[2023] UKUT 241 (AAC)

The first ground of appeal is that the DBS failed to follow its own guidance and policies by not escalating the case to the DBS Head of Service for decision. The essence of the parties’ respective positions can be summarised in the following way.

Mr Harrison, for the Appellant, points to the clear terms of the DBS’s Escalation Guidance. This was a case in which the DBS placed “particular emphasis” on the issue of public confidence in reaching its decision to include Mr W on the CBL. As such, the “full case material” should have been, but was not, escalated to the Head of Service. As a matter of public law, the Appellant was entitled to have his case considered pursuant to whatever policy or practice was applied by the authority in question unless there was good reason for the policy to be departed from. No such good reason had been advanced in the instant case. Consequently the Appellant had been deprived of an important procedural safeguard, in that his case had not been decided at the appropriate level of decision-maker, such failure amounting to a material error of law.

Ms Scolding, for the DBS, acknowledged that escalation to the Head of Service in accordance with the Respondent’s procedures did not take place. However, she submitted that the failure to escalate the case was not material to the decision made. Rather, the process followed was not procedurally unfair and moreover all relevant considerations had been carefully taken into account. The decision-making process had grappled with the Appellant’s representations and had given detailed reasons for its conclusions. Furthermore, the Respondent denied that any public law principle of legitimate expectation or good administration had been breached in this case.

We start our consideration of this ground of appeal by addressing the case law to which counsel helpfully directed our attention. In this context an instructive starting point is the judgment of Laws LJ in R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 at [68]:

The same point was put rather more pithily by Lord Dyson JSC in R (WL (Congo)) v Secretary of State for the Home Department [2012] 1 AC 245 at [35]:

As Lord Wilson JSC subsequently recognised in the Supreme Court’s judgment in Mandalia v Secretary of State for the Home Department [2015] UKSC 59; [2015] 1 WLR 4546 at [31], Lord Dyson JSC articulated two qualifications to this principle in in R (WL (Congo)) v Secretary of State for the Home Department [2012] 1 AC 245. The first was that the policy should not be so rigid as to amount to a fetter on the discretion of decision-makers. The second was that the decision-maker should follow the published official policy unless there were good reasons for not doing so.

The application of these public law principles in the context of procedures under the 2006 Act has been considered in two previous Upper Tribunal decisions, AP v Independent Safeguarding Authority [2012] UKUT 412 (AAC); [2013] AACR 17 (‘AP v ISA’; UTJ Bano presiding) and SR v Disclosure and Barring Service [2013] UKUT 103 (AAC); [2013] AACR 31 (‘SR v DBS’; UTJ Ward presiding).

In the first case, AP v ISA (the ISA essentially being the DBS’s immediate forerunner), the Authority’s decision had been made without following its own procedures: the normal risk assessment at Stage 3 of the Structured Judgement Process (SJP) had been omitted, as in ISA’s view there was insufficient information to complete the process, and the case had not been referred to either a senior manager or the ISA Board. On the facts the Upper Tribunal concluded that the evidence before the ISA fully justified the barring decision without the need for the SJP to be applied. Accordingly, there was no injustice to the appellant in the decision in that case not to carry out the normal risk assessment at Stage 3 of the SJP. In terms of the legal principles to be applied, the Upper Tribunal held as follows (at paragraph 21):

The second case, SR v DBS, was factually similar to Mr W’s case, at least in as much as it concerned a case of spousal rape. As in AP v ISA, the Authority (as it was then) had also failed to follow its own procedures – it had omitted the SJP Stage 3 risk assessment on the basis that there was insufficient information and had failed either to consider the issue of public confidence expressly or to refer the case to the Board. (In the present case, of course, a full risk assessment had been carried out and public confidence had been considered, albeit not at the level of the Head of Service.) The Upper Tribunal in SR v DBS held that the failure to apply Stage 3 of the SJP amounted to an error of law: “The present case is not a case where we can say that the stage omitted was one which ‘adds no value to the decision-making process’ (at paragraph 19).

It now falls to us to apply the principles identified in the case law to the circumstances of the present appeal. Stepping back for a moment, we note that the DBS’s Escalation Guidance identified two relevant sets of circumstances for escalation. The first was followed in the present case but not the second.

