[2025] UKUT 029 (AAC)

The appellant appeals under section 4 of the Safeguarding Vulnerable Groups Act 2006 (SVGA 2006) against the decision of the Disclosure and Barring Service (DBS) of 5 January 2024 including her in the children’s barred list pursuant to paragraph 3 of Schedule 3 to the SVGA 2006. DBS had considered it appropriate and proportionate to include the appellant on the barred list in the light of its conclusion that, while working as an early years practitioner at a preschool, the appellant pulled a 4-year-old child by the hair in response to him pulling her hair.

The judge granted permission to appeal in a decision sent to the parties on 24 June 2024, the material part of which was as follows:-

15.

In this case, the appellant was included on the barred list because DBS

concluded that she had pulled a four-year-old child’s hair in response to the child pulling her hair. DBS considered there was a risk that she would in future “be likely to make poor choices or struggle to cope with certain behaviours, resulting in acting in a way that would be harmful to children, with a lack of regard for this impact”. DBS’s assessment of future risk appears to have been based not simply on the hair pulling but on various remarks that it was satisfied she had made to other staff, including expressing frustration about the lack of ‘consequences’ for children at the school and saying “what else was I supposed to do” when challenged about it.

16.

The appellant denies the incident and the remarks. She appeals on the grounds set out in the grounds of appeal. Using the statutory language, the appellant appears to me to be raising grounds based principally on mistake of fact.

17.

However, she also raises arguments that may be categorised as errors of law (essentially procedural errors) in terms of reliance by DBS on anonymous witness statements, hearsay, failure to obtain CCTV evidence and failure to deal with her representations as to the reasons why staff members may have made up allegations against her.

18.

The appellant also, as I read the grounds of appeal, argues that the barring decision was disproportionate given that “there has been no previous or subsequent issue with [her] performance that would demonstrate a pattern of concerns to appropriately justify a decision”. That should be regarded a separate error of law ground.

19.

All of the appellant’s grounds seem to me to be reasonably arguable. There is, it seems to me, a realistic prospect that the Upper Tribunal, after hearing/receiving evidence, will conclude that DBS made a mistake in some aspect of the material facts and/or that the Upper Tribunal will consider the decision to bar was disproportionate in this case.

The structure of this decision is as follows:-

The reasons for the Rule 14 Order are set out in an Annex to this decision.