GL v Disclosure and Barring Service

Retention on a barred list engages article 8 and must be proportionate. The Upper Tribunal may consider proportionality as a question of law, although the underlying decision whether inclusion is appropriate is not itself a question of law or fact under the Safeguarding Vulnerable Groups Act 2006. The four-stage Bank Mellat analysis applies: importance of the objective, rational connection, availability of a less intrusive measure, and fair balance. Barring is an all-or-nothing measure with no power to impose conditions. A disclosure certificate will not necessarily provide an adequate alternative where the risk is unacceptably high. The assessment must focus on circumstances existing when the barring decision was made, while giving appropriate weight to the specialist decision-maker. Limited employment and personal consequences may be outweighed by the protection of children.

The appellant had been automatically included in the children’s and adults’ barred lists after accepting a caution for arranging and facilitating sexual activity between two 14-year-old girls and an adult male. Following late representations, the Disclosure and Barring Service retained her on the children’s barred list on 22 May 2024 but removed her from the adults’ barred list because the regulated-activity test was not met.

Permission to appeal was granted only on whether retention on the children’s barred list was proportionate. The central issues were the Upper Tribunal’s jurisdiction under section 4 of the Safeguarding Vulnerable Groups Act 2006, the applicable article 8 proportionality test, and whether a DBS certificate or other consequences of barring provided a less intrusive alternative.

1. Appeal dismissed. The decision to retain the appellant on the children’s barred list was proportionate.
2. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may intervene only for a mistake of law or fact. Whether inclusion is appropriate is not itself a question of law or fact. Proportionality, however, is a question of law because article 8 of the European Convention on Human Rights is engaged.
3. The panel applied the four-stage analysis in Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700, as drawn together in KS v Disclosure and Barring Service [2025] UKUT 45 (AAC). Protecting children in regulated activity was sufficiently important, and barring was rationally connected to that objective. No less intrusive measure was proposed. Barring was an all-or-nothing decision and conditions could not be imposed.
4. A standard or enhanced DBS certificate was not an adequate alternative. Some employers might not obtain such a certificate, or might not engage with its contents, and the panel considered the continuing risk unacceptably high.
5. In assessing fair balance, the panel considered the troubling circumstances of the offence, the appellant’s vulnerability and subsequent progress, the absence of sufficient evidence of sustained abstinence from drugs or professional assessment of the causes and risk of reoffending, and concerns about her robustness and susceptibility to undue compliance. Her limited employment opportunities and possible effects on family life were recognised, but were limited and outweighed by the importance of protecting children.
6. The panel gave no weight to post-decision developments. Concerns arising from the barring mechanism in family or personal relationships were matters for those involved and were not legal consequences imposed by section 58.

• Upper Tribunal (Administrative Appeals Chamber): appeal against the Disclosure and Barring Service decision of 22 May 2024 dismissed.