[2024] UKUT 427 (AAC)

An appeal to the Upper Tribunal under section 4 of the SVGA 2006 lies only on grounds set out in sub-section (2), i.e. that DBS has, in deciding to include a person on a list or in refusing to remove a person from a list on review, made a mistake: (a) on any point of law; or (b) in any material finding of fact (cf s 4(2)). For the purposes of sub-section (2), the decision whether or not it is appropriate for an individual to be included on a barred list is not a question of law or fact.

If the Upper Tribunal finds that DBS has not made a mistake of law or fact it must confirm the decision: SVGA 2006, section 4(5). If the Upper Tribunal finds that DBS has made a mistake of law or fact, it must either direct DBS to remove the person from the list or remit the matter to DBS for a new decision: section 4(6). The Court of Appeal has held that unless the only lawful decision DBS could come to in a case, in the light of the Upper Tribunal’s decision, is removal, the Upper Tribunal must remit the case: AB v DBS [2021] EWCA Civ 1575, [2022] 1 WLR 1002at [72]-[73] per Lewis LJ. If the Upper Tribunal remits a matter to DBS then the Upper Tribunal may set out any findings of fact which it has made on which DBS must base its new decision and the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise: section 4(7).

A mistake of fact is a finding of fact that is, on the balance of probabilities, wrong in the light of any evidence that was available to the DBS or that is put before the Upper Tribunal; a finding of fact is not wrong merely because the Upper Tribunal would have made different findings, but neither is the Upper Tribunal restricted to considering only whether DBS's findings of fact are reasonable; the Upper Tribunal is entitled to evaluate all the evidence itself to decide whether DBS has made a mistake (see generally PF v DBS [2020] UKUT 256 (AAC), as subsequently approved in DBS v JHB [2023] EWCA Civ 982 at [71]-[89] per Laing LJ, giving the judgment of the Court, Kihembo v Disclosure and Barring Service [2023] EWCA Civ 1547 at [26] and DBS v RI [2024] EWCA Civ 95 at [28]-[37] per Bean LJ and at [49]-[51] per Males LJ). As the Tribunal put it in PF at [39], “There is no limit to the form a mistake of fact may take. It may consist of an incorrect finding, an incomplete finding, or an omission”. A finding of fact may be made by inference (JHB, ibid, [88]), but facts must be distinguished from "value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness [of including the person on the barred list]": AB v DBS [2021] EWCA Civ 1575, [2022] 1 WLR 1002 at [55] per Lewis LJ (giving the judgment of the court).

A mistake of law includes making an error of legal principle, failure to take into account relevant matters, taking into account irrelevant matters, material unfairness and failure to give adequate reasons for a decision. (See generally R (Iran) v SSHD [2005] EWCA Civ 982 at [9]-[11].) On ordinary administrative law principles, accordingly, “an allegation of unreasonableness has to be a Wednesbury rationality challenge, i.e. that the decision is perverse” (Khakh v ISA [2013] EWCA Civ 1341 at [18]).

However, a mistake of law also includes making a decision to include a person on a barred list that is disproportionate or otherwise in breach of that individual’s rights under Article 8 of the European Convention on Human Rights (ECHR). In ISA v SB [2012] EWCA Civ 977, [2013] 1 WLR 308 the Court of Appeal explained the approach to be taken by the Upper Tribunal as follows:

(1)

The approach to proportionality

14.

Although section 4(3) of the 2006 Act inhibits the Upper Tribunal from revisiting the question “whether or not it is appropriate for an individual to be included in a barred list”, Ms Lieven concedes, correctly in my view, that the Upper Tribunal is empowered to determine proportionality and rationality. In this regard, the passage from the judgment of Wyn Williams J in R (Royal College of Nursing) v Secretary of State for the Home Department [2011] PTSR 1193 (see para 8 above) is undoubtedly correct. Thus, the Upper Tribunal cannot carry out a full merits reconsideration. Its jurisdiction is more limited. In this respect, it is narrower than was the jurisdiction of the Care Standards Tribunal under the previous legislation.

15.

The ISA is an independent statutory body charged with the primary decision-making tasks as to whether an individual should be listed or not. Listing is plainly a matter which may engage article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Article 8 provides a qualified right which will require, among other things, consideration of whether listing is “necessary in a democratic society” or, in other words, proportionate. In R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2012] 1 AC 621 , Lord Wilson JSC summarised the approach to proportionality in such a context which had been expounded by Lord Bingham of Cornhill in Huang v Secretary of State for the Home Department [2007] 2 AC 167 , para 19. Lord Wilson JSC said, at para 45:

“in such a context four questions generally arise, namely: (a) is the legislative object sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; and (d) do they strike a fair balance between the rights of the individual and the interests of the community?”

