JO v Disclosure and Barring Service

The Appellant appeals the decision of 29 October 2021 of the Respondent (the Disclosure and Barring Service or ‘DBS’) to include her name in the Adults’ Barred List (“ABL”) pursuant to paragraph 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (“the Act”).

Permission to appeal was granted by the Upper Tribunal Judge on the papers on 16 June 2022 in respect of all grounds raised by the Appellant in her notice of appeal.

We held an oral hearing of the appeal in Field House, London on 11 May 2023. The Appellant did not attend and was not represented. The Respondent DBS was represented by Mr Serr of counsel. We are grateful to him for his submissions.

We were satisfied that the hearing should proceed in the Appellant’s absence for the purposes of Rule 38. She had been notified of the time, date and location of the hearing in writing and was clearly aware of it.

The Appellant had indicated on 9 May 2023 (within the 14 day time period set in the Tribunal’s Unless Order / directions of April 2023) that she did not intend to attend the hearing because she would be at work.  She did not apply for an adjournment or postponement of the hearing or for the case to be heard on another occasion.

On 10 May 2023, the day before the hearing, the Tribunal issued directions in these terms:

If the Appellant would prefer to attend or participate in the hearing by internet video software (CVP) or by telephone she should email the Tribunal by 3.30pm today (10 May 2023) and it will inform the parties by 4.30pm of the form the hearing is to take.

The Appellant did not respond to these directions. Further, the clerk to the Tribunal telephoned the Appellant on the morning of the hearing but was not able to contact her.

The Tribunal was satisfied it was just and fair to proceed with the hearing in the Appellant’s absence – in accordance with the overriding objective and in the interests of justice. It was clear that the Applicant did not seek an adjournment of the hearing so that there was no purpose in holding any further hearing as it would not secure her attendance. The Tribunal had before it all the relevant submissions, correspondence and representations made by the Appellant to the DBS and to the Tribunal in respect of the appeal and took these into account on her behalf when deciding the appeal.

At the outset of the hearing we made an order that there was to be no publication of any matter likely to lead members of the public directly or indirectly to identify the Appellant or any person who had been involved in the circumstances giving rise to this appeal (witnesses or complainants) pursuant to rule 14(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008. We were satisfied that the Appellant, should not be identified, directly by name or indirectly, in this decision but referred to as ‘JO’ (or ‘the Appellant).

We also made an order under rule 14(1)(a) that no documents or information should be disclosed in relation to these proceedings that would tend to identify the Appellant or any person who had been involved in the circumstances giving rise to this appeal. Any documents sought to be disclosed would need to be redacted for identifying information.

We made a further order under rule 14(1)(b) and (2) prohibiting the publication or disclosure of any information or document which may lead members of the public to identify any of the individuals (witnesses and complainants) listed in the Respondent’s letter application and the Applicant herself. Identifying the Applicant herself may also lead to the identification of any complainants or witnesses. The individuals listed in the Respondent’s application are to be referred to in the manner set out therein.

Identifying the Appellant herself may also lead to the identification of any complainants or witnesses. Further, the Appellant is the subject of sensitive misconduct allegations which took place in residential care home. We are satisfied that identifying her at this stage may lead to serious and disproportionate harm to her reputation and employment prospects (an interference with the right to private life under article 8 of the ECHR) when the barring decision of the Respondent is not published generally to the world.

There is an expectation and legal prohibition that the name and identity of the Appellant as appearing on a barred list (and whomever is included on the barred lists) is not publicised to the world or generally (it is known by the Appellant, the DBS, and any other party who may seek to conduct a DBS check upon him eg. a prospective or current employer). We also rely on the further reasons explained in R (SXM) v Disclosure and Barring Service [2020] EWHC 624 (Admin), [2020] 1 WLR 3259.  In that case the victim wanted to know the outcome of the referral to DBS. The Administrative Court held: (a) disclosure was not consistent with the statutory structure; (b) refusing to disclose was neither unreasonable nor disproportionate; and (c) there was no positive obligation to disclose under the Article 8 Convention right. The public interest in the protection and safeguarding of vulnerable groups is sufficiently protected by the barring decision itself and identification of the Appellant’s name only to prospective employers or those otherwise entitled to obtain information regarding her from the DBS.

Identifying the Appellant may lead to the identification of all the parties / individuals / witnesses who are to be anonymised / not identified by virtue of the other orders being made and who may otherwise be identified or linked to the Appellant by virtue of the evidence of the case. Having regard to the interests of justice, we were satisfied that it was proportionate to give such directions. This is for the reason that revealing the identity of any of the witnesses or complainants to the public would be likely to cause the complainants and the witnesses (residents or carers in a care home) emotional or psychological harm as they themselves were vulnerable, the potential victims of harmful conduct, or they had an expectation of privacy. The Appellant has not been prejudiced by anonymising the witnesses – she has been aware of their identities throughout and has been able to identify them to answer their evidence and allegations.

We therefore make an order prohibiting the disclosure of any information that would be likely to identify the Appellant, complainants or witnesses.

