[2024] UKUT 42 (AAC)

Section 2 of the SVGA provides that the DBS must maintain the children’s barred list and the adults’ barred list. Subsections (2) and (3) provide, respectively, that Part 1 of Schedule 3 of the SVGA applies for the purpose of determining whether an individual is included in the children's barred list and 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 to England and Wales as follows:

“Barred persons

3.-(1) A reference to a person being barred from regulated activity must be construed in accordance with this section.

(2)

A person is barred from regulated activity relating to children if he is—

(a)

included in the children's barred list….

(3)

A person is barred from regulated activity relating to vulnerable adults if he is—

(a)

included in the adults' barred list…”

Although this is not in issue on this appeal, the Upper Tribunal’s appellate jurisdiction is provided for under section 4 of the SVGA, which provides (insofar as relevant) as follows:

“Appeals

4.-(1) An individual who is included in a barred list may appeal to the Upper Tribunal against—

(b)

a decision…..to include him in the list;…

(2)

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

(a)

on any point of law;

(b)

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

(3)

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.

(4)

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

We deal with section 6 of the SVGA under our analysis of the grounds below.

Section 58 of the SVGA is a key provision in this appeal. It sets out the following.

“Family and personal relationships

58.-(1) This Act does not apply to any activity which is carried out in the course of a family relationship.

(2)

This Act does not apply to any activity which is carried out—

(a)

in the course of a personal relationship, and

(b)

for no commercial consideration.

(3)

A family relationship includes a relationship between two persons who—

(a)

live in the same household, and

(b)

treat each other as though they were members of the same family.

(4)

A personal relationship is a relationship between or among friends.

(5)

A friend of a person (A) includes a person who is a friend of a member of A's family.

Paragraphs 3, 4, 9 and 10 of Schedule 3 to the SVGA deal with what constitutes “relevant conduct” in respect of children and adults. Those paragraphs, insofar as relevant on this appeal, provide as follows:

“3 (1) This paragraph applies to a person if-

(a)

it appears to DBS] that the person

(i)

has (at any time) engaged in relevant conduct, and

(ii)

is or has been, or might in future be, engaged in regulated activity relating to children, and

(b)

DBS proposes to include him in the children's barred list.

(2)

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

(3)

DBS] must include the person in the children's barred list if—

(a)

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

(aa) it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children, and

(b)

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

4 (1) For the purposes of paragraph 3 relevant conduct is—

(a)

conduct which endangers a child or is likely to endanger a child;

(b)

conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him;

(c)

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

(d)

conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to DBS that the conduct is inappropriate;

(e)

conduct of a sexual nature involving a child, if it appears to DBS that the conduct is inappropriate.

(2)

A person's conduct endangers a child if he—

(a)

harms a child,

(b)

causes a child to be harmed,

(c)

puts a child at risk of harm,

(d)

attempts to harm a child, or

(e)

incites another to harm a child.

9 (1) This paragraph applies to a person if—

(a)

it appears to DBS that the person

(i)

has (at any time) engaged in relevant conduct, and

(ii)

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

(b)

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

(2)

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

(3)

DBS must include the person in the adults' barred list if—

(a)

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

(aa) it 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 (b) it is satisfied that it is appropriate to include the person in the list.

10 (1) For the purposes of paragraph 9 relevant conduct is—

(a)

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

(b)

conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him;

(c)

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

(d)

conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to DBS that the conduct is inappropriate;

(e)

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

(2)

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

(a)

harms a vulnerable adult,

(b)

causes a vulnerable adult to be harmed,

(c)

puts a vulnerable adult at risk of harm,

(d)

attempts to harm a vulnerable adult, or

(e)

incites another to harm a vulnerable adult.”

The following decisions set out the bounds of the jurisdiction of the Upper Tribunal in exercising its appellate jurisdiction on DBS 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 only other piece of case law we need to address is the Upper Tribunal’s decision in SA v ISA [2013] UKUT 93 (AAC); [2013] AACR 21. This a decision which decides that theft can constitute relevant conduct under the SVGA. It is what the Upper Tribunal says in SA about “relevant conduct” and “harm” which is important, and we set out the key passages from SA on this. We emphasise at this stage what is said in paragraphs [20]-[21] of SA.

“17.

There is, however, force in Mr Baldwin’s submission that mere loss o[f] property as a result of theft does not amount to harm for the purposes of the 2006 Act. The natural reading of paragraph 10(2) is that “conduct endangers a vulnerable adult” only if there is harm, or a risk of harm, to the person of a vulnerable adult and not to his or her property. But if the loss of property does not amount to harm, it may nonetheless result in it…..

18.

However, it is not necessary to prove that there has been harm. Paragraph 10(1)(a) has the effect that conduct which has endangered a vulnerable adult or was likely to endanger a vulnerable adult is “relevant conduct”. Moreover, by virtue of paragraph 10(2)(c), a vulnerable adult is endangered if put “at risk of harm”. Thus, if conduct creates a risk of harm, then by definition the conduct endangers a vulnerable adult. If the conduct endangers a vulnerable adult then by definition it is relevant conduct and the person who has engaged in such conduct is liable to have their name put on the barred list.

19.

It seems to us to be beyond doubt that theft by a carer from a vulnerable adult for whom he or she is caring is likely to cause, or at least risks causing, deep distress to the vulnerable adult should the vulnerable adult discover it, even if such conduct does not always actually cause harm. It is not the mere loss of property or even the fact that there is a breach of trust that is important; it is the nature of the breach of trust. Where a person is vulnerable and being cared for for precisely that reason, any breach of trust is more serious simply because the need for trust is greater. It is for this reason that we are satisfied that the ISA did not err in considering that the thefts from Mrs M were “relevant conduct” without finding that Mrs M had in fact suffered distress. The same reasoning applies to the thefts from Mr X on the ISA’s finding that they had occurred.

20.

It might be argued that there would be no risk of harm to a vulnerable adult who, by reason of mental incapacity, would be oblivious to any theft. However, paragraph 10(1)(b) has the effect that “relevant conduct” includes conduct which “if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him”. Repeating the conduct in relation to another vulnerable adult not suffering from such mental incapacity would create a risk of harm and accordingly the conduct in respect of the mentally incapacitated victim would be “relevant conduct”.

21.

It follows from our reasoning and from paragraph 10(1)(b) that the housing benefit offences could also be “relevant conduct” in the present case. If the dishonest conduct against the local authority in the housing benefit claims were to be repeated against a vulnerable adult, it would be likely to cause distress.”