There, as here, the main focus is on questions (c) and (d). In R (SB) v Governors of Denbigh High School [2007] 1 AC 100, para 30 Lord Bingham of Cornhill explained the difference between such a proportionality exercise and traditional judicial review in the following passage:

“There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test … The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time … Proportionality must be judged objectively by the court.”

16.

All that is now well established. The next question—and the one upon which Ms Lieven focuses—is how the court, or in this case the Upper Tribunal, should approach the decision of the primary decision-maker, in this case the ISA. Whilst it is apparent from authorities such as Huang's case and Aguilar Quila's case that it is wrong to approach the decision in question with “deference”, the requisite approach requires (per Lord Bingham in Huang's case [2007] 2 AC 167 , para 16, and see, to like effect, Lord Wilson JSC in Aguilar Quila's case [2012] 1 AC 621 , para 46):

“the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice.”

There is, in my judgment, no tension between those passages and the approach seen in Belfast City Council v Miss Behavin' Ltd [2007] 1 WLR 1420 which was concerned with a challenge to the decision of the city council to refuse a licensing application for a sex shop on the grounds that the decision was a disproportionate interference with the claimant's Convention rights. Lord Hoffmann said, at para 16:

“If the local authority exercises that power rationally and in accordance with the purposes of the statute, it would require very unusual facts for it to amount to a disproportionate restriction on Convention rights.”

Baroness Hale of Richmond added, at para 37:

“Had the Belfast City Council expressly set itself the task of balancing the rights of individuals to sell and buy pornographic literature and images against the interests of the wider community, a court would find it hard to upset the balance which the local authority had struck.”

These passages are illustrative of the need to give appropriate weight to the decision of a body charged by statute with a task of expert evaluation.

17.

Ms Lieven's first complaint is that the Upper Tribunal failed to accord appropriate weight to the decision of the ISA. The 16-page decision of the Upper Tribunal was undoubtedly the product of a careful and conscientious consideration. However, it seems to me that the Upper Tribunal did not accord any particular weight to the decision of the ISA but proceeded to a de novo consideration of its own….

20.

The assessment of the ISA caseworker was itself a careful compilation produced on a template headed “Structured judgment process” which tabulated “indications” and “counter indications” in adjacent columns. Moreover, examination of that assessment and the decision which it informed suggests to me that the conclusion of the Upper Tribunal that the ISA had failed to take account of “the wealth of evidence” that SB imposes a low risk of reoffending and “gave no weight or at least very little weight, to the issue of [him] as a person” was simply erroneous. The “wealth of evidence” seems to relate to the numerous positive references but it is apparent that these were taken into account in the caseworker's assessment and in the decision of the ISA. The assessment was a fair representation of the many indications and counter indications and specific mention was made of the numerous references and the fact that SB had voluntarily sought counselling.

21.

This brings me to two particular points. First, there is the fact that, unlike the ISA, the Upper Tribunal saw and heard SB giving evidence. However, it cannot be suggested that it was unlawful for the ISA not to do so. It had had at its disposal a wealth of material, not least the material upon which the criminal conviction had been founded and which had informed the sentencing process. The objective facts were not in dispute. Secondly, Mr Ian Wise QC, on behalf of the RCN, emphasises the fact that the Upper Tribunal is not a non-specialist court reviewing the decision of a specialist decision-maker, which would necessitate the according of considerable weight to the original decision. It is itself a specialist tribunal. Whilst there is truth in this submission, it has its limitations for the following reasons: (1) unlike its predecessor, the Care Standards Tribunal, it is statutorily disabled from revisiting the appropriateness of an individual being included in a barred list, simpliciter; and (2) whereas the Upper Tribunal judge is flanked by non-legal members who themselves come from a variety of relevant professions, they are or may be less specialised than the ISA decision-makers who, by paragraph 1(2)(b) of schedule 1 to the 2006 Act, “must appear to the Secretary of State to have knowledge or experience of any aspect of child protection or the protection of vulnerable adults”. I intend no disrespect to the judicial or non-legal members of the Upper Tribunal in the present or any other case when I say that, by necessary statutory qualification, the ISA is particularly equipped to make safeguarding decisions of this kind, whereas the Upper Tribunal is designed not to consider the appropriateness of listing but more to adjudicate upon “mistakes” on points of law or findings of fact: see section 4(3) of the 2006 Act.

22.

For all these reasons I consider that the complaint that the Upper Tribunal did not accord “appropriate weight” to the decision of the ISA is justified.