On 29 October 2021 the DBS made a decision to include the Appellant on the ABL which it communicated in its Final Decision Letter.

The letter stated the DBS was satisfied of the following two findings of relevant conduct against JO (which were made on the balance or probabilities):

The letter gave reasons for the findings:

The letter addressed the proportionality of the barring decision in the following manner:

In her Grounds of Appeal (his “Reasons for Appealing” document) enclosed with her notice of appeal dated 1 December 2021, the Appellant provided grounds of appeal drafted by her solicitors (who no longer represent her).

There were three grounds alleging mistake of fact and three grounds alleging mistake of law in the barring decision:

The Appellant also made general representations as to the mistake of fact in both findings made by the DBS as follows:

The Appellant’s solicitor made submissions as to errors of law in the following terms:

The DBS relied on written evidence from six witnesses contained in their bundle of evidence. This was the evidence relied upon in making the barring decision and in defending the appeal. The relevant evidence is referred to in the DBS submission below and we make findings of fact based upon it in the discussion section.

The Appellant provided a detailed 14-page witness statement dated 30 September 2021 (p. 89-101) signed with a statement of truth. She also relied on all the testimonials and character evidence she had supplied to DBS which were contained in the hearing bundle. Again, we make findings of fact in relation to this evidence in the discussion section below.

The relevant statutory provisions and authorities are set out in the Appendix to this decision. The most relevant part to reproduce within the body of the decision is our approach to considering mistakes of fact.

The extent of the jurisdiction for the Upper Tribunal to determine mistakes of fact by the DBS and make its own findings of fact was outlined in PF v Disclosure and Barring Service [2020] UKUT 256 (AAC) at [51]:

Mr Serr made the following submissions on behalf of the DBS opposing the appeal.

He acknowledged that the Appellant worked in regulated activity as a care leader at the relevant residential care home which was the employer.

He relied on the fact that initial concerns were raised by staff and residents (p.69 of the bundle) which led to an investigation and JO being suspended on 2/10/20 (p.70), interviewed on 7/10/20 and resigning on 9/10/20. She was invited to make representations about a DBS referral on 26/10/20 but seemingly declined to do so (p.81). She did not bring a claim to the employment tribunal for unfair dismissal. Accordingly, there is no finding by the employer (other than a case to answer) and no findings by a Tribunal.

He argued that in the circumstances an analysis of the evidence the employer had is essential and referred to the pages of evidence within the hearing bundle and the relevant statements from a total of six individuals: the four complainant colleagues and two residents, who were relied on as witnesses by the DBS in making its findings of relevant conduct.

Carer reported that JO had been on “the shout”- p.45.

JO suggested residents feigned illness - p.46.

JO shouted at a dementia patient to return to her room which distressed her - p.46/47.

JO told a resident not to take a call from a relative in Canada which upset her - p.47.

JO is behind some of the bullying and some residents dread when she is on duty - p.

Resident did not want to remain at the home due to JO-p.52.

JO is disliked by staff and residents-p.58.

JO refuses to let a resident have sandwiches causing him to secrete them-p.59.

JO refusing food and drink for end of life residents-p.59.

JO telling residents to shut up or go to their rooms-p.59.

JO taking away residents’ choices, dictating bed time, turning off music-p.60.

Been told to be quiet while JO watches TV-p.61.

JO told her to shut up and not take phone call from son during tea time -p.61.

JO told another resident to shut up-p.61.

JO makes her feel cautious.

Feels JO is in charge of whole building, intimidating and scary - p.65.

JO was aggressive when reported - p.65.

JO rude to her and raises her voice- p.65.

JO will watch TV while working-p.65.

Thinks JO should not be working at the home - p66.

Mr Serr submitted that JO did attend an interview on 7/10/20 and her answers were unilluminating:

The allegation about resident T hiding sandwiches was just denied-p.77.

Mr Serr contended that an analysis of the evidence shows that both residents and co-workers independently raised matters of similar concern about JO leading to an investigation in October 2020. The evidence produced from that investigation demonstrates that JO had a controlling bullying manner. JO could be shouting and aggressive to vulnerable residents, wrongly refused certain resident’s foods which they preferred, threatened residents causing them to fear the loss of their accommodation and refused nutrition to end of life patients.

He relied on the fact that the employer and residential home concluded there was a case to answer for a disciplinary hearing (p.72-73). He submitted that the DBS noted how similar allegations appear from different witnesses (both residents and staff) corroborating each other. JO attended an investigation meeting providing no real cogent explanations.

He relied on the fact the Appellant resigned prior to attending a disciplinary hearing, failed to attend a meeting post resignation to make representations following notification that she was to be referred to the DBS (p.81) and did not bring a claim to the Employment Tribunal.

He argued that there is no reason why different complainants would collectively fabricate the same allegations against JO for no apparent reason. The DBS took full account of the representations by JO but was satisfied that the conduct was proven.

He submitted that there was no mistake of fact or law in the barring decision and the appeal should be dismissed.

We have examined all the evidence in the case, both that which was before the DBS and that submitted by the Appellant as part of her appeal and make findings of fact as set out below.

