[2025] UKUT 036 (AAC)

Section 2 of the Safeguarding Vulnerable Groups Act 2006 (“the SVGA”) provides that the DBS must maintain the adults’ and children’s barred lists. Subsection (2) of section 2 provides that Part 1 of Schedule 3 applies for the purpose of determining whether an individual is included in the children’s barred list. Similar provisions apply under the SVGA in respect of the adults’ barred list, but given the final ground of appeal, and the nature of the other grounds of appeal, we consider it is only necessary for us out set out the relevant parts of the SVGA concerning inclusion on the children’s barred list.

Paragraphs 3 and 4 of Schedule 3 to the SVGA deal with what constitutes “relevant conduct” in respect of children. 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;…

(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.”

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.

(5)

Unless the Upper Tribunal finds that DBS has made a mistake of law or fact, it must confirm the decision of DBS .

(6)

If the Upper Tribunal finds that DBS] has made such a mistake it must—

(a)

direct DBS to remove the person from the list, or

(b)

remit the matter to DBS for a new decision.

(7)

If the Upper Tribunal remits a matter to DBS under subsection (6)(b)—

(a)

the Upper Tribunal may set out any findings of fact which it has made (on which DBS must base its new decision); and

(b)

the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise.”

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 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 judgements 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. Paragraph [54] of RI, however, makes plain that the ratio of JHB is confined to “cases where the Upper Tribunal either hears no oral evidence at all, or no evidence which is relevant to the question whether the barred person committed the relevant act – in other words, where the evidence before the Upper Tribunal is the same as the evidence before the DBS”. The Court of Appeal in RI agreed with the RI (at paragraph [28]) that:

“The Upper Tribunal is entitled to make a finding that an appellant's denial of wrongdoing is credible, such that it is a mistake of fact to find that she did the impugned act. In so doing, the Upper Tribunal is entitled to hear oral evidence from an appellant and to assess it against the documentary evidence on which the DBS based its decision. That is different from merely reviewing the evidence that was before the DBS and coming to different conclusions (which is not open to the Upper Tribunal).”