SB v The Disclosure and Barring Service

An appeal under Safeguarding Vulnerable Groups Act 2006 section 4 may succeed where the Disclosure and Barring Service relied on a material mistake of fact or law. The Upper Tribunal may make its own findings of primary fact, including after hearing oral evidence. A person must have an opportunity to make representations on all significant information on which the DBS intends to rely, including a material factual finding made in the final decision. Where an error is established, the Tribunal should remit the matter unless removal from the barred list is the only lawful decision available.

The appellant appealed against the DBS decision to include her in the adults’ barred list. Permission was granted on four grounds concerning alleged factual mistakes about whether she requested further money from a vulnerable adult and whether she had continuing financial problems, an alleged disproportionality error, and a failure to give her an opportunity to address a finding that she had probably requested money in 2023.

The Upper Tribunal heard oral evidence and admitted late-produced bank statements. The central issues were whether the DBS had made mistakes of fact or law on which its decision was based and what remedy should follow.

1. Appeal allowed. The Tribunal found that the DBS had made two mistakes of fact. On the balance of probabilities, the appellant had not directly requested money from the vulnerable adult on 11 April 2024. The evidence consisted principally of an indirect report, whereas the appellant had consistently denied making the request. The Tribunal was entitled to assess her oral and written evidence as a whole, consistently with Disclosure and Barring Service v RI [2024] EWCA Civ 95 (paras 39–42).
2. The DBS also erred in finding that the appellant continued to have financial problems. Her bank statements showed low income but no ongoing debt or financial difficulty during the relevant period. Changes in her living and financial circumstances were material (paras 43–44).
3. The DBS made an error of law by finding in its final decision that it was likely that the appellant had requested money in 2023, when that finding differed from the minded-to-bar letter and she had not been given an opportunity to comment on it. The DBS must allow representations on significant findings on which it relies. The Tribunal applied the principle in Khakh v Independent Safeguarding Authority [2013] EWCA Civ 1341 (paras 45–46).
4. The Tribunal made no determination on proportionality. The DBS had assessed proportionality on materially mistaken facts, and the question had to be reconsidered.
5. Under section 4(6) of the Act, removal may be directed only where it is the only decision the DBS could lawfully reach. Otherwise, the matter should be remitted for a new decision. Applying Disclosure and Barring Service v AB [2021] EWCA Civ 1575, the case was remitted to the DBS (paras 47–51).

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed on grounds of mistake of fact and mistake of law; matter remitted to the DBS for a new decision.
• Disclosure and Barring Service: decision dated 15 August 2024 included the appellant in the adults’ barred list.