JH v The Disclosure and Barring Service

An appeal against a decision to include a person on a barred list is confined to errors of law or fact. A factual mistake must be assessed against the substance of the DBS decision as a whole. It is immaterial if other established conduct independently satisfies the statutory test for inclusion. Proportionality requires consideration of the importance of protecting vulnerable adults, the connection between inclusion and that objective, less intrusive measures, and the overall balance. Failure to repay a vulnerable adult and to report the transfer to management may sustain inclusion even where an allegation of manipulation is not proved.

The Disclosure and Barring Service included JH, a care worker, on the adults’ barred list after finding that he had abused his position of trust by manipulating SR, a vulnerable adult, into transferring him £300. JH accepted receiving the money but disputed manipulation and challenged the proportionality of inclusion. He appealed from the DBS decision communicated on 22 May 2024. The Upper Tribunal heard JH’s evidence, rejected the manipulation finding, and considered whether that factual mistake affected the decision as a whole and whether inclusion was disproportionate.

1. Appeal dismissed. The Upper Tribunal found no material mistake of fact or law by the DBS.
2. The statutory scheme required relevant conduct and engagement, present or potential, in regulated activity with vulnerable adults. The Tribunal could consider JH’s oral evidence and make findings on the alleged factual mistake. It found that SR transferred the money voluntarily, so the finding of manipulation was wrong.
3. The appeal concerned the DBS decision as a whole, rather than an isolated paragraph in its decision letter. The Tribunal applied XY v The Independent Safeguarding Authority [2011] UKUT 289 (AAC) in assessing the substance of that decision. The mistake was immaterial: JH did not tell the care company about the deposit, did not repay the money when he said he would, and gave no explanation for failing to repay it after funds became available. Those facts constituted relevant conduct and caused SR emotional and financial distress.
4. There was no mistake of law in finding inclusion proportionate. Applying the proportionality test in Bank Mellat [2013] UKSC 39, as explained in KS v DBS [2025] UKUT 045, the Tribunal found the protection of vulnerable adults sufficiently important, inclusion rationally connected to that aim, and no less intrusive measure available. Inclusion was protective rather than punitive. The failure to repay and report the transfer justified inclusion; the Tribunal considered it would have been disproportionate had JH done both.

• Disclosure and Barring Service included JH on the adults’ barred list by a decision communicated on 22 May 2024.
• Upper Tribunal (Administrative Appeals Chamber) refused the appeal and dismissed it, finding no material mistake of fact or law.