[2024] UKUT 270 (AAC)

The second permitted ground concerned whether DBS’s decision, to bar JI, was disproportionate when considered in the context of all relevant and accurate facts. In terms of what those facts were, as at the time of DBS’s decision (which we consider the correct time at which to adjudge whether DBS’s decision was proportionate or not) we would include

The parameters of the law here are relatively settled: a disproportionate decision is a mistake on a point of law; but DBS’s decision as to the appropriateness of including someone in a barred list is not a question of law. The main authority put before us on the subject, B v ISA (RNC intervening) 2013 1 WLR 308, [2012] EWCA Civ 977, focused on the third and fourth of the classic questions arising in assessing proportionality: (a) the measure being no more than is necessary to accomplish the legislative object (here, safeguarding children and vulnerable adults) and (b) does the measure strike a fair balance between the rights of the individual and the interests of the community?; the case described (at [16]) the “requisite approach” as requiring “the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgement of a person with responsibility for a given subject matter and access to special sources of knowledge and advice”. The judgement there noted “the need to give appropriate weight to the decision of a body charged by statute with a task of expert evaluation”. It also said, at [24], that public confidence (in safeguarding children and vulnerable adults) “must be placed in the scales” and “will always be a material consideration”.

Bearing in mind that inclusion in the children’s barred list is the tool at DBS’s disposal to deal with safeguarding risks to children, the essential exercise is to weigh up the adverse consequences to JI of her being included in the children’s barred list, against the safeguarding risks of her working with children. DBS’s opinion was that the safeguarding risks were material, principally because of what DBS perceived as JI’s poor problem solving and coping skills; DBS was also concerned, when making its decision, about JI’s not seeing a connection between her mental health difficulties and her actions on the day in question (JI took this position in the detailed letter she wrote to DBS on 20 September 2021, shortly before DBS’s decision). Given that assessing risk to safeguarding children is DBS’s core expertise, we are inclined to give DBS’s views on this significant weight in the balancing exercise; and, together with the public interest in safeguarding children, in our view that risk fairly outweighed, at the time of DBS’s decision, the personal detriment to JI, in not being able to pursue her desired career in working with children. We conclude that DBS did not make a mistake on a point of law, by making a disproportionate decision.