In light of these, we will consider whether the DBS made mistakes of fact in accordance with the approach set out in PF v DBS. The burden of proof remained on the DBS when making its findings of relevant conduct in its barring decision. Thereafter on the appeal the burden was on the Appellant to establish a mistake of fact:

Furthermore, ‘In determining whether the DBS has made a mistake of fact, the tribunal will consider all the evidence before it and is not confined to the evidence before the decision-maker. The tribunal may hear oral evidence for this purpose…. In reaching its own factual findings, the tribunal is able to make findings based directly on the evidence and to draw inferences from the evidence before it...The tribunal will not defer to the DBS in factual matters but will give appropriate weight to the DBS’s factual findings in matters that engage its expertise.’

We note that the Appellant did not attend the hearing of the appeal and was not cross examined but neither were the DBS’s witnesses so there is no difference in the weight to be given to their written evidence. We draw no adverse inference from the Appellant’s absence from the hearing because we accept her explanation for not attending. Likewise, we draw no adverse inference from her failure to attend a disciplinary hearing before her employer or bring Employment Tribunal proceedings. In circumstances where she found alternative employment, did not know at the time that a referral was being made to the DBS and where employment tribunals claims can be stressful and time consuming, these are not necessarily the actions of a person who accepts the allegations made by her employer. Rather they might reasonably wish to ‘move on’ with their life. Each case requires a fact specific consideration.

It is also worth noting that at the time in question the care home was operating in the midst of the COVID pandemic with all the pressure and stresses that this brought.

This is a very serious allegation which the DBS found to be proved as relevant conduct: that JO instructed carers not to give food or water to two residents who were receiving end of life care.

We largely agree with the Appellant’s grounds of appeal submitting there was a mistake of fact in relation to this allegation and finding. She made representations as to their being a mistake of fact in the DBS’s finding on Allegation 3 as follows:

Further, the Appellant addressed this allegation at length in her witness statement dated 30 September 2021. It was a detailed statement (far more detailed than the interview notes of the witnesses relied on by the DBS). She addressed each piece of evidence from each witness. She does not simply deny this allegation but gave a positive alternative explanation.

For example, at paragraphs 70-72 of the Appellant’s statement she states:

Later on, the Appellant states:

She [the witness] mentions a denial of food and water to an End of Life resident

She mentions another such case

We accept the Appellant’s comments on the reliability of BG’s evidence as set out at para 72 of her statement. Further and importantly, the evidence of BG on this topic is weak – it is hearsay and unspecified - it is not capable of identifying the Appellant positively as the alleged perpetrator because the witness did not know where the instruction regarding end of life care came from. The notes of BG’s interview records:

Therefore, very little weight can be placed on this evidence.

JT was the only positive witness against the Appellant and it was her word against the Appellant’s. The note of JT’s interview is recorded as stating:

JT’s evidence comes from notes of an interview and not from a signed witness statement like the Appellant had provided. There was no clear medical evidence as to what this resident was supposed to receive by way of nutrition to support JT’s account on this matter. While we accept parts of JT’s other evidence, we are satisfied that this evidence comes from a mistaken perception and she has misinterpreted what JO has said for the reasons the Appellant has explained.

In her handwritten letter dated 7 November 2021 (page 130) the Appellant states: ‘All I said about an end of life resident is that if they start choking you will have to stop as they might not be swallowing the food or drink and the fluid could go into their lungs and we would have to ring the GP for advice’.

We accept the Appellant’s explanation in this letter as to how instructions might be given concerning patients potentially choking. They support the context of how what she said could be misinterpreted or miscommunicated

We have considered JO’s written evidence on this allegation and find it to be reliable even though it was not tested in cross examination. We note that the allegation and finding of the DBS was based on the hearsay evidence of the two former colleagues, Activity Coordinator BG and carer LT. We accept, on the balance of probabilities, the positive explanation in the Appellant’s witness statement about the need for careful treatment of residents for whom swallowing may be difficulty.

We also take into account that in her interview with her employer, the allegation was not put to the Appellant specifically – so she never previously had opportunity to answer specific allegations before her witness statement was served a year later in 2021 – when she completely denied the allegation relating to end of life treatment.

Furthermore, the Appellant’s employer did not pursue this allegation against her – and it was the most serious allegation that could not reasonably be ignored. It was not a ground pursued in the suspension of employment letter or on the employer’s referral to the DBS.

Instead, we are satisfied on the balance of probabilities, taking into account all the evidence before us, that the DBS made a mistake of fact in making this finding. We are satisfied that the DBS made a mistake of fact in finding this allegation proved on balance of probabilities. We are satisfied that it was a mistake of fact on which the DBS barring decision was based.

Allegation 1 upon which the DBS made a finding of relevant conduct against the Appellant was that on various occasions in her employment she prevented residents from making choices about food or where they sat, made residents feel uncomfortable in their own home, talked to residents in an inappropriate manner by telling them to shut up.

We break this down into the various sub allegations contained therein.

