[2025] UKUT 041 (AAC)

In conclusion, and for the reasons set out above, we find that the DBS were entitled to find allegations 1 and 2 proven on the balance of probabilities. However, we find that the DBS erred in its finding of fact in respect of allegation 3, a fact upon which the decision to bar the Appellant was based. In light of our conclusions, we must decide how to dispose of the appeal. We have two options. One is to dismiss the appeal on the ground that the mistake of fact was not material to the decision to include the Appellant on the barred lists. The other option is to remit the case to the DBS for a new decision. Given the approach of the Court of Appeal in Kihembo v Disclosure and Barring Service [2023] EWCA Civ 1547 (citing DBS v AB [2021] EWCA Civ 1575) we take the view that the second option is more appropriate. As we are remitting this matter to the DBS on an error of fact, we do not consider it necessary to consider the errors of law asserted by the Appellant as any potential errors of law will be subsumed by the re-making of the decision. In accordance with s.4(7)(b) of the SVGA, the Appellant must be removed from the lists pending the fresh decision of the DBS.