[2025] UKUT 333 (AAC)

The DBS’s Decision was made pursuant to Paragraph 9 of Schedule 3 to the Safeguarding of Vulnerable Groups Act 2006 (the “2006Act”) which provides:

DBS must include the person in the adults’ barred list if–

Paragraph 10 of Schedule 3 defines “relevant conduct” in this as below:

In this case, the DBS decided that GE had non-consensual sex with his wife. The DBS found that to be “conduct which, if repeated against or in relation to a vulnerable adult would endanger that vulnerable adult or would be likely to endanger him or her” under paragraph 10(1)(b). The DBS was satisfied that GE might in future be engaged in regulated activity relating to vulnerable adults, and there is no dispute that is correct: he wanted to work as a live-in carer. The DBS decided that it was appropriate and proportionate to include GE’s name on the Adults’ Barred List.

An appeal against the decision to include an individual in the Adults’ Barred List may only be made on the grounds that the DBS has made a mistake on a point of law or in any finding of fact on which the decision was based, under s4(2) of the 2006 Act. The decision whether or not it is appropriate for an individual to be included on the Adults’ Barred List is not a question of law or fact: s4(3) of the 2006 Act. A decision on appropriateness can only be set aside if it was Wednesbury unreasonable.

When it comes to mistakes of fact, the starting point for the Tribunal’s consideration will be the DBS decision, although the amount of weight given to the DBS’s findings of fact will depend on all the circumstances : PF v DBS [2020] UKUT 256. If the Tribunal hears evidence which was not before the DBS, it may be entitled to reach the view that a factual finding of the DBS was wrong:

In KS v Disclosure and Barring Service [2025] UKUT 45 (AAC) (“KS v DBS”) a Presidential Panel of the Upper Tribunal confirmed that the Upper Tribunal must assess the proportionality of the DBS’s decision for itself, rather than carrying out a rationality or Wednesbury assessment of the DBS’s assessment of proportionality.