BFJ v The Disclosure and Barring Service

On an appeal alleging a factual error in a barred-list decision, the Upper Tribunal may assess relevant oral and written evidence together and make its own primary findings of fact. It decides whether the alleged conduct occurred on the balance of probabilities; an honestly held allegation does not, by itself, establish that it did. If the Tribunal finds the conduct did not occur, the DBS decision based on that finding contains a mistake of fact. Where removal is the only decision the DBS could lawfully reach on the facts found, the Tribunal may direct removal from the list.

BFJ, a care assistant, appealed the DBS decision to include her on the adults’ barred list after a couple alleged that she had stolen £20 from the wife’s purse during a care visit. The DBS accepted the couple’s account and found the allegation proved. BFJ consistently denied taking the money and gave oral evidence to the Upper Tribunal. The couple and the care company did not give evidence at the hearing; BFJ also relied on two character references.

The appeal challenged the factual finding under section 4 of the Safeguarding Vulnerable Groups Act 2006. The central issue was whether the DBS had made a mistake of fact in finding the allegation proved.

Appeal allowed. The Upper Tribunal found that the DBS had made a mistake of fact and directed that BFJ be removed from the adults’ barred list.

1. Section 4 of the Safeguarding Vulnerable Groups Act 2006 permits an appeal on a mistake of law or a finding of fact on which the DBS decision was based. Following DBS v RI [2024] EWCA Civ 95, the Tribunal could consider the oral and written evidence as a whole and make its own primary findings where relevant oral evidence was given. BFJ did not have to produce a new fact before the Tribunal could accept her account.
2. On the balance of probabilities, the Tribunal found that BFJ had not taken the money. The couple honestly believed that she had done so, but the evidence left material gaps: another carer had visited that morning, other carers had attended the previous day, and the timing and location of the purse and the money were not established. BFJ was not seen taking the money, no search recovered it, and the care company had made little investigation. The Tribunal found BFJ’s consistent oral evidence compelling and considered that her character references supported her credibility.
3. The Tribunal therefore found a mistake of fact and allowed the appeal. It did not decide whether the DBS had made a separate error of law or determine the alternative proportionality issue. Section 4(3) provides that the appropriateness of inclusion is not itself a question of law or fact. Applying section 4(6) and Disclosure and Barring Service v AB [2021] EWCA Civ 1575, the Tribunal directed removal from the list.

1. Upper Tribunal (Administrative Appeals Chamber) — allowed BFJ’s appeal against the DBS decision and directed her removal from the adults’ barred list.
2. Disclosure and Barring Service — decided on 25 April 2025 to include BFJ on the adults’ barred list, based on the alleged theft.