OJO v Disclosure and Barring Service

Before automatic inclusion in a barred list, the Disclosure and Barring Service must give the person a real opportunity to make representations. Posting the notice may create a rebuttable presumption of receipt, but credible evidence can rebut it. If the notice was not received, the statutory conditions for automatic inclusion are not satisfied and inclusion is an error of law. The later availability of information suggesting that barring might still have been appropriate does not cure the procedural defect. Where the only lawful decision on the facts existing at the date of the decision is removal from the list, the Upper Tribunal must direct removal under section 4(6) of the Safeguarding Vulnerable Groups Act 2006.

The appellant appealed against the DBS’s decision dated 30 September 2024 to include her in both the children’s and adults’ barred lists. The decision followed her caution for an offence under section 1 of the Children and Young Persons Act 1933. The DBS had posted a notice of intended barring, but the appellant maintained that she had not received it and therefore had no opportunity to make representations.

The Upper Tribunal considered whether the notice had been received, the effect of any failure to provide the statutory opportunity to make representations, and whether the court could direct removal rather than remit the matter to the DBS.

1. The appeal was allowed. The appellant had not received the notice of intended barring and therefore had not had the opportunity required by paragraphs 2(4) and 8(4) of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.

2. Regulation 2(4) of the Safeguarding Vulnerable Groups Act 2006 (Barring Procedure) Regulations 2008 creates a rebuttable presumption that a notice sent by post is received 48 hours after posting. The DBS had posted the notice to the correct address, but the appellant’s credible evidence rebutted the presumption. Her failure to seek assistance or respond to the notice contrasted with her conduct after receiving the later barring decision.

3. Although the offence and regulated-activity criteria were satisfied, the DBS could not rely on the automatic-barring provisions in paragraphs 2(6) and 8(6). Those provisions applied only where the statutory opportunity to make representations had been given and not used. The possibility that the appellant’s representations would ultimately have made no difference did not cure the failure. The opportunity was an important part of the statutory scheme and procedural fairness, consistent with the approach in R (on the application of Bourgass and another) v Secretary of State for Justice [2015] UKSC 54.

4. The Upper Tribunal had found a mistake of law within section 4(2)(a) of the Safeguarding Vulnerable Groups Act 2006. Applying section 4(6), and the interpretation in Disclosure and Barring Service v AB [2021] EWCA Civ 1575, removal was required because not including the appellant was the only decision the DBS could lawfully make on the facts existing when it decided to bar her.

The DBS was directed to remove the appellant from both lists.

• Upper Tribunal (Administrative Appeals Chamber): appeal against the DBS decision dated 30 September 2024. Permission to appeal was granted on 18 January 2025. The appeal was allowed and removal from both barred lists was directed.