ZP v Disclosure & Barring Service

Where a person is invited to make representations against proposed barring under paragraph 8 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006, fairness may require DBS to give some indication of why it considers barring appropriate. That will be so where the reason is open to reasonable dispute and the individual could not otherwise make meaningful representations. The requirement is not universal: the notice need not set out provisional reasoning where the basis for barring is obvious. An “autobar with representations” case creates no presumption in favour of barring. DBS must make an evaluative judgment on appropriateness. A notice referring only to “offence information” was insufficient where it did not reveal the concern said to connect the conviction to work with vulnerable adults.

ZP was convicted of causing or allowing the death of her infant son. DBS later invited her to make representations about inclusion in the adults’ barred list, stating that barring was proposed “because of” her offence information. She made representations, but DBS decided that her conviction and history indicated a risk that she might yield to a colleague’s influence and fail to safeguard vulnerable adults.

ZP appealed under section 4 of the Safeguarding Vulnerable Groups Act 2006. She challenged only her inclusion in the adults’ list. The principal issue was whether the notice gave her a fair and effective opportunity to address why barring was considered appropriate. She also challenged DBS’s reliance on the absence of a later relationship in which her resistance to domination could be tested, and other findings concerning her children and progress.

1. Appeal allowed. DBS made a mistake of law in the procedure leading to ZP’s inclusion in the adults’ barred list. The Tribunal did not confirm that decision.
2. Under paragraph 8 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006, the opportunity to make representations must be meaningful. Paragraph 16(1) requires an opportunity to address information on which DBS intends to rely. Where DBS proposes to decide that barring is appropriate, it must have formed a provisional view sufficient to identify the information relevant to that decision. If the basis for appropriateness is reasonably disputable, the notice must give some indication of DBS’s thinking so the person knows what their representations need to address. This does not require an explanation in every case: the reason may be obvious from the prescribed offence and circumstances.
3. The notice here said only that barring was proposed “because of” ZP’s offence information. It did not disclose DBS’s concern that she might be influenced by a person in the workplace and fail to respond to safeguarding risks. Her representations addressed her culpability and recovery from the abusive relationship, but there was no indication she knew of that workplace concern. The process was unfair.
4. The Tribunal rejected the suggestion that an “autobar with representations” creates a presumption in favour of barring. Once representations are made, DBS must evaluate whether barring is appropriate; the Act creates no presumption either for or against it.
5. As an alternative finding, DBS’s inference that ZP remained susceptible to domination because she had not been tested in another relationship was perverse. A healthy relationship would not test resistance to malign influence; the test contemplated would have required another intimate relationship with a malign partner. Grounds concerning the children’s needs, the Freedom programme and coping skills did not establish error in the adults’ barring decision because the Tribunal read those findings as relating to the children’s list.
6. Removal from the adults’ list was not the only possible outcome. The matter was remitted to DBS for a fresh decision. ZP was removed from the adults’ list pending that decision; the Tribunal made no direction that she remain listed.

1. Upper Tribunal (Administrative Appeals Chamber) Allowed ZP’s appeal against the DBS decision concerning the adults’ barred list. The Tribunal remitted the matter for a fresh decision and directed that ZP be removed from that list pending the new decision.
2. Disclosure and Barring Service On 17 January 2023, decided to include ZP in the adults’ barred list and retain her in the children’s barred list. Only the adults’ list decision was appealed.