[2024] UKUT 192 (AAC)

Section 2 of the SVGA provides that the DBS must maintain the adults’ barred list. Subsections (3) of section 2 provides that Part 2 of Schedule 3 applies for the purpose of determining whether an individual is included in the adults' barred list.

Section 3 of the SVGA deals with the consequences of a person being placed on either barred list, and provides so far as is relevant as follows:

Paragraphs 9 and 10 of Schedule 3 to the SVGA deal with what constitutes “relevant conduct” in respect of adults. Those paragraphs, insofar as relevant on this appeal, provide as follows:

The Upper Tribunal’s appellate jurisdiction is provided for under section 4 of the SVGA, which provides (insofar as relevant) as follows:

The following decisions set out the bounds of the jurisdiction of the Upper Tribunal in exercising its appellate jurisdiction under section 4 of the SVGA cases. First, the appropriateness of a barring decision is not a matter for the Upper Tribunal on appeal. Second, for an appeal to succeed it needs to be shown, on the balance of probabilities, that the DBS made either a material error of law or a material error of fact in its decision: R v (RCN and others) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin) (at paragraph 104) and PF v DBS [2020] UKUT 256 (AAC); [2021] AACR 3. Third, if it is argued that a decision to include a person on a barred list is disproportionate to the relevant conduct or risk of harm relied on by the DBS, the Upper Tribunal must afford appropriate weight to the judgement of the DBS as the body enabled by statute to decide appropriateness: SA v SB & RCN [2012] EWCA Civ 977; [2013] AACR 24. Fourth, what needs to be considered is not the terms of the decision letter alone but the whole basis for the decision as evidenced on the papers the DBS considered in coming to its decision: VT –v- ISA [2011] UKUT 427 (AAC) (at paragraph 36).

The primacy of the DBS’s role as decision maker under the SVGA has been underscored and reaffirmed by the Court of Appeal in DBS v AB [2021] EWCA Civ 1575: see in particular paragraph [43] of that decision. The Court of Appeal in AB have also settled that there is a very limited basis on which the Upper Tribunal can direct that a person be removed from a Barred List under section 4(6) of the Act. The duty to direct removal only arises in circumstances where “that is the only decision the DBS could lawfully reach in the light of the law and facts as found by the Upper Tribunal” (SB at para. [73]).

The Court of Appeal in AB have also settled that there is a very limited basis on which the Upper Tribunal can direct that a person be removed from a Barred List under section 4(6) of the Act. The duty to direct removal only arises in circumstances where “that is the only decision the DBS could lawfully reach in the light of the law and facts as found by the Upper Tribunal” (AB at para. [73]). The decision in AB also contains a useful discussion of what constitutes a ‘finding of fact’, about which it may be argued that the DBS was mistaken, contrasting such a finding with value judgments and the evaluations of the relevance or weight to be given to facts when assessing appropriateness: see para. [55] of AB.

Finally, following the Court of Appeal’s decision in Disclosure and Barring Service v JHB [2023] EWCA Civ 982, and paragraph [95] of that decision in particular, as that decision is explained in Disclosure and Barring Service v RI [2024] EWCA Civ 95 (at paragraphs [33] and [54]), the Upper Tribunal should be slow to consider the DBS has taken a mistaken view of the facts when no new evidence has been put before the Upper Tribunal which bears on the findings of fact made by the DBS in its decision.