We bear in mind that the allegation as a whole is supported by six witnesses, four colleagues and two residents - albeit not all speak to each of the sub allegations.

First is the allegation that on various occasions the Appellant prevented residents from making choices about food. There was evidence from 1 or 2 carers that JO did not like to keep sandwiches for one resident (a woman hiding food in drawers) but threw them away. There was also a hearsay from one resident (p.61) – it seems to be a hearsay report - and from another resident (p.57) who was reporting directly of the same.

However, there is no evidence as to the care home policy on food in rooms – it is unclear what the rules were. Further, there are mainly only hearsay reports against the Appellant.

The Appellant states in her statement (paras. 66-68) that she did throw away sandwiches but she was not preventing residents from having them or food outside mealtimes. For example, if elderly residents were keeping sandwiches for later and they would go off (become stale or unhygienic) she would remove them so that fresh sandwiches could be made on request. If she found residents hording food, she would throw it away:

She reports that I denied a male resident food when he wanted to eat it. She says:

The Appellant addressed the mistake of fact in this sub-finding within Allegation 1 in her grounds of appeal as follows:

We find there was a mistake of fact in DBS finding this sub-allegation proved on the balance of probabilities as relevant conduct – causing or likely to cause harm. It is not enough to prove that the Appellant was throwing away food but that she was deliberately or recklessly causing harm to patients by restricting or throwing away their food. We find there was a mistake of fact in relation to this sub-allegation based on all the evidence in the case once considered.

In respect of restricting access to milk, this is also not proven to be relevant conduct – we accept the Appellant’s explanation in her submissions: ‘The DBS finding that I had put full fat milk into a resident’s cup of tea (when the resident preferred semi-skimmed milk) fails to deal with my explanation that I did so, not from spite, but because there was only full fat milk available.’ We also accept her witness statement evidence on balance:

We are also satisfied that the sub-allegation about the Appellant restricting choices about where residents sat contains a mistake of fact – there was no evidence in support of this. We find there was a mistake of fact based on the evidence.

However, we are satisfied that the sub-allegation that the Appellant would tell residents to shut up is proved and there was no mistake of fact in the DBS so finding.

The Appellant addresses it in broad terms in her grounds of appeal:

We are not satisfied there was a mistake of fact in the DBS finding. This is for all the reasons set out in the DBS decision above and in Mr Serr’s summary of the relevant evidence. The allegation was consistent and corroborated across a range of witnesses.

For example, at pages. 63, 65 and 67 of the bundle there is compelling evidence from an unnamed resident of this occurring. It is direct evidence and not hearsay. It is relevant (and inappropriate) conduct because it caused emotional upset and harm. There was substantial evidence in support from multiple additional and various sources of the manner in which JO conducted herself (not just former colleagues who are alleged to be malicious towards her).

We accept Mr Serr’s submissions on this topic, as set out above, and the range of evidence to which he refers from the various witnesses. We also accept that it happened on various occasions that it was done deliberately or recklessly. We also accept that the Appellant would tell residents to go to their rooms as alleged. All six witnesses (including carers and residents ) stated that she would tell residents to shut up and /or shout at them and /or tell them to go to their rooms.

We are satisfied that she was attempting to exercise an unprofessional degree of control over residents that was not reasonable and caused harm. We are not satisfied that the Appellant’s denials in her interview with the employer and in her witness statement are reliable – we are not satisfied that the allegations were maliciously motivated.

We also accept the range of evidence that the Appellant did intimidate residents and on more than one occasions made them feel frightened and that she often raised her voice. We are satisfied that the sub-allegation that she made residents feel uncomfortable in their own home and more than that on occasion was properly proved and there was no mistake of fact in the DBS making these findings. The Appellant accepted that she can be loud and her denials in her witness statement are merely generalised assertion:

She [the witness] says that she has personally witnessed me raising my voice to residents.

I had occasion to speak loudly and clearly but I am never deliberately rude and I never shout.

She says JO has on occasion told residents to “shut up and go to their rooms”

Again, we accept the range of evidence as referred to in Mr Serr’s submissions above and the reasons given in the barring decision letter. This sub-allegation is proved and there was no mistake of fact within it. Again, it is clearly relevant conduct that would and did cause emotional harm to residents.

In terms of mitigation for the findings of relevant conduct which remain undisturbed, this is difficult to determine as the Appellant does not accept the conduct occurred so demonstrates no insight or remorse. It might be said that the Appellant was having to take management responsibility but without support or with no authority. Perhaps more importantly, it may also have been that the Appellant was very stressed by the extreme pressures faced by care homes operating under COVID and was only put in charge through her seniority and experience. While she may have been entitled to be aggrieved, her response was not professional. We also accept the point that the DBS recognises – the Appellant had a long and otherwise unblemished record as a care worker (the DBS properly considered this in relation to her credibility and propensity as to misconduct).

We therefore find that there was no mistake of fact in the, arguably more serious, parts of the finding of relevant conduct in relation to allegation 3:

However, we find that there was a mistake of fact in the parts of the finding that:

We are not satisfied that there were any mistakes of law in the DBS decision.

