JG v Disclosure and Barring Service

An appeal against a barring decision is confined to mistakes of law and mistakes in findings of fact on which the decision was based. The question whether inclusion on a barred list is appropriate is not itself appealable as a question of law or fact, although proportionality may be reviewed.

The Upper Tribunal may hear oral evidence and assess it against the evidence before the Disclosure and Barring Service. A mistake of fact may concern a primary fact, an inference, an incomplete finding or an omission, and may emerge from further evidence. The relevant circumstances are those existing when the barring decision was made.

The Disclosure and Barring Service referred JG for barring after allegations concerning her treatment of vulnerable residents at a care home. On 27 April 2023, it found four allegations proved, decided that they amounted to relevant conduct, and placed JG on the Adults’ and Children’s Barred Lists.

JG obtained permission to appeal on grounds including alleged mistakes of fact, an alleged error concerning evidence from a colleague, disproportionality, and findings about insight, remorse and risk. After hearing JG’s oral evidence and considering additional documentary evidence, the Upper Tribunal had to determine whether the DBS had made a material mistake of fact or law.

1. Appeal refused. The Upper Tribunal confirmed the DBS’s decision under section 4(5) of the Safeguarding Vulnerable Groups Act 2006.
2. The relevant-conduct gateway required the DBS to be satisfied that JG was, had been or might be engaged in regulated activity; that she had engaged in relevant conduct; and that it was appropriate to include her on the Adults’ Barred List. Where those matters were established, inclusion was required by Schedule 3.
3. The statutory appeal was limited to a mistake of law or a mistake in a finding of fact on which the barring decision was based. Appropriateness was not a question of law or fact for the Upper Tribunal, although proportionality could be considered. The Tribunal applied KS v DBS [2025] UKUT 045 (AAC) on that issue.
4. The Tribunal was entitled to hear JG’s oral evidence and assess its credibility against the documentary evidence, applying the principles in DBS v RI [2024] EWCA Civ 95. A mistake of fact could concern a primary fact, an inference, an incorrect or incomplete finding, or an omission, and could be demonstrated by further evidence, consistently with PF v DBS [2020] UKUT 256 (AAC).
5. On the evidence, the Tribunal found that the DBS had not made a material mistake of fact in relation to the four allegations. JG’s evidence was accepted in part, but the contemporaneous statements and investigation records were generally more reliable. The evidence supported the findings concerning BB, WM, LW and MC.
6. The DBS had not made a material error of law by taking limited account of the evidence attributed to RA. It had not treated RA as direct evidence that JG pushed BB, and had made no finding based on that alleged admission. The disproportionality, insight, remorse and previous-warning grounds likewise disclosed no material mistake.
7. The circumstances had to be assessed as at the date of the DBS decision. No material mistake of fact or law having been established, the statutory obligation was to confirm the barring decision.

• Upper Tribunal (Administrative Appeals Chamber) — The appeal against the DBS decision of 27 April 2023 was refused. The DBS decision was confirmed.
• Disclosure and Barring Service — On 27 April 2023, the DBS placed JG on the Adults’ and Children’s Barred Lists after finding relevant conduct proved.