RW v Disclosure And Barring Service

An appeal against a barring decision is limited to mistakes of law or fact on which the decision was based. It is not a full merits appeal, and the Upper Tribunal cannot substitute its assessment of appropriateness merely because it would have reached a different view. The Tribunal may assess new evidence and reach its own factual findings where that evidence materially changes the evidential picture. Evidence must be assessed for its probative value, including the circumstances in which it was obtained, whether questioning was leading, whether the witness was available for testing, and whether the evidence provides genuine corroboration. An admission that some event occurred does not, without more, support disputed allegations or bolster the credibility of another witness. Where material factual mistakes are established and no lawful barring decision is possible on the facts, removal from the barred lists, rather than remission, is appropriate.

RW, a support worker in a residential care home, appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006 against the Disclosure and Barring Service’s decision dated 5 April 2024 to place her on both the Adults’ Barred List and the Children’s Barred List.

The DBS found that RW had shouted at a vulnerable resident, threatened to knock him out, told him to shut up and remain in his room, and pushed him down a hallway. RW accepted raising her voice, asking the resident to go to his room and moving him to pass through a doorway, but denied the more serious allegations. The central issue was whether the DBS’s decision was based on material mistakes of fact.

1. Appeal allowed. The Tribunal directed the DBS to remove RW’s name from both the Adults’ Barred List and the Children’s Barred List.
2. The appeal was confined by section 4 of the Safeguarding Vulnerable Groups Act 2006 to mistakes of law or fact on which the barring decision was based. Appropriateness was not itself a question of law or fact for the purposes of the appeal. The Tribunal therefore could not substitute its own assessment of appropriateness, but could intervene where the DBS’s decision was legally or factually flawed.
3. The Tribunal took the DBS decision as its starting point but did not defer to its factual findings. New evidence, including RW’s oral evidence tested at the hearing, could justify a conclusion that a DBS finding was wrong where it materially altered the evidential picture. The evaluation of evidence was not itself a mistake of fact, but a finding unsupported by the evidence or shown to be wrong by compelling new evidence could be challenged.
4. The evidence relied on by the DBS had limited probative value. AG’s accounts were obtained through leading questions, were inadequately recorded and did not corroborate most of the allegations. SB’s account did not explain how she observed the events, SB was not interviewed or called as a witness, and her delay in reporting the allegations undermined its reliability.
5. The Tribunal accepted RW as an honest and largely reliable witness. Minor inconsistencies were better explained by her learning disability, difficulties with language and the pressure of the disciplinary questioning than by dishonesty. The fact that RW accepted some less serious conduct did not support the allegations she denied and did not bolster SB’s credibility.
6. The Tribunal found that RW had raised her voice to make herself heard, asked AG to go to his room and moved him by placing her hands on his waist or hips. She had not shouted, threatened violence, pointed a finger in his face, told AG to shut up or used significant or sudden force. Her conduct was contrary to training and good practice but did not amount to relevant conduct.
7. Because each material DBS finding was mistaken, there was no basis for inclusion on either list. Although remission would ordinarily be the appropriate disposal, removal was required because no barring decision was possible on the Tribunal’s findings.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal against the DBS decision dated 5 April 2024 and directed removal from both barred lists.
• Disclosure and Barring Service: decided on 5 April 2024 to include RW on the Adults’ Barred List and the Children’s Barred List.