[2023] UKUT 241 (AAC)

I am not a risk to children. There is not one single piece of evidence to prove that I have ever posed a risk to children in my entire career of working with children. The conviction I am contesting covered 5 years (redacted) of my “unblemished” 30 year plus record of working with children (redacted), so why am I now perceived as posing a risk to children? Why have you now decided to include me in the Children’s Barred List?

In the circumstances, and given the further representations and arguments advanced by the Applicant in the course of these proceedings, I consider it would be helpful to have a written submission on this application from the Respondent. In normal circumstances I would not consider that a necessary or appropriate step where an Applicant is serving a substantial term of imprisonment for a very serious offence. However, this may not be a ‘typical’ case. In particular, it may be that some of the DBS fact-finding and reasoning may be open to challenge. For example, the final decision letter states that the Respondent considers “the offending behaviour to be transferrable to regulated activity”, which is obviously right at the level of a statement of general principle. However, it goes on to say that the Applicant “could be in a position where you could prioritise you [sic] own needs and manipulate/dominate a child with a view to satiating your sexual needs with them”. It is not perhaps immediately obvious that the DBS has laid a proper factual foundation for moving on from the statement of general principle to the particular circumstances of this case, bearing in mind (1) the Applicant has it seems shown no sexual interest in children; (2) the Applicant has an apparently unblemished and long career in teaching; and (3) the offences were committed in the context of a spousal relationship. Point (3) is not intended in any way to downplay the seriousness of the offences, but rather to stress that context may be everything when assessing the likelihood of offending behaviour being repeated. A similar point may be made in relation to the only domain in the Structured Judgement Process where there were “definite concerns”, namely entitlement to sex. There appears to be no suggestion of any indication of such thought processes outside the spousal relationship.

The comments above are intended by way of “thinking aloud”. They do not express a decided view. It remains to be decided whether the Applicant has established an arguable case for being granted permission to appeal.

Dealing with each of those points in tum, firstly the term "autobar" is used to distinguish between cases where DBS must consider the appropriateness of including a person on the CBL under paragraph 2 of Schedule 3 to the 2006 Act, because specific criteria (here, the fact of [Mr W's] conviction) are met, and "discretionary" cases, where it must first consider whether there is relevant conduct or a risk of harm. In 2016, the DBS published guidance which explains this difference: DBS referrals guide: referral and decisionmaking process - GOV.UK (w-vvw.gov.uk) ("the 2016 Guidance").

As the 2016 Guidance also explains, ""The SJP is an internal risk assessment tool developed to help determine whether, based on all available relevant information, there is a future risk of harm to vulnerable groups, including children." It is therefore expressly designed to help determine that issue, but will not of itself be determinative of all cases. It is right that the DBS ordinarily views "Definite Concerns" in two fields, or "Critical Concerns" in one field, as likely to lead to a decision to bar, but this is not an inflexible formula.

The 2016 Guidance refers to a process of escalation to senior management and, where appropriate, the DBS Board Quality Standards Committee ("QSC"), including in cases where the findings of the risk assessment do not appear to support a barring decision but the caseworker considers it would be appropriate to consider barring (or vice versa), and where public confidence is the determining factor. In this case, the decision to depart from the position that "Definite Concerns" in one field will not ordinarily lead to a barring decision was escalated to a team leader and approved for the reasons that are set out in the BDMP.

There was, therefore, nothing "automatic" about [Mr W's] inclusion on the CBL, save for the fact that he was automatically considered for inclusion as a result of his conviction.

It is right to draw the attention of the Tribunal and [Mr W] to the fact that the 2016 Guidance insofar as it relates to the escalation process has been superseded by revised internal guidance reflecting the fact that the QSC is no longer in place. A decision to depart from guidance (such as the ordinary position on "Definite Concerns" in one area of the SJP not leading to a decision to bar) must be escalated to a team leader. Under the new escalation guidance, a decision which relies upon public confidence as a deciding factor must be escalated to the Head of Service. That was not done in this case.

The Tribunal has previously considered a (small) number of cases in which the DBS has not followed its own internal guidance. In AP v ISA [2012] UKUT 412 (AAC), the Tribunal stated at [21] that:

There is no arguable unfairness to [Mr W] in the process followed in this case. The process applied was consistent with the published 2016 Guidance. Escalation to the Head of Service on the public confidence issue would not have resulted in a different outcome. All relevant factors were clearly and transparently considered in the BDMP, and this is unarguably a case in which public confidence is an important consideration and was rightly given weight.

