HT-2020-000448 - [2024] EWHC 1185 (TCC)

It is Dr Hunt’s view that the Barring Portal (which, subject to changes that have been made since Go-Live, is still available to access) provides a very poor experience for organisational and individual users. It is her view that the portal is not ‘clear, intuitive and optimised for efficient use’ nor ‘customised for each type of user’.

Dr Hunt presents the basis for these conclusions in her Appendix E. This identified 6 complaints, of which 6 were designated ‘High’ impact, 3 were ‘Medium’ impact and 5 were ‘low’ impact. Of the ‘low’ impact items, DBS indicated that it does not maintain its complaint in relation to two of them (items 9 and 12).

TCS’s denial of breach in its Closing Submissions related solely, and in reality with limited vigour, to its reliance upon the fact that DBS had been involved in a collaborative manner in relation to the development of the screens. Similarly, Mr Britton referred often in his cross-examination to the fact of UAT, and that the complaints made by DBS had not been picked up by DBS testers during that phase of testing.

I accept DBS’s case, supported by Dr Hunt, that in reality the sort of problems complained of by DBS would probably have been picked up in effective usaebility testing, which should have been conducted but which, as accepted by Mr Argawal of TCS, was not. Mr Britton also accepted that useability testing to enhance the design should have taken place during the design phase.

In the circumstances, I find that the matters of which Dr Hunt makes complaint are instances in which, by reason of a failure to have complied with GIP, the Barring Portal did not comply with the specification, in that it was not clear, intuitive and/or optimised for efficient use’ nor ‘customised for each type of user’.

DBS also relies upon the Barring Portal failure to have delivered a system which would support DBS’s strategic goal of having at least 50% of barring referrals being only by Year 2 and 90% by Year 5: as identified by Dr Hunt, take up was around 25% after 2 years (there is no comparator for Year 5). The difficulty of making a finding in this regard is that, for obvious reasons, take up of the website relates to a whole range of factors, of which the useability of the site is just one, including the extent to which the site was promoted by DBS. In this regard, DBS’s internal assessment in October 2020 identified that 100% of those referral organisations who continued to make referrals using the paper service would move to an online system to make barring referrals, and of that cohort, 49.1% said they ‘would unequivocally use the online service if they were aware that it existed’ (emphasis in the original). The remaining percentage said they would use the online service if the current offering had been improved, because they had tried but essentially given up. Thus, the reason for lack of usage was pretty evenly split between lack of profile (DBS responsibility) and quality of the site (TCS responsibility). In circumstances where the requirement upon TCS was to provide a product that ‘supported’ the target take up, and a product which was clearly putting people off would comply with the obligation relied upon given that the useability issues were at least a material contributory factor failure to meet the take up targets. TCS were therefore also in breach of this part of Schedule 3.

Perhaps for these reasons, TCS focussed principally on causation. The first point made is that the complaints made by Dr Hunt, and adopted as breaches by DBS, did not align wholly with the issues identified by DBS itself and which, logically, can have been the extent of the matters in mind when DBS decided to re-design the portal. The difference is in part, also, explained (as Dr Hunt accepted) by the fact that useability complaints will always have a degree of subjectivity to them (Day 20/174).

The DBS assessments of the Portal were dated April 2019 and October 2020. For the April assessment, 4 participants took part in Testing Sessions to determine if the portal itself contained reasons for the low usage, and 3 key issues were found that had a 4 or 5 severity rating, and further issues with lower severity were found.

The first key issue was the requirement to enter an authorisation code to allow end users/applicants to use any services linked to their certificates. This was Dr Hunt’s complaint at item 2. Complaints were being made about this by users as early as December 2017, as set out in DBS’s ‘R1 Basic Portal Complaints – TCS analysis’ presentation. DBS recorded: