Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 126 (AAC)

Fecha: 18-Abr-2024

C: Law

C: Law

Legislation

56.

The relevant legislation is in the Safeguarding Vulnerable Groups Act 2006 (“the 2006 Act”). 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. So paragraphs 3 and 4 of Schedule 3 to the 2006 Act are relevant.

57.

Section 2 of the 2006 Act provides—

“2.—(1) DBS must maintain—

(a)

the children's barred list;

(b)

the adults' barred list.

(2)

Part 1 of Schedule 3 applies for the purpose of determining whether an individual is included in the children's barred list.

(3)

Part 2 of that Schedule applies for the purpose of determining whether an individual is included in the adults' barred list.

(4)

Part 3 of that Schedule contains supplementary provision.

(5)

In respect of an individual who is included in a barred list, DBS must keep other information of such description as is prescribed.”.

58.

Paragraphs 3 and 4 of Schedule 3 to the 2006 Act provide—

“Behaviour

3 (1) This paragraph applies to a person if—

(a)

it appears to DBS that the person—

(i)

has (at any time) engaged in relevant conduct, and

(ii)

is or has been, or might in future be, engaged in regulated activity relating to children, and

(b)

DBS proposes to include him in the children's barred list.

(2)

DBS must give the person the opportunity to make representations as to why he should not be included in the children's barred list.

(3)

DBS must include the person in the children's barred list if—

(a)

it is satisfied that the person has engaged in relevant conduct,

(aa) it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children, and

(b)

it is satisfied that it is appropriate to include the person in the list.

[…]

4 (1) For the purposes of paragraph 3 relevant conduct is—

(a)

conduct which endangers a child or is likely to endanger a child;

(b)

conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him;

(c)

conduct involving sexual material relating to children (including possession of such material);

(d)

conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to DBS that the conduct is inappropriate;

(e)

conduct of a sexual nature involving a child, if it appears to DBS that the conduct is inappropriate.

(2)

A person's conduct endangers a child if he—

(a)

harms a child,

(b)

causes a child to be harmed,

(c)

puts a child at risk of harm,

(d)

attempts to harm a child, or

(e)

incites another to harm a child.”.

59.

Section 4 of the 2006 Act governs appeals. Section 4 provides—

“4.—(1) An individual who is included in a barred list may appeal to the Upper Tribunal against—

(a)

[repealed];

(b)

a decision under paragraph 2, 3, 5, 8, 9 or 11 of Schedule 3 to include him in the list;

(c)

a decision under paragraph 17, 18 or 18A of that Schedule not to remove him from the list.

(2)

An appeal under subsection (1) may be made only on the grounds that DBS has made a mistake—

(a)

on any point of law;

(b)

in any finding of fact which it has made and on which the decision mentioned in that subsection was based.

(3)

For the purposes of subsection (2), 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.

(4)

An appeal under subsection (1) may be made only with the permission of the Upper Tribunal.

(5)

Unless the Upper Tribunal finds that DBS has made a mistake of law or fact, it must confirm the decision of DBS.

(6)

If the Upper Tribunal finds that DBS has made such a mistake it must—

(a)

direct DBS to remove the person from the list, or

(b)

remit the matter to DBS for a new decision.

(7)

If the Upper Tribunal remits a matter to DBS under subsection (6)(b)—

(a)

the Upper Tribunal may set out any findings of fact which it has made (on which DBS must base its new decision); and

(b)

the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise.”.