![[2023] UKUT 241 (AAC)](https://backend.juristeca.com/files/emisores/logo_3a2BKne.png){kind=logo}
The grounds of appeal before the Upper Tribunal
The grounds of appeal before the Upper Tribunal
It will be evident from this official guidance that some types of cases must be escalated to a team leader whilst others may be so referred upwards. Additionally, other cases must be escalated to the Head of Service while others must be referred to the Executive Director of Barring and Safeguarding. There are no categories of cases which may be referred to the Head of Service or Executive Director.
On 25 July 2022 Judge Wikeley gave Mr W permission to appeal, albeit with some reservations, and observing as follows:
This not to say that [Mr W’s] case is without difficulty. For example, the whole question of whether barring is “appropriate” is “off limits” and so non-reviewable for the Upper Tribunal by virtue of section 4(3) of the 2006 Act. However, I consider there is sufficient here to justify granting permission to appeal, as the threshold is whether the grounds are arguable, and not that they will necessarily succeed. I say that particularly as regards the fact that the case was not escalated to the Head of Service, as seems to have been required by DBS policy documents. Ms Ward asserts that a different outcome would not have eventuated (p.248 at para 13). That may or may not be right but I do not think I should refuse permission on the basis of that assertion alone. I also bear in mind the previous authority of AP v ISA [2013] AACR 17. In that context I consider that SR v DBS [2013] UKUT 103 (AAC); [2013] AACR 31 may be relevant. I am slightly surprised this decision is not referred to in the DBS response, not least given there are some similarities (although also some differences) between that case and the present case. The grant of permission to appeal is not limited to this point, although I do suggest it would appear to be [Mr W’s] strongest point.
The Appellant was subsequently provided with assistance by Advocate, the Bar Council’s pro bono unit. By the time the matter came on for hearing, Mr W’s grounds of appeal had been helpfully refined into four principal areas of challenge. Ground 1 concerned the failure to escalate the case to the DBS Head of Service. Ground 2 was that the Respondent had erred in law in concluding that any risk of harm was transferable from adults to children. Ground 3 was that the Appellant’s inclusion on the CBL was disproportionate, while Ground 4 concerned the Respondent’s reliance on the fact that the Appellant was intoxicated when committing the offences for which he was convicted.
- Heading
- The decision of the Upper Tribunal is to allow the appeal by the Appellant
- This decision and the Orders that follow are given under section 4(5) of the Safeguarding Vulnerable Groups Act 2006 and rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698)
- Pursuant to rule 14(1)(a) the Upper Tribunal orders that no documents or information should be disclosed in relation to these proceedings that would tend to identify any person who has been involved i
- The outcome of this appeal to the Upper Tribunal in a sentence
- A summary of the Upper Tribunal’s decision and what happens next
- The background
- The oral hearing of the Upper Tribunal appeal
- The Orders made on this appeal
- The statutory framework
- The DBS decision to bar the Appellant under the SVGA 2006
- The application for permission to appeal to the Upper Tribunal
- The grounds of appeal before the Upper Tribunal
- Ground 1: the failure to escalate to the DBS Head of Service
- Ground 2: the DBS erred in law in concluding that any risk of harm was transferable from adults to children
- Ground 3: the Appellant’s inclusion on the CBL was disproportionate
- Ground 4: the Respondent’s reliance on the fact that the Appellant was intoxicated when committing the offences
- Disposal
- Conclusions