KD v Disclosure and Barring Service

A statutory appeal against a DBS barring decision permits the Upper Tribunal to correct an error of law or a mistake in a finding of fact on which the decision was based; the appropriateness of inclusion remains for DBS. A factual error is material where it underpinned an important justification for barring and it is unsafe to assume the decision would have been the same without it. Adult-directed conduct may remain relevant to a children’s barred list if repetition against or in relation to a child would endanger the child. Where appropriateness remains for DBS to assess and removal is not the only lawful outcome, the matter should be remitted.

DBS included the appellant in the children’s barred list after making three findings: that he sent a sexual video to a 15-year-old volunteer; that he sent unwanted sexualised messages to adult colleagues; and that he used a fake social-media account to exchange explicit material with men. Permission to appeal was limited to the first finding. At the hearing, the appellant denied sending the video and gave oral evidence. The alleged recipient and those to whom he had reported the incident did not give oral evidence. The central issues were whether the first finding was mistaken, whether any mistake was material to DBS’s decision, and whether the Upper Tribunal should direct removal or remit the matter to DBS.

1. Appeal allowed. The appeal jurisdiction under sections 4(2) and 4(3) of the Safeguarding Vulnerable Groups Act 2006 is confined to mistakes of law or fact on which the decision was based. Whether inclusion is appropriate is not itself a question of law or fact for the Tribunal to decide. [5]-[6], [31]
2. The Tribunal considered the accounts reported by the alleged recipient against the appellant’s denial. The recipient and the people to whom he had reported the incident were not called, so the account could not be tested in cross-examination. The appellant was cross-examined and, in the Tribunal’s assessment, was truthful. His evidence that he drew a line at sending sexual material to someone under 18 stood up, despite the other established findings about sexualised communications with adults. On the balance of probabilities, he had not sent the video. The paragraph 7a finding was mistaken. [25]-[28]
3. The mistake was material. The finding underpinned DBS’s concern that the appellant did not distinguish between adults and children, and was an important basis for one of the two main justifications for barring. It was repeatedly relied on in the decision. Given the evidence, it was unsafe to assume that DBS would have reached the same decision on the remaining findings alone. [29]-[31]
4. The Tribunal could either direct removal or remit under section 4(6). Applying the approach in DBS v AB [2021] EWCA Civ 1575 at [72], it remitted because removal was not the only lawful outcome. The remaining findings concerned adults, but adult-directed conduct may still be relevant conduct if repetition against or in relation to a child would endanger the child. The assessment of risk and appropriateness remained for DBS. [32]-[33]
5. DBS must make its new decision on the findings that the appellant did not send the video and did distinguish between those above and below 18 when sending sexualised messages or explicit videos. The appellant must remain on the children’s barred list until DBS makes that decision. [34]-[35]

1. Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal against the DBS decision of 6 July 2025, finding a material mistake of fact and remitting the matter for a new decision. The appellant is to remain on the children’s barred list until then. [2026] UKUT 350 (AAC)
2. Disclosure and Barring Service: Included the appellant in the children’s barred list on 6 July 2025. The Upper Tribunal’s permission to appeal was limited to the finding that he had sent a sexual video to a 15-year-old.