LC v The Disclosure and Barring Service

An appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006 is confined to material errors of law or fact; the Upper Tribunal cannot substitute its view on whether barring is appropriate. That assessment may be challenged only for irrationality, disproportionality or other unlawfulness, with due weight to the DBS’s safeguarding expertise. A factual mistake warrants relief only if it materially contributed to the barring decision. For the adults’ list, conduct towards a child may qualify where, if repeated in relation to an adult, it would endanger that adult. The DBS need not predict repetition of the same physical act or professional role, but must explain its concern. Mental ill-health is relevant to future risk assessment, not an aggravating feature merely because it is ill-health. Proportionality is assessed under the four-stage test in Bank Mellat [2013] UKSC 39.

LC, an experienced nurse, appealed against the Disclosure and Barring Service’s decision to place her on the children’s and adults’ barred lists. The decision followed incidents on two night shifts at a children’s mental health unit in which LC locked a vulnerable child in her room and failed to follow the employer’s seclusion safeguards. The Nursing and Midwifery Council had made findings about the same conduct in fitness-to-practise proceedings.

LC disputed several factual findings and challenged the DBS’s assessment that her conduct was relevant to vulnerable adults, its treatment of her mental health, its consideration of the NMC findings and her insight, and the proportionality of barring. She appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006 from the DBS decision of 24 June 2025. The central question was whether the DBS had made a material mistake of fact or law.

1. The appeal was dismissed and the DBS’s barring decision confirmed. Section 4 of the Safeguarding Vulnerable Groups Act 2006 does not provide a full merits appeal. The Upper Tribunal could not substitute its own view on whether barring was appropriate. That judgment could be challenged only as irrational, disproportionate or otherwise unlawful, and the DBS’s safeguarding expertise was to be given appropriate weight. If a material error had been established, the statutory options would have been removal from the list or remission to the DBS; remission would usually be appropriate unless removal was the only possible decision.
2. In reviewing facts, the Tribunal took the DBS decision as its starting point but did not defer to its findings. The weight due to those findings depended on all the circumstances. Where no new evidence was produced, an evaluation of evidence was not itself a mistake of fact: intervention required no supporting evidence or irrationality. Fresh evidence could permit the Tribunal to find a DBS finding wrong. Any mistake had to make a material contribution to the overall decision. The finding that all relevant witnesses had been interviewed was mistaken, and the finding about delayed reporting of a medication concern might also have been mistaken. Neither error was material given LC’s admissions to the core safeguarding failures.
3. For the adults’ list, paragraph 10(1)(b) of Schedule 3 to the Act includes conduct which, if repeated against or in relation to a vulnerable adult, would endanger or be likely to endanger that adult. The DBS adequately explained why LC’s response to challenging behaviour and disregard of safeguarding procedures raised a risk in other regulated activity. Its concern did not depend on LC continuing to work as a nurse or repeating the precise act of locking a patient in a room.
4. The DBS was required to consider LC’s mental health when assessing future risk. It had not treated her illness as an aggravating feature. The Tribunal also found no error in the DBS’s treatment of supervision, its independent risk assessment after considering the NMC findings, or its assessment of LC’s insight and remediation. The DBS had to give adequate reasons and act fairly, but was not required to address every potential issue.
5. The Tribunal applied the four-stage proportionality test in Bank Mellat [2013] UKSC 39, as explained in KS v DBS [2025] UKUT 045. Protecting children and vulnerable adults was sufficiently important; barring was rationally connected to that aim; the statutory scheme offered no less intrusive conditional or time-limited option; and the interference with LC’s rights was not disproportionate to the likely benefit. The serious harm caused and assessed risk of repetition supported that conclusion.

• Upper Tribunal (Administrative Appeals Chamber): dismissed LC’s appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006 and confirmed the DBS decision dated 24 June 2025 to place her on both barred lists.
• Disclosure and Barring Service: decided on 24 June 2025 to include LC on the children’s and adults’ barred lists.