a mistake of law or in a finding of fact on which the decision was based. Section 4(3) expressly provides that appropriateness for inclusion in a barred list is not a question of law or fact. The Upper Tribunal therefore could not entertain grounds directed solely to the appropriateness of the barring decision.
3. The reliance on Kim’s hearsay evidence did not make the process unfair or incompatible with Article 6 of the ECHR. Hearsay was not required to be excluded. Its weight had to be assessed in the round, having regard to its reliability, consistency with other evidence, and the fact that OS had not been able to test it by cross-examination. The approach was consistent with R (on the application of) Royal College of Nursing and Others v Secretary of State for the Home Department [2010] EWHC 2761 at [103].
4. The change in allegation 1 from lifting the service user to assisting in lifting him did not create unfairness. It reflected further consideration of the evidence and OS’s representations. The substance of the allegation was clear, and the underlying conduct was not disputed.
5. The asserted mistake concerning supervision was rejected. Kim was not OS’s senior, and both were employed at the same grade. OS had completed the relevant training and had been approved for solo working. In any event, each worker retained a personal responsibility to act professionally.
6. Mitigating matters, including OS’s recent arrival in the United Kingdom, online training, probationary status, fatigue and lack of familiarity with the service user, did not establish mistakes of fact. They concerned the appropriateness of inclusion, which was within the DBS’s exclusive and non-appealable jurisdiction.
7. The fall itself was treated as an accident. The material safeguarding concern arose from the subsequent failures to report and record it and the repeated attempts to mislead the next of kin and the employer.

1. Upper Tribunal (Administrative Appeals Chamber): dismissed OS’s appeal against the Disclosure and Barring Service decision dated 4 May 2023. The decision was issued on 8 January 2025.