HB v Disclosure and Barring Service

Conduct that harmed children during a mental health crisis may be “relevant conduct” in relation to vulnerable adults if it could be repeated in that setting and the risk does not depend on family relationships or living arrangements. In assessing whether inclusion on a barred list is proportionate, the risk is considered as at the date of the decision. A bar may be proportionate where a real and significant risk could arise in regulated activity, less intrusive measures would not adequately address it, and the risk outweighs the effects on the person concerned.

HB had a history of mental health crises during which her children were harmed or put at risk. The Disclosure and Barring Service (DBS) included her on both barred lists under the Safeguarding Vulnerable Groups Act 2006. She appealed only against her inclusion on the adults’ barred list, arguing that DBS had made factual errors, that her conduct towards her children could not be repeated in relation to a vulnerable adult, and that barring her was disproportionate given her therapy and improving mental health. The central issues were whether the conduct could constitute relevant conduct and whether DBS’s decision involved an error of law or fact.

1. The appeal was dismissed and DBS’s decision to include HB in the adults’ barred list was confirmed. Her inclusion in the children’s barred list was not challenged.

2. The tribunal found no material mistake in DBS’s factual finding that HB was receiving intensive therapy at the time of its decision. The “mistake of fact” ground therefore failed.

3. Under paragraph 10(1)(b) of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006, conduct may be relevant conduct if, when repeated in relation to a vulnerable adult, it would or would be likely to endanger that adult. The tribunal distinguished LJCB v DBS [2025] UKUT 117 (AAC): there, the relevant risk depended on the appellant’s family relationship and living arrangements. HB’s crisis-related conduct could be repeated in relation to a vulnerable adult, and the risk was not confined to that family context.

4. Applying the proportionality issues identified in Bank Mellat v HM Treasury (No 2) [2014] AC 700, the tribunal found a rational connection between barring HB and protecting vulnerable adults because the risk could arise in any context if she experienced a mental health crisis. Family and personal relationship safeguards alone would unacceptably compromise that objective. At the date of DBS’s decision, the risk of a crisis and resulting harm was real and significant. It outweighed the effects of barring, including loss of a role that could benefit HB psychologically and financially, despite her improving mental health and ongoing therapy.

5. The tribunal took account of DBS’s role as primary decision-maker but made its own decision on the appeal. No permitted ground was made out.

• Disclosure and Barring Service: on 19 June 2024, included HB on the adults’ and children’s barred lists. HB appealed only the adults’ list decision.
• Upper Tribunal (Administrative Appeals Chamber): dismissed the statutory appeal and confirmed the adults’ list decision. The children’s list decision was not appealed.