MK v Disclosure and Barring Service (DBS)

On an appeal under section 4(2) of the Safeguarding Vulnerable Groups Act 2006, the appellant must establish a mistake of law or fact in the DBS barring decision. The Upper Tribunal cannot substitute its own assessment merely because it might have evaluated the evidence differently. A further opportunity to provide medical evidence may be relevant to procedural fairness, but the absence of that opportunity does not establish an error where the evidence would not have been supplied or would not have affected the decision. The assessment of risk and the appropriateness of barring remain matters for DBS unless its decision is legally or factually flawed.

MK appealed against DBS decisions dated 8 March 2021 to include her in the children’s and vulnerable adults’ barred lists. The decisions followed incidents in 2016, when MK was 16, involving serious attempts to harm her younger brother during a period of severe mental illness.

MK argued that DBS had acted unfairly by making its decisions without giving her a further opportunity to provide medical evidence about her subsequent recovery and current mental health. The appeal was decided on the papers. The central issue was whether DBS had thereby made an error of law or a mistake of fact within section 4(2) of the Safeguarding Vulnerable Groups Act 2006.

1. Appeal dismissed. DBS had not made an error of law or a mistake of fact within section 4(2) of the Safeguarding Vulnerable Groups Act 2006. The DBS decision of 8 March 2021 was confirmed.
2. The appellant bears the burden of establishing a mistake of law or fact. A mistake of fact means a finding that is wrong. The Upper Tribunal is not entitled to substitute its own assessment of the written evidence simply because it might have reached different factual conclusions, although a finding may be wrong even where some evidence supports it.
3. Under section 4(3), the appropriateness of including a person in a barred list is not itself a question of law or fact appealable under section 4(2). Unless DBS’ decision is legally or factually flawed, the assessment of risk and the appropriateness of barring remain matters for DBS.
4. The grant of permission identified an arguable fairness issue because DBS knew of the appellant’s history of severe mental illness and the limited evidence of her subsequent treatment and recovery. However, the appellant had not produced further medical evidence during the appeal and her submissions explained why she had not done so. The Tribunal therefore found that she could not produce, and could not have produced, evidence showing sufficient improvement to undermine DBS’ findings.
5. Even if DBS had provided a further opportunity to supply medical evidence, no additional evidence would have been provided and DBS would have reached the same decisions. The alleged procedural omission therefore caused no material unfairness and did not amount to an error of law or mistake of fact.

• Upper Tribunal (Administrative Appeals Chamber): appeal against DBS barring decisions dated 8 March 2021 dismissed; the decisions were confirmed.