CAL v The Disclosure and Barring Service

On an appeal against a barring decision, the Upper Tribunal may assess oral and written evidence together and make its own findings of primary fact. It may find a mistake of fact where it accepts an appellant’s evidence on the balance of probabilities; the evidence need not introduce a wholly new fact.

Where a mistake of law or fact is established, the Tribunal should direct removal from the barred list if that is the only decision the Disclosure and Barring Service could lawfully reach on the facts found. Otherwise, the matter may be remitted. These powers arise under sections 4 and 4(6) of the Safeguarding Vulnerable Groups Act 2006.

CAL, a former health care support worker, appealed against a decision by the Disclosure and Barring Service (DBS) to include her in the adults’ barred list. The DBS relied on four findings that she had taken money from patients while working at a hospital.

The appeal was permitted on the ground that the DBS had made mistakes of fact. The central issues were whether the Tribunal could accept CAL’s evidence and make its own findings, whether the DBS’s findings were mistaken, and whether the Tribunal should direct removal or remit the case to the DBS.

1. Appeal allowed. The Tribunal found mistakes of fact in all four findings that CAL had taken money from patients. It considered the oral and written evidence together and made its own findings of primary fact, applying the approach set out in DBS v RI [2024] EWCA Civ 95.
2. For the £20 allegation, there was evidence giving rise to suspicion, including that CAL had been seen looking in the patient’s purse. But the patient could have put the money through the window, and the staff who had direct knowledge of the patient’s condition supported that possibility. The Tribunal found insufficient evidence that CAL had taken it.
3. For the £25 allegation, the Tribunal accepted that CAL and another health care assistant had found the money and secured it with a nurse. The accepted evidence was that CAL could not access it. For the £140 allegation, there was no direct evidence of theft beyond the fact that CAL had provided personal care and the DBS’s reliance on a pattern of behaviour. The Tribunal accepted her denial. For the £380 allegation, it accepted that CAL had no access to the money once it was locked away; the possibility that others had access did not establish that CAL took it.
4. Under section 4(6) of the Safeguarding Vulnerable Groups Act 2006, the Tribunal may remit the matter or direct removal. Disclosure and Barring Service v AB [2021] EWCA Civ 1575 establishes that removal may be directed where it is the only decision the DBS could lawfully reach on the facts found. As the Tribunal found mistakes in all the findings relied on and removal was the only lawful decision, it directed the DBS to remove CAL from the adults’ barred list.

1. Upper Tribunal (Administrative Appeals Chamber) Permission to appeal was granted on 19 December 2025. After an oral hearing, the Tribunal allowed the appeal and directed removal from the adults’ barred list.
2. Disclosure and Barring Service Its final decision dated 14 April 2025 included CAL in the adults’ barred list.