SAK v Disclosure and Barring Service

An appeal against inclusion in a barred list under the Safeguarding Vulnerable Groups Act 2006 is confined principally to mistakes of law or fact on which the barring decision was based. The Upper Tribunal may consider further evidence and make its own findings of primary fact. A mistake of fact may be an incorrect, incomplete or omitted finding. Where essential factual findings have been omitted, or are unsupported by the evidence, the statutory appeal ground is established. The assessment of appropriateness remains for the Disclosure and Barring Service, subject only to limited review. If mistakes undermine every allegation on which the barring decision depends, the Tribunal may direct removal from the barred list where no other decision is possible on the facts.

The Disclosure and Barring Service placed SAK on the Adults’ Barred List after finding that, during a night shift as a care assistant, she had intentionally slept on duty, failed to complete checks and attend to residents’ continence needs, and failed to turn on a falls sensor.

SAK appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006, alleging mistakes of fact and errors of law. The Upper Tribunal heard her oral evidence and considered additional care-plan records obtained after permission to appeal had been granted. The central issue was whether the DBS’s findings were materially affected by mistakes of fact.

1. Statutory framework. The relevant-conduct gateway under Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 required the DBS to be satisfied that SAK had engaged in regulated activity, engaged in relevant conduct, and that inclusion on the Adults’ Barred List was appropriate. If all three matters were established, inclusion was mandatory. Appropriateness was not a question of law or fact for the purposes of the appeal, save for limited rationality or proportionality review.
2. Approach to evidence. Applying PF v DBS [2020] UKUT 256 (AAC) and RI v DBS [2024] EWCA Civ 95, the Tribunal could consider further evidence, assess the oral and documentary evidence as a whole, and make its own findings of primary fact. A mistake of fact could consist of an incorrect, incomplete or omitted finding.
3. The Tribunal found SAK credible and found that she had completed the relevant checks and personal care, had not fallen asleep, and had been managing a migraine. The contemporaneous care records contradicted the accounts relied on by the DBS and did not support the alleged failures of care.
4. In relation to the falls sensor, the DBS had found that SAK failed to turn it on without making essential findings about whether it was switched off or capable of working. Alternatively, those inferred findings were unsupported. SAK’s admission that she had not double-checked the sensor did not establish the allegation actually found proved.
5. The DBS therefore made mistakes of fact in relation to all three allegations on which the barring decision was based. Applying DBS v AB [2021] EWCA Civ 1575, no decision other than removal was possible on the facts. The appeal was allowed and the Tribunal directed the DBS to remove SAK from the Adults’ Barred List. The error-of-law grounds did not require determination.

• Upper Tribunal (Administrative Appeals Chamber): The appeal from the DBS decision dated 17 October 2023 was allowed. The DBS was directed to remove SAK from the Adults’ Barred List.