DCA v Disclosure and Barring Service

A statutory appeal against a barring decision may succeed only for a mistake of law or a material mistake of fact. Although the appropriateness of listing is not itself a question of law or fact, that restriction does not prevent a proportionality or rationality challenge. The Upper Tribunal assesses proportionality itself by reference to the circumstances when the barring decision was made.

When reviewing an alleged factual mistake, the Tribunal considers all the evidence before it, including new evidence, and makes its own findings. If it finds no mistake of law or fact, it must confirm the Disclosure and Barring Service’s decision.

DCA was a hospital security officer and student nurse. After an incident in which a 17-year-old inpatient was injured, the Disclosure and Barring Service (DBS) placed DCA on both barred lists under the Safeguarding Vulnerable Groups Act 2006. DCA had been acquitted of a charge of assault by beating.

DCA appealed to the Upper Tribunal, arguing that the DBS had misinterpreted body-worn camera footage and that inclusion on both lists was disproportionate. The appeal raised whether the DBS had made a mistake of fact or law on which its decision was based.

1. Appeal and scope of review. The appeal was dismissed and the DBS’s decision confirmed. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, an appeal lies for a mistake of law or a material mistake of fact. Whether inclusion on a barred list is appropriate is not itself a question of law or fact. That restriction does not prevent an argument based on proportionality or rationality: B v Independent Safeguarding Authority (Royal College of Nursing Intervening) [2012] EWCA Civ 977.
2. Factual mistake. The Tribunal considered all the evidence and made its own findings, consistently with PF v Disclosure and Barring Service [2020] UKUT 256 (AAC). It gave greater weight to the contemporaneous accounts and DCA’s police interview, in which DCA acknowledged hitting or pushing the patient, than to DCA’s later denial. The footage showed the patient seated and did not corroborate DCA’s account of keeping distance or approaching to de-escalate. Although it did not itself show the hand making contact, the footage, witness evidence and police interview supported the finding that DCA struck the patient and caused harm. The DBS had made no mistake of fact.
3. Proportionality. The Tribunal set out the four-stage proportionality approach summarised in KS v DBS [2025] UKUT 045. The Tribunal had to assess proportionality itself by reference to circumstances at the time of the DBS decision. Given its finding that DCA had harmed a child, had shown no insight into the conduct, and had taken no steps to address it, the DBS was entitled to assess the risk of recurrence as significant. The Tribunal concluded that proportionality was not a valid ground of appeal and that there was no material error of law.
4. Statutory consequence. Having found no mistake of law or fact on which the decision was based, the Tribunal confirmed the DBS decision under section 4(5) of the Safeguarding Vulnerable Groups Act 2006.

1. Upper Tribunal (Administrative Appeals Chamber) — dismissed DCA’s appeal and confirmed the DBS decision: [2026] UKUT 252 (AAC) .
2. Disclosure and Barring Service — on 23 August 2024, placed DCA on the adults’ and children’s barred lists.