Escalation Guidance

Introduction to the guidance

This document is intended to provide direction and advice in relation to escalation in the production of barring casework. This document does not stand alone and should be considered alongside other guidance depending on the circumstances of the individual case.

In terms of this guidance 'escalation' means an escalation of the full case material, and is distinct from escalation for Team manager sign off purposes.

The Barring and Safeguarding Directorate encourages individual decision making and responsibility in the production of casework. Caseworkers are encouraged to avail themselves of the various avenues of support and advice (such as QA wraparound, peer support, guidance etc.) in coming to any decision, and this escalation guidance is intended for scenarios which need a further level of authority before case progression. This includes those cases requiring mandatory escalation, and those that may benefit from discretionary escalation.

Where a case is escalated; the steps outlined in the Escalation section of the System Basics Procedure should be followed. Itis important that escalations and the responses to them provide an accurate record of any detailed discussions/advice/decisions regarding the case.

Cases which MUST be escalated to a team manager.

There are some cases which require mandatory escalation prior to a case being progressed. The following casework scenarios must be escalated:

• Where the recommendation is "not to include" in the list or; or "remove

following a review", but a judge has imposed a Disqualification from Working

with Children Order (DO).

• Where the caseworker intends to depart from the guidance and such a

departure maybe subject to legal challenge. (e.g. SJP guidance)

• Where the recommendation is to bar on risk of harm only (i.e. no relevant

conduct in relation to either children or vulnerable adults)

• Where a case involving allegations of a sexual nature, psychological harm or serious violence and the caseworker to whom the case has been allocated is of the view that the case should be closed no further action.

• Where the caseworker intends to make a barring or no further action decision which is contrary to the expectations or norms of DBS

• Where a caseworker thinks that a previous decision to close a case, following a further or duplicate referral, was incorrect. The team manager will then refer the case to QSAT who will consider the case as a potential IBO or safeguarding event.

• Following a no risk event from QSAT, where the outcome is agreed as correct, but rework has been recommended. In cases where the agreed correct action is a closure, the team manager will agree to any required rework, and instruct the caseworker accordingly.

Cases which MAY benefit from escalation to a Team manager.

Any case may be formally escalated at the discretion of a caseworker; however, the following scenarios are examples which may benefit from escalation to a Team manager depending on the individual circumstances on a case by case basis.

• Where passage of time alone is considered a deciding factor.

• Where the decision to bar (or not to bar) is so finely balanced that

the caseworker requires formal advice.

• Cases where Autobar offences have been quashed on appeal and

where we may wish to consider under the discretionary route

• Where there is a fundamental difference in expert/specialist opinion

on the case.

• Where the reason for the person being under consideration solely relates to their connection or association with another individual who has been identified as posing a safeguarding risk e.g. individuals disqualified from working with children such as a registered sex offender living with a child minder. Cases where a person is found not guilty by jury (after having the evidence tested in court) but findings have been made on the balance of probabilities arising from the evidence.

Cases which MUST be escalated to Head of Service.

• Where a decision relies upon public confidence as a deciding factor.

• Where there is potential for reputational/legal/policy impact (for instance high profile cases)

• Following a no risk event from QSAT, where the outcome is a bar and the

recommended rework is disputed by the team manager.

• In all cases that have previously been awarded an HRE or an IBO rating,

where the amended decision significantly deviates from either the QSAT feedback or the Head of Service instruction. This includes cases which the

caseworker feels a no action closure is appropriate following representations.

• Any case which the caseworker and Team manager think likely to result in a Safeguarding event

Cases which MUST be escalated to the Executive Director of Barring and Safeguarding.

Cases which have been assessed as potential IBO or Safeguarding event will be escalated by QSAT along with an analysis of the case.

The Executive Director for Barring and Safeguarding is also responsible for

ensuring that, for information, DBS Board is made aware of cases which are

known to be politically sensitive, or which have a high profile and which are

likely to attract the attention of the media.

… the question for the Tribunal must be whether there was any unfairness caused to [Mr W] by that failure to escalate to the Head of Service. That would only be the case if it might have led to a different conclusion, i.e. the Head of Service may have taken a different view on the public confidence issue. The DBS confirms that, having reviewed the case at a senior level, the decision to include [Mr W] in the CBL is considered to be correct, and is maintained.