[2025] UKUT 221 (AAC)

A person included in a barred list maintained under the 2006 Act may appeal to the Upper Tribunal against the DBS’ barring decision (section 4(1) of the Act). An appeal may only be made on the grounds that the DBS made a mistake on any point of law, or in any finding of fact on which the barring decision was based (section 4(2)). Section 4(3) provides that “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”. In other words, there is no right of appeal against DBS’ decision that it is appropriate for a person to be included in a barred list.

While the 2006 Act provides no right of appeal against a DBS decision that it is appropriate to include a person in a barred list, that does not exclude a right of appeal on the ground that barring a particular person is disproportionate. However, in assessing proportionality the Upper Tribunal must accord appropriate weight to the decision of the barring authority “as the body particularly equipped to make safeguarding decisions” (B v Independent Safeguarding Authority [2013] 1 WLR 308).

In AB the Court of Appeal held, at [43], that, absent a legal or factual flaw in a barring decision, “the assessment of the risk presented by the person concerned, and the appropriateness of including him in a list…is a matter for the DBS”. This was reflected in the Court of Appeal’s decision in Disclosure & Barring Service v JHB [2023] EWCA Civ 982 where it said, “there is a distinction between the assessment of the evidential material on which a finding of fact is or might be based, and an assessment or value judgment, such as an assessment of risk, which is based on findings of fact which have already been made”. A disagreement about the evaluation of the evidence is not an error of fact, and if the DBS makes a finding of fact that was open to it on the balance of probabilities it does not make a mistake of fact (JHB at [93]).

Regarding the credibility of evidence given in proceedings before the Upper Tribunal (typically oral evidence given by the barred person), in Disclosure & Barring ServicevRI [2024] EWCA Civ 95 the Court of Appeal, at [29], approved the following formulation:

In AB, the Court of Appeal ruled, at [55], in relation to the Upper Tribunal’s oversight of DBS fact-finding, that the Upper Tribunal “will need to distinguish carefully a finding of fact from value judgements or evaluations of the relevance or weight to be given to the fact in assessing appropriateness”. A conclusion that a certain matter is likely to reduce the risk of inappropriate conduct is a value judgement rather than a finding of fact.

In PF v DBS [2020] UKUT 256 (AAC) a Presidential Panel of the Upper Tribunal said, at [43], that, on appeal, the Upper Tribunal could hear evidence that was not before the DBS. If the Upper Tribunal heard no new evidence, the DBS’ decision “might well be the starting point” [49]. If the Upper Tribunal heard significant new evidence, the DBS’ evaluation of the evidence would probably be ‘overtaken’, so that “the only appropriate approach for the UT would be to start afresh” [49]. PF was applied by the Court of Appeal in JHB in which it held, at [90] that, in a case where the Upper Tribunal heard “very limited evidence” so that the DBS’ decision was the ‘starting point’, the Tribunal was not free to make its own assessment of the written evidence unless and until it found an error of fact or law.

In JHB, the Court of Appeal said:

“95…the UT understood the DBS's reliance on paragraph 2 of Volpi v Volpi [[2022] EWCA Civ 464] as a submission that, in order to show that there has been 'a mistake of fact' it is necessary to show that there was no evidence to support that finding, or that it was irrational. I agree with the UT that if that were the position, section 4(2)(b) would be redundant. But, in my judgment, that is not the position on an appeal such as this, for two reasons. First, a finding may be 'wrong' for this purpose, even if there was some evidence to support it, or it was not irrational, as the reasoning in Indrakumar and Subesh shows. Second, a finding may also be 'wrong' for the purposes of section 4(2)(b) if it is a finding about which the UT has heard evidence which was not before the DBS, and that new evidence shows that a finding by the DBS was wrong, as the UT itself explained in PF (see paragraphs 63-65, above)…”.

In RI, the Court of Appeal was of the view that the ratio of JHB was “difficult to discern’. Bean LJ said:

“33…I venture to suggest that it [JHB] may be authority for the proposition that if the UT has exactly the same material before it as was before the DBS, then the tribunal should not overturn the findings of the DBS unless they were irrational or there was simply no evidence to justify the decision. The same rule may apply where, as in the JHB case itself, oral evidence is given but not on matters relevant to the decision to place the appellant on one or both of the Lists.”

Within Part 1 of Schedule 3 to the 2006 Act, paragraph 3 requires DBS, once it has given an individual the opportunity to make representations against barring, to include the individual on the children’s barred list if satisfied that the individual has engaged in “relevant conduct”, has reason to believe that the individual might in the future be engaged in regulated activity relating to children and is satisfied that it is appropriate to include the individual in the list. The definition of “relevant conduct” in paragraph 4 of Schedule 3 includes conduct which endangers a child.

Part 2 of Schedule to the 2006 Act enacts, in relation to the vulnerable adults’ barred list, similar provisions to those just described in relation to the children’s list. Part 2’s definition of “relevant conduct” includes “conduct which, if repeated against…a vulnerable adult, would endanger that adult or be likely to endanger him” (paragraph 10(b)).