SA v Disclosure and Barring Service

On a second appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, findings of fact specified by the Upper Tribunal under section 4(7)(a) bind DBS, but do not prevent it from considering additional facts. Issue estoppel also binds the parties on issues decided in the first appeal, while the rule in Henderson v Henderson may bar issues that could and should have been raised then, absent special circumstances. DBS errs in law if it departs from binding findings, and errors of fact must have an evidential basis. If an error is material, the Upper Tribunal must remit the matter unless removal from the barred list is the only lawful outcome.

SA, a former healthcare assistant at a care home, appealed against DBS’s decision of 3 November 2023 to retain him on the adults’ barred list. The decision followed an earlier successful appeal to the Upper Tribunal, which had remitted DBS’s first barring decision and directed it to base its new decision on specified findings about two incidents of intimate care. The first Tribunal found no sexual intent, but found that SA’s manner of providing care was somewhat insensitive or callous and left the adult service users upset and uncomfortable.

SA challenged DBS’s further findings about those incidents and argued that the earlier Tribunal’s findings and the rules of estoppel constrained the new decision. The central issues were the scope of a section 4(7)(a) direction, the application of issue estoppel in a second appeal, and whether DBS made material errors in its findings and assessment.

1. The appeal was allowed. Under section 4(7)(a) of the Safeguarding Vulnerable Groups Act 2006, DBS had to base its new decision on the facts specified by the first Tribunal. “Base” did not mean that those were the only facts DBS could consider. DBS could rely on additional facts, but had to treat as binding all issues of fact and law decided by the first Tribunal.

2. Issue estoppel applied to issues actually decided in the first appeal, whether or not they appeared in the section 4(7)(a) direction. The rule in Henderson v Henderson also barred points that could with reasonable diligence and should, in all the circumstances, have been raised in that appeal. Departure from those rules required special circumstances to avoid injustice. The Tribunal held that the first Tribunal had rejected SA’s account of how he lifted one service user’s leg. SA could not reopen that issue; in any event, the present Tribunal reached the same conclusion on the evidence.

3. DBS made material errors by describing the care to that service user in terms suggesting greater force and insensitivity than the first Tribunal had found. The change in wording was minor on its own, but contributed cumulatively to the material errors. DBS also wrongly inferred that showering the second service user alone contravened the care plan, and that SA had roughly handled that person’s genitals. The evidence did not support those findings. DBS further erred by describing the care to that service user as inappropriate, rather than basing its decision on the first Tribunal’s findings. It was legitimate, however, to describe the first service user as distressed, and DBS had not erred in relying on that finding.

4. The absence of an intention to cause harm did not prevent harm or future-risk concerns from arising. DBS’s inability to impose a partial bar did not remove its duty to assess whether training or supervision could mitigate risk. Its approach to training and supervision was not irrational or disproportionate. Nor was a warning about SA’s conduct towards colleagues irrelevant: although that conduct differed in character, it also involved close personal interaction and a failure to anticipate others’ reactions.

5. The errors were material, but removal from the barred list was not the only lawful outcome. The matter was remitted to DBS for a new decision. SA was to remain on the barred list pending that decision. DBS was directed to base its decision on this Tribunal’s findings, which incorporated and remade the first Tribunal’s findings.

1. Upper Tribunal (Administrative Appeals Chamber): In [2026] UKUT 232 (AAC) , allowed SA’s appeal against DBS’s 3 November 2023 decision and remitted the matter for a new decision.
2. Earlier Upper Tribunal appeal: The first appeal was allowed and the matter remitted to DBS with findings of fact specified under section 4(7)(a). No citation for that decision is stated in the judgment.
3. Disclosure and Barring Service: By its decision of 3 November 2023, DBS retained SA on the adults’ barred list following remittal. The decision reference was P0002XICYWQ.