B v Disclosure and Barring Service

An appeal against inclusion in a barred list lies on the ground that the Disclosure and Barring Service made a mistake of law or fact on which its decision was based. The Upper Tribunal may assess the evidence afresh, including the credibility of a witness whose oral evidence was unavailable to the Service. Where the Service’s decision rests materially on an unreliable factual finding, the Tribunal must either remit the matter or direct removal. Remittal is appropriate where the question of appropriateness remains open. Removal should be directed where the corrected facts mean that removal is the only decision lawfully available.

The Disclosure and Barring Service included Mrs B in the children’s barred list after finding that she had discussed children in her care with her then-husband while he obtained sexual gratification, and had failed to report his conduct. Mrs B appealed under section 4 of the statutory scheme, alleging mistakes of fact. She denied that the alleged conversation had taken place and gave oral evidence to the Upper Tribunal. The central issue was whether the Service had made a material factual mistake in finding that the conversation occurred and, if so, whether the matter should be remitted or removal directed.

1. Appeal allowed. The Upper Tribunal directed Mrs B’s removal from the children’s barred list.
2. The statutory right of appeal permitted the Tribunal to intervene where the Service had made a mistake on any point of law or in any finding of fact on which its decision was based. The appropriateness of inclusion itself was not a question of law or fact for the purposes of the appeal.
3. The decisive issue was whether the alleged bedroom conversation had occurred. Mrs B was the only witness with first-hand knowledge and denied that it had taken place. The other evidence consisted of written accounts and opinions from persons who had not witnessed the conversation and were not available for questioning.
4. The Tribunal found Mrs B credible. The circumstances in which she had assented to the account put to her by PE made that conversation an unreliable basis for determining what had actually happened. The Tribunal attached little or no weight to the views of PE, the head teacher and the school investigator on Mrs B’s credibility. It concluded that the Service had made a material factual mistake by finding that the conversation had occurred.
5. Applying DBS v AB [2021] EWCA Civ 1575, the ordinary course after a material mistake is remittal where the question of appropriateness remains open. Here, because the bedroom conversation had never occurred, removal was the only decision lawfully available. Remittal was therefore unnecessary.

• Disclosure and Barring Service: On 23 December 2024, Mrs B was included in the children’s barred list under paragraph 3 of Schedule 3.
• Upper Tribunal (Administrative Appeals Chamber): Permission to appeal was granted on 24 July 2025. The appeal was allowed and the Tribunal directed Mrs B’s removal from the list.