The three ‘error of law’ grounds of appeal can be dealt with briefly.

We are not satisfied there was any error of law as alleged. At all times the DBS applied the correct burden of proof in considering whether it was established on the balance of probabilities that the Appellant had committed the relevant conduct. It did not reverse the burden of proof but recognised the burden was upon it in making the barring decision to find the allegations proved.

We are not satisfied there was any error of law as alleged. The DBS took into account all relevant evidence including supporting or corroborative character evidence when making its findings (and her good character went to her propensity to misconduct and credibility). It considered but rejected the character evidence (including the Appellant’s long and unblemished record and testimonials from colleagues) within its barring decision process document. It gave rational reasons for rejecting the reliability of her evidence and these outweighed the weight of any witness evidence (see for example page 135 of the bundle):

There was no error of law on the part of the DBS in this regard. There is only one standard of proof and the DBS correctly applied it – the balance of probabilities. The cogency of the evidence and weight to be given is a matter for the factual assessment of the DBS and thereafter for the tribunal on appeal. We have considered the cogency of the evidence in relation to allegations 3 and 1 and have concluded that there were mistakes of fact in the DBS’s findings in relation to allegation 3 and parts of allegation 1.

We conclude for the purposes of section 4 of the Act that:

For the purposes of section 4(6) of the Act, having found that DBS has made some mistakes of fact, we remit the matter to DBS for a new decision based upon our findings. It must decide whether it is appropriate and proportionate to include the Appellant on the ABL in light of the findings of relevant conduct which we have upheld (parts of allegation 1).

It would not be appropriate for us to direct removal of the Appellant from the list in circumstances where there remain findings of relevant conduct (parts of allegation 1). The DBS is entrusted with the expert decision making as to assessment of the risk posed and the appropriateness of barring in light of the relevant conduct established.

The appeal is allowed in part and the case remitted with the direction as set out above.

We make some further observations on the DBS’s case.

The first is that Allegation 1 contained multiple allegations of relevant conduct and it would have been preferable if it had been sub-divided into specific sub-allegations so each could have been considered separately and independently by the decision-maker in the DBS and the tribunal.

Secondly, we accept that there was no error in the DBS’s failure to obtain other evidence or obtain disciplinary records or interview other residents or co-workers in this case. There is no statutory or common law duty to pursue all reasonable lines of enquiry – only the public law duty for it to act rationally and in good faith when obtaining evidence and relying upon it. We were given no evidence of the size of the care home or number of residents or co-workers. Nonetheless, we can take into account the absence of evidence when deciding whether there is a mistake of fact by the DBS. In future cases, it would assist if the DBS confirms whether it has used its best endeavours to pursue all reasonable lines of enquiry pointing towards and away from the case it alleges against a barred person and confirms whether it has taken reasonable steps to obtain all relevant evidence. What is relevant and reasonable will depend on all the facts of the case including the seriousness of the allegations and the nature or sources of the potentially available evidence.

The Safeguarding Vulnerable Groups Act 2006 (‘the Act’) established an Independent Barring Board which was renamed the Independent Safeguarding Authority (‘ISA’) before it merged with the Criminal Records Bureau (‘CRB’) to form the Disclosure and Barring Service (“DBS”).

So far as is relevant, section 2 of the Act, as amended, provides as follows:

DBS must establish and maintain—

the children's barred list;

the adults' barred list.

Part 1 of Schedule 3 applies for the purpose of determining whether an individual is included in the children's barred list.

Part 2 of that Schedule applies for the purpose of determining whether an individual is included in the adults' barred list.

Part 3 of that Schedule contains supplementary provision.

In respect of an individual who is included in a barred list, DBS must keep other information of such description as is prescribed.’

The relevant provisions (paragraphs 8 to 11) of Part 2 of Schedule 3 to the Act, on the vulnerable adults’ barred list, provide as follows:

Sub-paragraph (4) applies if it appears to DBS that—

this paragraph applies to a person, and

the person is or has been, or might in future be, engaged in regulated activity relating

[DBS] must give the person the opportunity to make representations as to why the person should not be included in the adults’ barred list.

Sub-paragraph (6) applies if—

the person does not make representations before the end of any time prescribed for the

the duty in sub-paragraph (4) does not apply by virtue of paragraph 16(2).

If [DBS] —

is satisfied that this paragraph applies to the person, and

has reason to believe that the person is or has been, or might in future be, engaged in

Sub-paragraph (8) applies if the person makes representations before the end of any time

If [DBS] —

is satisfied that this paragraph applies to the person,

has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults, and

is satisfied that it is appropriate to include the person in the adults’ barred list, it must include the person in the list.

it appears to [DBS] that the person [—]

is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults, and]

[DBS] proposes to include him in the adults' barred list.

[DBS] must give the person the opportunity to make representations as to why he should not be included in the adults' barred list.

