[2024] UKUT 442 (AAC)

In respect of mistake of fact pursuant to SVGA 2006 S.4 (2) (b) the law in this area is comprehensively set out in a series of Court of Appeal cases: AB v DBS (2021) EWCA Civ. 1575; Kihembo v DBS (2023) EWCA Civ. 1574; DBS v JHB (2023) EWCA Civ. 982; and DBS v RI [2024] EWCA Civ. 95. In summary:

The case of PF, as confirmed by the Court of Appeal in DBS v RI represents the law. The Upper Tribunal is entitled to make a finding that an appellant’s denial of wrongdoing is credible, such that it is a mistake of fact to find that he/she did the impugned act. In so doing, the Upper Tribunal is entitled to hear oral evidence from an appellant and to assess it against the documentary evidence on which the DBS based its decision. That is different from merely reviewing the evidence that was before the DBS and coming to different conclusions (which is not open to the Upper Tribunal).

Any mistake of fact must be material to the decision.

The UT needs to distinguish carefully a finding of fact from value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness.

The UT should remit back if the appeal is allowed unless no other decision but removal from the Adults’ Barred List and Childrens’ Barred List is permissible following the UT’s decision.

An assessment of risk however is generally speaking for the DBS and what is and is not a fact should be considered with care. In DBS v AB (2021) EWCA Civ. 1575 Lewis LJ at para 55 stated:

“the Upper Tribunal may set out findings of fact. It will need to distinguish carefully a finding of fact from value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness. The Upper Tribunal may do the former but not the latter. By way of example only, the fact that a person is married and the marriage subsists may be a finding of fact. A reference to a marriage being a "strong" marriage or a "mutually-supportive one" may be more of a value judgment rather than a finding of fact. A reference to a marriage being likely to reduce the risk of a person engaging in inappropriate conduct is an evaluation of the risk. The third "finding" would certainly not involve a finding of fact.”

The appropriateness of a barring decision is not a matter for the Upper Tribunal on appeal. Unless the DBS has made either an error of law or of material fact, the Upper Tribunal may not interfere with the decision [see R v (Royal College of Nursing and Others) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin)]. Further, if it is argued that a decision to include a person on a barred list is disproportionate to the relevant conduct or risk of harm relied on by the DBS, the Upper Tribunal must afford appropriate weight to the judgement of the DBS as a body enabled by statute to decide appropriateness [see SA v SB & Royal College of Nursing [2012] EWCA Civ 977]; Disclosure and Barring Service v JHB [2023] EWCA Civ 982; Kihembo v Disclosure and Barring Service [2023] EWCA Civ 1547; and Disclosure and Barring Service v RI [2024] EWCA Civ 96 [2024] 1 WLR 4033.

In considering the 2023 and 2024 cases in more detail, we note that in JHB (at paragraph 90) the Court confirmed that absent a finding of a mistake, the Tribunal is “not free to make its own assessment of the written evidence”. The latest of the Court of Appeal’s decisions is DBS v RI. In that case the Court approved the observations (in the earlier case of PF v DBS [2020] UKUT 256 (AAC)) that:

“There is no limit to the form that a mistake of fact may take. It may consist of an incorrect finding, an incomplete finding, or an omission. It may relate to anything that may properly be the subject of a finding of fact. This includes matters such as who did what, when, where and how. It includes inactions as well as actions. It also includes states of mind like intentions, motives and beliefs.

The mistake may be in a primary fact or in an inference. There was a discussion at the hearing about primary and secondary facts and about inferences. It became clear that these terms were used in different senses, so we need to make clear what we mean. A primary fact is one found from direct evidence. An inference is a fact found by a process of rational reasoning from the primary facts as a fact likely to accompany these facts. One way, but not the only way, to show a mistake is to call further evidence to show that a different finding should have been made. The mistake does not have to have been one on the evidence before the DBS. It is sufficient if the mistake only appears in the light of further evidence or consideration.”

In PF the Tribunal also confirmed that the onus is on the Appellant to show that a mistake occurred (at paragraph 51(g)). This aspect of the Tribunal’s reasoning was approved by the Court of Appeal in Kihembo at paragraph 26.

The Court in RI then proceeded to hold that an accurate description of the mistake of fact jurisdiction is:

“The Upper Tribunal is entitled to make a finding that an appellant's denial of wrongdoing is credible, such that it is a mistake of fact to find that she did the impugned act. In so doing, the Upper Tribunal is entitled to hear oral evidence from an appellant and to assess it against the documentary evidence on which the DBS based its decision. That is different from merely reviewing the evidence that was before the DBS and coming to different conclusions (which is not open to the Upper Tribunal)”.

A feature of this is that any mistake of fact must be material to the ultimate decision meaning that it may have changed the outcome of the decision (ME v Disclosure and Barring Service [2022] UKUT 63 (AAC); R (Royal College of Nursing and others) v SSHD [2010] EWHC 2761 (Admin) at paragraph 102).