[2023] UKUT 241 (AAC)

In terms of how we should dispose of the appeal, the relevant law is set out in section 4(5)-(7) of the 2006 Act as follows:

Plainly section 4(5) does not apply, as we have concluded that the DBS’s decision involved an error of law. It follows this is not a case in which we must confirm the DBS’s decision. Accordingly, the choice for disposal is between either directing the DBS to remove the Appellant from the CBL or remitting the matter to DBS for a new decision (section 4(6)(a) or (b) respectively).

In applying section 4(6), we are bound by the decision in DBS v AB [2021] EWCA 1575, where the Court of Appeal held (at [72]) that “Unless it is clear that the only decision that the DBS could lawfully come to is removal, the matter should be remitted to the DBS to consider.” We do not consider the section 4(6)(a) option of a direction to DBS for the removal of Mr W’s name from the Children’s Barred List is appropriate. We say that as in our view this is not a case where there is only one possible outcome. Also, we recognise that not all the Appellant’s grounds of appeal have been successful. We therefore remit the matter to the DBS for a new decision under section 4(6)(b). Given the limited oral evidence we heard, we do not consider it appropriate for us to set out any findings of fact (under section 4(7)(a) of the 2006 Act) on which the Respondent should base its new decision.

It is not for us to direct the DBS as to how it goes about the process of making a fresh decision on the Appellant’s case. That said, obviously we would anticipate that the case will be escalated to the Head of Service in accordance with the DBS’s Escalation Guidance. We would also suggest that serious consideration is given to commissioning an independent expert to undertake a specialist risk assessment, given the case has particular nuances and idiosyncrasies that may warrant a more specialised assessment.

Finally, by section 4(7)(b) of the 2006 Act the Appellant must be removed from the barred list until the Respondent makes its new decision, unless the Upper Tribunal directs otherwise. We do direct otherwise as this is not a straightforward case and we consider it needs to be properly evaluated according to the proper DBS procedures if and before any change is made.