[2024] UKUT 19 (AAC)

Section 4(2) of the Act confers a right of appeal to the Upper Tribunal against a decision by DBS under paragraph 3 of Schedule 3 (amongst other provisions) only on grounds that DBS has made a mistake

The Act says that “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” (section 4(3)).

Permission to appeal was given by the Upper Tribunal in a decision issued on 15 September 2022. Upper Tribunal Judge Hemingway expressed his reasons for giving permission to appeal, as follows:

“The DBS has made three clear factual findings as set out in 3 bullet points in the [decision] letter. It seems to me these can only be characterised as findings which it has made and on which the decision (to include in the relevant list) is based. I am persuaded that with respect to those matters, it is reasonably arguable that the DBS has made a mistake. That, of itself, justifies a grant of permission. The DBS has then gone on to state the appellant caused children “emotional and physical harm”; “created a fearful class”; and demonstrated “poor coping skills”. If the findings set out in the bullet points were mistaken ones, then it seems to follow or may follow that these additional findings (if they are to be characterised as findings) were mistaken too. In any event, I am unclear as to whether there was evidence to support the apparent conclusion that emotional and physical harm had actually been caused. Further, even if there was no mistake in any finding of fact, it is arguable that placement on the list was disproportionate.”