[2024] UKUT 85 (AAC)

Mr Dingley argued that the Barring Decision proceeded from the mistaken starting point that XYZ did not challenge the findings set out in the DBS’s ‘Minded to Bar’ letter. At the permission stage I was persuaded that this ground of appeal was arguable. I explained my reasons for this in my grant of permission as follows:

“11.

The Respondent’s “Final Decision” letter sets out the Decision to include the Appellant in the Children’s Barred List and explains how it reached the Decision. Immediately under the heading “How we reached this decision” the letter (which was addressed to the Appellant) states:

“Your representations did not challenge the findings made by us.”

12.

However, in response to the “Minded to Bar” letter (and prior to the “Final Decision” letter) the Appellant’s counsel sent detailed representations to the Respondent on 5 June 2020, and again on 7 September 2020. Those representations made it abundantly clear that the Appellant disputed the allegations. Indeed in paragraph 8 of the 5^th June 2020 letter it was stated:

“These submissions constitute a direct challenge to both the rationality and wrongly made factual assertions by the Disclosure and Barring Service.”

13.

The Respondent clearly made a mistake of fact when it said that its findings had not been challenged. I need to consider, though, whether it is arguable that the Decision was “based” on that mistake of fact. In this connection it is important to read the statement quoted in the paragraph above in context:

“Your representations did not challenge the findings made by us. We are now satisfied these allegations are proven on the balance of probabilities:

•

You, whilst employed as a teacher, entered into a relationship with [Pupil A], a year 11 pupil.

Having considered all of the information available to it, the DBS is satisfied that you have engaged in relevant conduct in relation to children, specifically inappropriate conduct of a sexual nature involving a child.”

14.

Given the way the second sentence follows immediately after the first, and given both the lack of reference elsewhere in the letter to any of the points raised in challenge and the very light reasoning provided by the Respondent to explain its finding that the allegations are proved, I am satisfied that it is at least arguable that the Decision was “based” on the mistake of fact that the allegations were not disputed. I am therefore persuaded that Ground 1 warrants a grant of permission to appeal to the Upper Tribunal.”

The hurdle at the permission stage was ‘arguability’, which is a relatively low hurdle. At the appeal stage we must be satisfied that there was indeed a mistake if we are to allow the appeal.

While the ‘Final Decision’ letter makes no reference to the challenges made by Mr Dingley in his letters in response to the ‘Minded to Bar’ letter, the Barring Decision Process document makes repeated reference to them. For example, in the “Allegations or Circumstances” section under the heading “POST REPS” on page 805 of the Appeal Bundle it is stated:

“Whilst it is accepted that [XYZ] denies the allegation and has challenged the evidence used to make the finding ….”

In the “Exploitive attitudes” section under “POST REPS” on page 809 of the Appeal Bundle it is stated:

“[XYZ] continues to deny the allegation but does not offer any reasoning as to why [Pupil A] would fabricate her account”

Further, the “Representations” section at page 815 of the Appeal Bundle include the following bullets:

It also refers to there being 21 character references from a mix of colleagues, employers, parents and ski pupils, saying that these references speak to [XYZ]’s passion for teaching, his professionalism, his exemplary record, and that the referres are unaware of any safeguarding concerns in respect of [XYZ].

These statements in the Barring Process Document demonstrate with adequate clarity that, despite what was said in the ‘Final Decision’ letter, the decision maker was not under a misapprehension that XYZ did not challenge the allegations against him. While the ‘Final Decision Letter’ is wrong when it says XYZ’s representations did not challenge the findings made by the DBS, that error was not a material one. The decision maker clearly took into account the representations made on XYZ’s behalf and grappled with them in the explanation of how the Barring Decision was reached.

For these reasons, while the statement that XYZ didn’t challenge the findings set out in the Minded to Bar letter was inaccurate and unfortunate, we are not persuaded that the Barring Decision was based on a misunderstanding that XYZ did notvigorously deny the allegations made against him.