[DBS] must include the person in the adults' barred list if–

it is satisfied that the person has engaged in relevant conduct, […]

it [ is satisfied] that it is appropriate to include the person in the list.

conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult;

conduct which, if repeated against or in relation to a vulnerable adult, would endanger

conduct involving sexual material relating to children (including possession of such

conduct involving sexually explicit images depicting violence against human beings

conduct of a sexual nature involving a vulnerable adult, if it appears to [DBS] that the conduct is inappropriate.

A person's conduct endangers a vulnerable adult if he–

harms a vulnerable adult,

causes a vulnerable adult to be harmed,

puts a vulnerable adult at risk of harm,

attempts to harm a vulnerable adult, or

incites another to harm a vulnerable adult.

“Sexual material relating to children” means–

indecent images of children, or

material (in whatever form) which portrays children involved in sexual activity and which is produced for the purposes of giving sexual gratification.

“Image” means an image produced by any means, whether of a real or imaginary subject.

A person does not engage in relevant conduct merely by committing an offence prescribed for the purposes of this sub-paragraph.

For the purposes of sub-paragraph (1)(d) and (e), [DBS] must have regard to guidance issued by the Secretary of State as to conduct which is inappropriate.

it appears to [DBS] that the person [—]

is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults, and]

[DBS] proposes to include him in the adults' barred list.

[DBS] must give the person the opportunity to make representations as to why he should not be included in the adults' barred list.

[DBS] must include the person in the adults' barred list if–

it is satisfied that the person falls within sub-paragraph (4), […]

it [is satisfied] that it is appropriate to include the person in the list.

A person falls within this sub-paragraph if he may–

harm a vulnerable adult,

cause a vulnerable adult to be harmed,

put a vulnerable adult at risk of harm,

attempt to harm a vulnerable adult, or

incite another to harm a vulnerable adult.

There are three separate ways in which a person may be included in the barred lists under Schedule 3 to the Act.

The first category is under paragraphs 1 and 7 of Schedule 3 to the Act, where a person will be automatically included in the lists without any right to make representations (‘autobar’). This is where they have been convicted of certain specified criminal offences or made subject to specified orders set out within Regulations 3 and 5 and paragraphs 1 and 3 of the Schedule to The Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (‘The Regulations’).

The second category is under paragraphs 2 and 8 of Schedule 3 to the Act, where a person will be included in the lists if they meet the prescribed criteria. The person who is proposed to be barred has a right to make representations to the DBS (‘autobar with representations’). There are prescribed criteria where a person has been convicted of certain specified criminal offences or made subject to specified orders but nonetheless is entitled to make representations as to inclusion on the list. The prescribed criteria are set out within Regulations 4 and 6 and paragraphs 2 and 4 of the Schedule to The Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009.

If a person falls within the prescribed criteria under the Regulations, they satisfy subparagraph (1) of the following paragraphs and therefore under paragraphs 2(6), (2)(8), 8(6) or 8(8) of Schedule 3 to the Act, the DBS will include the person in the children’s or adults’ barred list if it:

is satisfied that this paragraph applies to the person,

has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to [children or adults], and [so long as the person has made representations regarding their inclusion]

is satisfied that it is appropriate to include the person in the children's barred list, it must include the person in the list.

In contrast, this appeal concerns the third category (‘discretionary barring’) where a person does not meet the prescribed criteria (has not been convicted of specified criminal offences nor made subject to specified orders as set out within the Regulations and the Schedule thereto), and therefore paragraphs 3 and 9 of Schedule 3 to the Act apply.

It is the third category under which the DBS made the decision to bar the Appellant.

Under paragraphs 3(3) and 9(3) of Schedule 3 the DBS must include the person in the children’s barred list if:

it is satisfied that the person has engaged in relevant conduct, and

it is satisfied that it is appropriate to include the person in the list.

‘Relevant conduct’ is defined under paragraphs 4 and 10 of Schedule 3 to the Act as set out above.

The difference between the sets of criteria in the second and third categories is where a person meets the prescribed criteria for automatic inclusion with representations (has been convicted of a specified offence or made subject of a specified order), the DBS is not required to decide if the person has been engaged in relevant conduct. This is because the statutory scheme appears designed so that a specified criminal conviction which satisfies the prescribed criteria, renders the need to make any findings about a person’s conduct otiose.

Appeal rights against decisions made by the Respondent (DBS) are governed by section 4 of the Act. Section 4(1) provides for a right of appeal to the Upper Tribunal against a decision to include a person in a barred list or not to remove them from the list. Section 4 states:

. . .

a decision under paragraph [2,] 3, 5, [8,] 9 or 11 of [Schedule 3] to include him in the list;

a decision under paragraph 17[, 18 or 18A] of that Schedule not to remove him from the list.

An appeal under subsection (1) may be made only on the grounds that DBS has made a mistake —

on any point of law;

in any finding of fact which it has made and on which the decision mentioned in that subsection was based.

For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.

An appeal under subsection (1) may be made only with the permission of the Upper Tribunal.

Unless the Upper Tribunal finds that [the DBS] has made a mistake of law or fact, it must confirm the decision of DBS.

