[2024] UKUT 441 (AAC)

The relevant legislation is in the Safeguarding Vulnerable Groups Act 2006. Inclusion in the children’s barred list is governed by section 2 of that act and Part 1 of Schedule 3 to the act. The basis for the decision in this case was relevant conduct (Footnote: ¹), so paragraphs 3, 4, 5, 9 and 10 of Schedule 3 are relevant.

Section 2 of the Act requires the DBS to maintain the children’s barred list. By virtue of section 2, Schedule 3 to the Act applies for the purpose of determining whether an individual is included in the list. Regulated activity is determined in accordance with section 5 of, and Schedule 4 to, the 2006 Act. Both parties agree the appellant was engaged in regulated activity when he wanted to coach football.

Schedule 3 to the Act provides for inclusion by reference to “relevant conduct” by the person included in the list. The appellant must have been engaged in relevant conduct and regulated activity in the past, present or future. Relevant conduct is described in the Act as conduct which endangers or is likely to endanger a vulnerable adult by harming the vulnerable adult or putting the vulnerable adult at risk of harm.

Section 4 of the Act governs appeals. It provides that an appeal may be made to the Upper Tribunal against a DBS decision only on the grounds that the DBS has made a mistake on any point of law or in any finding of fact which the DBS has made and on which the decision was based. Subsection (3) of section 4 provides that, for the purposes of subsection 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.

In this case both parties agreed that we were considering mistake of fact.