[2024] UKUT 85 (AAC)

Mr Dingley said that, since it knew that the TRA proceedings were on foot and that those proceedings would typically involve the hearing of live evidence and the opportunity to cross-examine witnesses, the DBS should have delayed making a final decision on XYZ’s referral until the TRA proceedings had concluded. This, he says, would have avoided the situation which eventuated, with the DBS making what XYZ maintains were mistaken findings of fact.

This submission ignores the fact that the DBS is a creature of statute with a statutory responsibility to carry out its safeguarding role as provided by the 2006 Act. When a matter is referred to it, the DBS has no option but to consider the referral and to decide whether the criteria for inclusion are met. If it finds that the criteria are met, then the DBS must place the referred person’s name on the applicable list or lists.

The 2006 Act does not contain any provision requiring the DBS to await the conclusion of other proceedings that relate to matters common to the referral before deciding whether to make a final barring decision. The 2006 Act does not empower the DBS to make an ‘interim’ barring decision pending the determination of other proceedings, which leaves a potential “safeguarding gap” during which the referred person would be entitled to continue to work in regulated activity, potentially exposing vulnerable people to an unacceptable risk of harm in the period up to the DBS making its decision whether to bar. Had Parliament intended that the DBS should not make a final decision before other proceedings had been concluded, it would surely have said so.

The 2006 Act does provide for the right of a barred person to apply for a review of their inclusion in a barred list in certain circumstances (see paragraph 18 of Schedule 1 to the 2006 Act) (a “Paragraph 18 Review”). It also gives the DBS a power to review its barring decisions at any time (provided that no application for a Paragraph 18 Review has been made and no Paragraph 18 Review is ongoing) if it is satisfied in the light of a) information which it didn’t have at the time of the person’s inclusion in the list, (b) any change in circumstances in relation to the person concerned, or (c) any error by DBS, that it is not appropriate for the person to be included in the list (see paragraph 18A of Schedule 3 to the 2006 Act). It is clear from the inclusion of these powers in the statute that Parliament intended that a barring decision would survive contradictory findings in other proceedings, and would stand unless and until the DBS carried out such a review and found that inclusion in the list was no longer appropriate.

The DBS acknowledged in its Final Decision Letter that the TRA was at that time undertaking an investigation in relation to XYZ, but it noted that the TRA proceedings were not expected to conclude imminently (the TRA Decision came about a year later) and it referenced the availability of a review should new information come to light. In the circumstances it was open to the DBS to proceed to make a final barring decision.

For these reasons, we are not persuaded that the DBS’s decision to make the Barring Decision prior to the conclusion of the TRA proceedings was in error of law.