If the Upper Tribunal finds that DBS has made such a mistake it must—

direct DBS to remove the person from the list, or

remit the matter to DBS for a new decision.

If the Upper Tribunal remits a matter to [the DBS] under subsection (6)(b)—

the Tribunal may set out any findings of fact which it has made (on which DBS must base its new decision); and

the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise.’

Thus section 4(2) of the Act provides that a person included in (or not removed from) either barred list may appeal to the Upper Tribunal on the grounds that the DBS has made a mistake of law (including the making of an irrational or disproportionate decision) or a mistake of fact on which the decision was based. Although not provided for by statute, the common law requires that any mistake of fact or law, normally referred to as ‘errors’, must be material to the ultimate decision ie. that they may have changed the outcome of the decision – see [102]-[103] of the judgment in R v (Royal College of Nursing and Others) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin) (‘RCN’):

It flows from this that an appeal to the Upper Tribunal can only succeed if the DBS made a mistake in fact in making a finding upon which the decision is based or made a mistake in law in any way in making its decision – see section 4(5) of the Act.

Some mistakes of fact will amount to errors of law, for example, if it is demonstrated that the DBS took into account evidence that was irrelevant, or failed to take into account evidence that was relevant or made a finding that was unreasonable – no reasonable tribunal could have arrived at upon the evidence before it. These are all errors of law that might be committed in relation to a factual finding.

However, by virtue of section 4(2), mistakes of fact which are not also errors of law may also constitute a ground upon which the Upper Tribunal may interfere with a DBS finding upon which a decision is based. This type of mistake of fact might arise if the DBS recorded or interpreted evidence before it inaccurately or incorrectly or relied upon evidence which was inaccurate or incorrect as a matter of fact.

So long as the DBS takes account of the relevant evidence, provides rational reasons and makes no errors in the facts relied upon for rejecting a barred person’s account on the balance of probabilities, this is unlikely to give rise to an arguable mistake of fact. In other words, an appeal before the Upper Tribunal is not a full merits appeal on the facts – see [104] of the RCN judgment below.

The Upper Tribunal must begin by examining the DBS decision and deciding whether it made any mistakes when finding the facts (such findings will have been made based on the documentary material available to it). However, the Upper Tribunal may also make its own fresh findings of fact having heard all potentially relevant evidence and witnesses during the appeal process by which it may determine whether the DBS made a mistake of fact which was material to the making of its decision.

The extent of the jurisdiction for the Upper Tribunal to determine mistakes of fact by the DBS and make its own findings of fact was outlined in PF v Disclosure and Barring Service [2020] UKUT 256 (AAC) at [51]:

In those narrow but well-established circumstances in which an error of fact may give rise to an error of law, the tribunal has jurisdiction to interfere with a decision of the DBS under section 4(2)(a).

In relation to factual mistakes, the tribunal may only interfere with the DBS decision if the decision was based on the mistaken finding of fact. This means that the mistake of fact must be material to the decision: it must have made a material contribution to the overall decision.

In determining whether the DBS has made a mistake of fact, the tribunal will consider all the evidence before it and is not confined to the evidence before the decision-maker. The tribunal may hear oral evidence for this purpose.

The tribunal has the power to consider all factual matters other than those relating only to whether or not it is appropriate for an individual to be included in a barred list, which is a matter for the DBS (section 4(3)).

In reaching its own factual findings, the tribunal is able to make findings based directly on the evidence and to draw inferences from the evidence before it.

The tribunal will not defer to the DBS in factual matters but will give appropriate weight to the DBS’s factual findings in matters that engage its expertise. Matters of specialist judgment relating to the risk to the public which an appellant may pose are likely to engage the DBS’s expertise and will therefore in general be accorded weight.

The starting point for the tribunal’s consideration of factual matters is the DBS decision in the sense that an appellant must demonstrate a mistake of law or fact. However, given that the tribunal may consider factual matters for itself, the starting point may not determine the outcome of the appeal. The starting point is likely to make no practical difference in those cases in which the tribunal receives evidence that was not before the decision-maker.’

The recent judgment of the Court of Appeal in Disclosure and Barring Service v AB [2021] EWCA Civ 1575 (‘AB’), addressed the Tribunal’s fact-finding jurisdiction when remitting cases to the DBS having allowed an appeal:

On an appeal, the Upper Tribunal (‘UT’) must confirm the DBS’s decision unless it finds a material mistake of law or fact. If the UT finds such a mistake, it must remit the matter to the DBS for a new decision or direct the DBS to remove the person from the list.

Under section 4(3) of the Act, the decision whether or not it is “appropriate” for an individual to be included in a barred list is “not a question of law or fact”. Section 4(3) of the Act therefore provides that the appropriateness of a person’s inclusion on either barred list is not within the Upper Tribunal’s jurisdiction on an appeal. Unless the DBS has made a material error of law or fact the Upper Tribunal may not interfere with the decision - RCN at [104]:

The fact that the appropriateness of barring is not to be examined as an error of fact in the light of section 4(3) of the Act was recently reiterated in DBS v AB [2021] EWCA Civ 1575. The Court of Appeal explained the nature of the Upper Tribunal’s jurisdiction at [67]-[68]:

Therefore, the DBS is empowered and required to make a judgement as the expert body appointed by Parliament, whether the relevant conduct is such that, in all the circumstances, makes it “appropriate” to include the individual in the CBL. In so doing it will normally take into account a risk assessment, that it performs in relation to the individual it proposes to bar. However, the DBS concedes that the rationality and proportionality of any risk assessment it conducts can be challenged as having been made in error of law.

