CC v The Disclosure and Barring Service

An appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006 is confined to material mistakes of law or fact in the DBS decision. It is not a full merits appeal. The Upper Tribunal may assess factual findings, particularly where it hears new evidence, but it must not substitute its own evaluation of appropriateness for that of the DBS. Appropriateness may be challenged only on recognised public-law grounds, including irrationality, disproportionality or other unlawfulness. The decision must be read fairly and as a whole. Where no material mistake is established, the Tribunal must confirm the barring decision.

CC, a physiotherapist, appealed against the DBS’s decision of 10 December 2024 to retain her on the Children’s and Adults’ Barred Lists. The decision followed complaints by three adult patients alleging sexually inappropriate touching and other breaches of professional boundaries during physiotherapy appointments.

CC denied the allegations. She had been acquitted of the allegation involving one complainant in criminal proceedings, and the DBS had relied principally on documentary material from the employer’s investigation. The Upper Tribunal heard CC’s oral evidence and considered the evidence before the DBS together with new evidence on appeal. The central issue was whether the Final Review Decision contained a material mistake of fact or law.

1. Outcome. The appeal was dismissed. The DBS’s Final Review Decision was confirmed. The Tribunal found no material mistake of fact or law.
2. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Tribunal’s jurisdiction is limited. The appeal is not a full merits appeal and does not permit substitution of the Tribunal’s view on whether barring is appropriate. The Tribunal may intervene where the DBS made a material mistake of fact or law. Appropriateness is not itself a question of law or fact and may be challenged only on public-law grounds such as irrationality, disproportionality or other unlawfulness.
3. The DBS decision must be read fairly and as a whole, including the Final Decision Letter and, where relevant, the Barring Decision Summary. The DBS is not a court and need provide sufficient reasons, rather than address every potential issue. It must nevertheless act procedurally fairly.
4. On factual mistakes, the DBS decision is the starting point, but the Tribunal does not defer to the DBS on factual matters. If no new evidence is produced, an evaluative disagreement is not enough: the Tribunal must identify an absence of evidence or irrationality. Where new evidence is heard, the Tribunal may conclude that a DBS finding was wrong. Any mistake must materially contribute to the overall barring decision.
5. The Tribunal considered CC’s oral evidence, the documentary accounts and the acquittal. The acquittal carried little weight because the criminal standard of proof differed from the balance-of-probabilities standard. The three similar complaints corroborated one another, and the Tribunal found it inherently improbable that the complainants had conspired to fabricate them. It preferred their evidence to CC’s denials and found the Allegations truthful.
6. Because no material factual or legal mistake was established, the statutory duty to confirm the DBS decision applied. If a material mistake had been found, the usual course would have been remission to the DBS unless removal from the list was the only possible decision.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and confirmed the DBS’s decision of 10 December 2024.
• Disclosure and Barring Service: following its paragraph 18A review, decided on 10 December 2024 to retain CC’s name on both Barred Lists.