The first concerned cases which ‘must’ be escalated to a team manager. These include cases “Where the caseworker intends to depart from the guidance and such a departure maybe subject to legal challenge (e.g. SJP guidance)” (paragraph 1.2, second bullet point). This criterion applied as the DBS’s guidance stipulates that a decision to bar ‘ordinarily’ requires either ‘critical concerns’ in one of the SJP fields or ‘definite concerns’ in two such fields. The general guidance was departed from in the present case as the Appellant had no ‘critical concerns’ identified and only one ‘definite concern’. The matter was accordingly escalated to a team leader in line with the Escalation Guidance.

The second, and the subject of this ground of appeal, concerned cases which ‘must’ be escalated to the Head of Service. The first such category comprises cases “Where a decision relies upon public confidence as a deciding factor (paragraph 1.4, first bullet point). Public confidence was plainly a factor on which the DBS placed “particular emphasis” in this case and yet no such escalation took place. The DBS has vouchsafed no explanation as to why this upward referral did not take place. It is therefore unclear whether this was by deliberate decision or by accidental oversight and we make no finding either way.

Does this failure to escalate to the Head of Service matter in the particular circumstances of this case? We consider that it does, for the following reasons.

Our starting point is the nature and purpose of escalation in this context. So far as its nature is concerned, the official guidance explains that “'escalation' means an escalation of the full case material, and is distinct from escalation for Team manager sign off purposes.” Its purpose is therefore to ensure that a senior staff member at the designated grade undertakes a full reconsideration of the case rather than a limited ‘tick box’ quality assurance review of the decision on the case. The thinking behind this is presumably that the senior colleague will have a better handle on the public interest considerations in the light of their greater experience and expertise. We agree with Mr Harrison’s submission that this is not a stage of which it can be said that it “adds no value to the decision-making process” (AP v ISA at paragraph 21).

Ms Scolding submits that both of the two qualifications to the Nadarajah principle of adherence to good administration, as endorsed by the Supreme Court in Mandalia, apply in the context of the instant case. We disagree. The first of those qualifications was that the policy should not be so rigid as to amount to a fetter on the discretion of the decision-maker. However, the requirement to escalate to the Head of Service does not in our view create undue rigidity. After all, it is the Escalation Guidance itself which has put this type of case into the narrow category of cases that ‘must’ be escalated to the Head of Service. The second qualification was that the policy need not apply if there were good reason to depart from it. Ms Scolding’s submission was that the good reason was that the procedural failing was not material so as to cause any unfairness.

What then of the Respondent’s argument that it would have made no difference to the outcome of the process because a subsequent review of the case “at a senior level” had adjudged the decision to be correct? We were unimpressed by this submission, principally for two reasons.

First, and as a matter of principle, a healthy degree of scepticism is in order in evaluating such assertions. As Sales LJ (as he then was) put it, “self-interested speculations of this kind by an official of the public authority which has been found to have acted unlawfully should be approached with a degree of scepticism by a court (Public and Commercial Services Union v Minister for the Cabinet Office [2017] EWHC 1787 (Admin) (at [91]). Furthermore, any analysis of whether a procedural flaw made a difference to an outcome “should normally be based on material in existence at the time of the decision and not simply post-decision speculation by an individual decision maker. Any other course runs the risk of reducing the importance of compliance with duties of procedural fairness and statutory or other requirements that certain matters be taken into account and others disregarded” (R (Logan) v Havering LBC [2015] EWHC 3139 per Blake J at [55]). In addition, it is not enough to say that the decision would probably have been the same in any event; rather, it must be the case that no other outcome was possible (see e.g. Smith v North East Derbyshire Primary Care Trust [2006] EWCA Civ 1291 per May LJ at [10]).

Second, and as already highlighted, there is a distinct absence of detail about this ex post facto review undertaken by the DBS. We do not know when it took place. We do not know what format it took. We do not know the grade of the senior staff member who undertook the review. Given the starting point of healthy scepticism, in those circumstances we cannot be satisfied that the failure to escalate to the Head of Service was not material.

We therefore conclude that the appeal succeeds on Ground 1.