A mistake or error of law includes instances where the DBS have got the particular legal test or tests wrong (applied or interpreted the law incorrectly), or failed to consider all the relevant evidence or made a perverse, unreasonable or irrational finding of fact, or failed to explain the decision properly by giving sufficient or accurate reasons, or breached the rules of natural justice by failing to provide a fair procedure or hearing (in the rare circumstances where it considers oral representations).

A mistake of law will also include instances where the decision to bar was disproportionate.

The UT is not permitted to carry out a full merits reconsideration of, or to revisit, the appropriateness of R’s decision to bar; but it does have jurisdiction to determine proportionality and rationality in relation to the DBS’s judgment as to the risk that a barred person poses and whether they should be included on the list, according appropriate weight (in so doing) to the DBS’s decision as the body particularly equipped, and expressly enabled by statute, to make safeguarding decisions of this specific kind (e.g. B v Independent Safeguarding Authority (CA) [2012] EWCA Civ 977, [2013] 1 WLR 308 ; Independent Safeguarding Authority v SB (Royal College of Nurses intervening) [2012] EWCA Civ 977; [2013] 1WLR 308 (‘B’).

Maintenance of public confidence, in the regulatory scheme and the barred lists, will “always” be a material factor when seeking to balance the rights of the individual and the interests of the community (e.g. B). Where it is alleged that the decision to include a person in a barred list is disproportionate to the relevant conduct or risk of harm relied on by the DBS, the Tribunal must, in determining that issue, give proper weight to the view of the DBS as it is enabled by statute to decide appropriateness - see the Court of Appeal’s judgment in B at paragraphs [16]-[22] (ISA formerly assuming the role of the DBS):

All that is now well established. The next question – and the one upon which Ms Lieven focuses – is how the court, or in this case the UT, should approach the decision of the primary decision-maker, in this case the ISA. Whilst it is apparent from authorities such as Huang and Quila that it is wrong to approach the decision in question with "deference", the requisite approach requires

This brings me to two particular points. First, there is the fact that, unlike the ISA, the UT saw and heard SB giving evidence. However, it cannot be suggested that it was unlawful for the ISA not to do so. It had had at its disposal a wealth of material, not least the material upon which the criminal conviction had been founded and which had informed the sentencing process. The objective facts were not in dispute. Secondly, Mr Ian Wise QC, on behalf of the Royal College of Nursing, emphasises the fact that the UT is not a non-specialist court reviewing the decision of a specialist decision-maker, which would necessitate the according of considerable weight to the original decision. It is itself a specialist tribunal. Whilst there is truth in this submission, it has its limitations for the following reasons: (1) unlike its predecessor, the Care Standards Tribunal, it is statutorily disabled from revisiting the appropriateness of an individual being included in a Barred List, simpliciter; and (2) whereas the UT judge is flanked by non-legal members who themselves come from a variety of relevant professions, they are or may be less specialised than the ISA decision-makers who, by paragraph 1(2) of schedule 1 to the 2006 Act "must appear to the Secretary of State to have knowledge or experience of any aspect of child protection or the protection of vulnerable adults". I intend no disrespect to the judicial or non-legal members of the UT in the present or any other case when I say that, by necessary statutory qualification, the ISA is particularly equipped to make safeguarding decisions of this kind, whereas the UT is designed not to consider the appropriateness of listing but more to adjudicate upon "mistakes" on points of law or findings of fact (section 4(3)).’

In summary, questions of the proportionality of DBS’s decisions to include individuals on the barred lists should be examined applying the tests laid down by Lord Wilson in R (Aguilar Quila) v Secretary of Stage for the Home Department [2012] 1 AC 621 at para 45:

is the legislative objective sufficiently important to justify limiting a fundamental right?

are the measures which have been designed to meet it rationally connected to it?

are they no more than are necessary to accomplish it?

do they strike a fair balance between the rights of the individual and the interests of the community?

In assessing proportionality, the Upper Tribunal has ‘…to give appropriate weight to the decision of a body charged by statute with a task of expert evaluation’ (see Independent Safeguarding Authority v SB [2012] EWCA Civ 977 at [17] as set out above).

The burden of proof is upon the DBS to establish the facts and relevant conduct upon which it relies in making its decision. Thereafter the burden is on the Appellant on the appeal to establish a mistake of fact. The standard of proof to which the DBS and the Upper Tribunal must make findings of fact is on the balance of probabilities, ie. what is more likely than not. This is a lower threshold than the standard of proof in criminal proceedings (being satisfied so that one is sure or beyond reasonable doubt).