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The legal issues in this appeal
The legal issues in this appeal
XYZ accepts that he has worked in regulated activity with children as a teacher, and he accepts that he intends to engage in regulated activity with children in the future as a sports coach.
However, he disagrees strongly with the Barring Decision and with the findings of fact on which it was based. While he now accepts having given lifts to Pupil A in his car alone on two occasions, and accepts (in retrospect) that this was inappropriate, he denies vehemently having had any form of sexual relationship with, or sexual interest in, Pupil A.
He denies that he communicated with Pupil A on social media, he denies that he asked Pupil A to use an app to conceal communications between them, and he denies ever kissing Pupil A. He also denies having any sexual interest in teenage girls.
He says that the findings of the TRA Panel, which followed a contested hearing before an expert panel at which live evidence was given and at which the parties were represented, establish that the Barring Decision was based on mistakes of fact and should be set aside.
His appeal raises three main legal issues to be addressed by this panel:
did DBS err in law by making a final decision to place XYZ’s name on the Children’s Barred List without a hearing, when it knew that issues of fact central to the referral were due to be determined by the TRA at a hearing where the parties would be able to call witnesses?
what is the significance of the TRA Decision? In particular, are the findings of fact made by the TRA Panel binding on the DBS, or indeed on the Upper Tribunal?
was the Barring Decision based upon a mistake of fact? In particular:
was the DBS under a misapprehension that XYZ did not challenge the findings of fact set out in the “Minded to Bar” letter?
was DBS mistaken in its findings that XYZ holds an exploitative attitude, formed a personal relationship with Pupil A for his own gratification, and holds a significant sexual interest in teenage girls, having engaged in sexual activity with a 16 year old pupil by kissing her on 4 occasions?
- Heading
- The decision of the Upper Tribunal is to dismiss the appeal: the decision of the Disclosure and Barring Service (“DBS”) DBS made on 15 September 2020 to include the Appellant’s name in the Children’s
- What this appeal is about
- Preliminary issue: anonymity
- The Barring Decision
- The TRA Decision
- The legal issues in this appeal
- The statutory framework
- Duty to maintain the Barred Lists
- Criteria for inclusion in the children’s barred list
- Appeals of decisions to include, or not to remove, persons in the Barred Lists
- The recent authorities on the Upper Tribunal’s “mistake of fact” jurisdiction
- Issue 1: Did DBS err in law by making a final decision to place XYZ’s name on the Children’s Barred List without awaiting the outcome of the TRA proceedings?
- Issue 2: What is the significance of the TRA Decision?
- Issue 2: Was the Barring Decision based upon a material mistake of fact?
- Findings that XYZ holds an exploitative attitude, formed a personal relationship with Pupil A for his own gratification, and holds a significant sexual interest in teenage girls, having engaged in sex
- Conclusions