The Court of Appeal’s approach in SB was approved and followed by the Court of Appeal in DBS v Harvey [2013] EWCA Civ 180. In this appeal, DBS has drawn our attention to three later decisions of the Upper Tribunal where at first blush it appears that divergent approaches have been taken to the issue of proportionality (KB v DBS [2021] UKUT 325, at [130]-[135], panel chaired by Judge Jones; WW v DBS [2023] UKUT 241 (AAC), at [55], panel chaired by Judge Wikeley; and NV v DBS [2024] UKUT 42, at [38], panel chaired by Judge Wright). A three-judge panel of the Upper Tribunal is accordingly being listed for early in 2025 to consider the proper approach to the question of proportionality in appeals against DBS decisions in the case of KS v DBS (UA-2024-000839-V). It has not, however, been suggested that we should stay consideration of this case pending that decision, and we do not consider it necessary to do so. Pending the decision in KS, it seems to us that we should in this case continue to apply the approach laid down by the Court of Appeal in SB and Harvey, the ratio of those decisions being in any event binding on us. We note that this was also the approach recently taken by the Upper Tribunal chaired by Judge Brunner KC in MFAG v DBS [2024] UKUT 330 (AAC) at [24]-[27]. The Upper Tribunal in that case also referred to the decision of the Court of Appeal in Dalston Projects and ors v Secretary of State for Transport [2024] EWCA Civ 172 which affirms the “well-established” principle that the question of whether an act is incompatible with a Convention right is a question of substance for the court itself to decide.

We do, however, add the following further observations as regards the passage from SB that we have set out above.

First, the Court of Appealwas in SB concerned to emphasise the expertise of the Independent Safeguarding Authority (ISA, DBS’ predecessor) and the importance of weight being given to the views of ISA as the primary decision-maker under the statutory scheme. As was pointed out by the Upper Tribunal chaired by Judge Wikeley in CM v Disclosure and Barring Service [2015] UKUT 707 (AAC) at [59]-[64], however, it is not clear that the Court of Appeal in SB had its attention drawn to the Practice Statement on the Composition of Tribunals in relation to matters that fall to be decided by the Administrative Appeals Chamber of the Upper Tribunal on or after 26^th March 2014 which sets out the requirements as to the expertise of Upper Tribunal lay panel members. We agree with the Upper Tribunal in CM that, once that Practice Statement is considered, the Court of Appeal’s suggestion that there is a relevant difference between the expertise of DBS decision-makers and lay panel members of the Upper Tribunal is undermined. To use the Latin phrase, it seems to us that the Court of Appeal’s observation on the relative expertise of Upper Tribunal panel members and DBS decision-makers may be regarded as being per incuriam.

Secondly, DBS as a matter of practice makes its decisions on the papers alone, whereas the Upper Tribunal has the benefit of a hearing with witness evidence. While the Court of Appeal in SB rightly noted (at [21]) that it was not an error of law for DBS not to hold a hearing, it also seems to us to be important to remember, when considering the approach we should take, that the hearing before the Upper Tribunal in DBS cases is the “fair and public hearing … by an independent and impartial tribunal” with “full jurisdiction” which secures that the barring scheme under the SVGA 2006 is compliant with Article 6 of the European Convention on Human Rights. The appellant has a civil right to practise her profession and to work with children/vulnerable adults: see R (G) v Governors of X School [2011] UKSC 30, [2012] 1 AC 167 at [33]. In that case, which concerned whether Article 6 applied to the employer’s internal disciplinary proceedings stage of the process, the Supreme Court proceeded on the assumption that the barring scheme as operated by what is now DBS, together with the right of appeal to the Upper Tribunal, ensured compliance with Article 6: see [84] per Lord Dyson, [94] per Lord Hope and [101] per Lord Brown. (We have not set those paragraphs out in this judgment because there is no need to do so, but we add for the benefit of anyone who troubles to make the cross-reference that the point that the Supreme Court is ‘not deciding’ in those paragraphs is the more complex argument as to whether, if Article 6 had been held to apply to the employer’s internal disciplinary proceedings in that case, the lack of procedural safeguards in the internal disciplinary proceedings, could have been ‘cured’ by the subsequent decision-making processes of the ISA and appeal to the Upper Tribunal. The Supreme Court’s decision seems to us to leave no room for doubt that including someone on a barred list is a determination of their civil rights and thus one to which Article 6 applies and in respect of which the appeal to the Upper Tribunal must be one where the Upper Tribunal has “full jurisdiction” over fact and law in order to secure compliance with Article 6.)

We mention this point about Article 6 because it underscores for us the importance of what the Court of Appeal said in SB at [15] (citing R (SB) v Governors of Denbigh High School) about proportionality being a matter for objective assessment by the Upper Tribunal. Due weight must be given to the views of DBS given its role as the primary statutory decision-maker, reinforced by the statutory prescription in section 4(3) that the question of whether it is appropriate for someone to be included in a list is not a question of fact or law in this context. However, it is ultimately for the Upper Tribunal as a court of full jurisdiction to determine whether the inclusion of a person on a barred list is or is not proportionate and compatible with their Convention rights.

In short summary, therefore, the approach we have to apply to this case to the appellant’s proportionality argument is as follows:-