FKF v Disclosure and Barring Service

An appeal against inclusion on a barred list is confined to mistakes of law or fact by the Disclosure and Barring Service. The Upper Tribunal cannot substitute its view on whether barring is appropriate unless such a mistake is established. In assessing factual mistakes, it may consider all the evidence, including oral evidence given at the hearing. It must distinguish factual findings from evaluations of risk, weight and appropriateness. Where the evidence supports the factual findings relied on by the Disclosure and Barring Service, and the resulting barring decision is proportionate, the appeal must be dismissed.

FKF appealed against the Disclosure and Barring Service’s decision of 18 April 2024 to include her on both the adults’ and children’s barred lists under Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. The decision relied on findings made by the Family Court that FKF had inflicted significant injuries on her child and had delayed seeking medical treatment.

Permission to appeal was granted on arguable grounds of mistake of fact and disproportionality. The Upper Tribunal heard oral evidence from FKF and considered the medical, social care, police and Family Court material. The central issues were whether the DBS had made a material mistake of fact and whether the barring decision could stand.

1. Appeal dismissed. The statutory appeal was limited to mistakes of law or fact. The question whether inclusion on a barred list was appropriate was not itself a question of law or fact and was therefore outside the appellate jurisdiction.
2. The Tribunal applied the guidance in Disclosure and Barring Service v AB [2021] EWCA Civ 1575 and PF v Disclosure and Barring Service [2020] UKUT 256 (AAC). The DBS decision was the starting point, but the Tribunal had to consider the evidence as a whole. A factual mistake had to be material to the decision.
3. The Tribunal was entitled to assess FKF’s oral evidence and the documentary evidence. The later authorities, including EB v Disclosure and Barring Service [2023] UKUT 105 (AAC) and DBS v RI [2024] EWCA Civ 95, permitted the Tribunal to make its own findings where oral evidence was given. The restrictive approach in DBS v JHB [2023] EWCA Civ 982 did not prevent that course.
4. There was no material mistake of fact. The Family Court’s findings followed a five-day hearing and were supported by the medical evidence. The evidence before the Tribunal did not undermine the DBS’s reliance on those findings. The police decision to take no further action applied a different test and did not establish that the DBS’s factual findings were mistaken.
5. The DBS was entitled to regard the significant injury to a child, together with the risk of repetition, as relevant to both children and vulnerable adults. The decision was proportionate because it balanced the potential risk against the effect of barring, and FKF remained employed in non-regulated work.

• Upper Tribunal (Administrative Appeals Chamber): appeal against the DBS decision of 18 April 2024 dismissed. Permission to appeal had been granted on 30 September 2024.
• Disclosure and Barring Service: FKF was first placed on the adults’ barred list on 3 March 2023. The decision was replaced on 18 April 2024 by inclusion on both the adults’ and children’s barred lists.