![[2024] UKUT 247 (AAC)](https://backend.juristeca.com/files/emisores/logo_3a2BKne.png){kind=logo}
Conclusions
Our conclusions
We consider that the balance of probabilities favours DL. We have come to that conclusion after considering the evidence as a whole including the significant new material which we had which DBS was not in possession of.
We find that DL did not borrow money, or fail to pay it back or ask to borrow more. It follows that we find that DBS made a mistake of fact in so finding.
In light of this result, it seems to us unnecessary to consider arguments relating to the mistakes on points of law raised by the appellant, and we do not do so.
Result
Given our finding that DBS’s factual findings were mistaken in relation to the only matter relied on, it seems to us the only decision that DBS could lawfully reach would be to remove the appellant from the barred list.
The powers of the Upper Tribunal when it finds an error of law or fact were considered in AB v Disclosure and Barring Service [2021] EWCA Civ 1575, in which case the Court held that ‘…the Upper Tribunal should direct removal only if it is satisfied that that is the only decision the DBS could lawfully make if the case were remitted to it.’ (per Lewis LJ at para. 75).
This case is on all fours with the example given by the Court of Appeal in that case at [73]
… The DBS may have considered that a person had been found to have engaged in sexually inappropriate conduct on one occasion with a child. If, on the facts, it transpired that the conduct had not in fact occurred (or the respondent had wrongly been identified as the person responsible) and the person had not been guilty of the conduct, there would be no basis for including that person in a barred list and the Upper Tribunal could direct removal.
It follows that we have directed DBS to remove the appellant from the barred list.
Kate Brunner KC John Hutchinson Suzanna Jacoby Authorised for issue 12 August 2024 |
- Heading
- The appeal is allowed
- Reasons for Decision
- ‘I acknowledge that those advising the appellant wish the Upper Tribunal to consider the issue of whether the respondent’s decision was proportionate
- The legislation
- Mistake of fact
- ‘Drawing the various strands together, we conclude as follows In those narrow but well-established circumstances in which an error of fact may give rise to an error of law, the tribunal has jurisdiction to interfere with a decision of the DBS under s
- In relation to factual mistakes, the tribunal may only interfere with the DBS decision if the decision was based on the mistaken finding of fact. This means that the mistake of fact must be material t
- In determining whether the DBS has made a mistake of fact, the tribunal will consider all the evidence before it and is not confined to the evidence before the decision-maker. The tribunal may hear or
- The tribunal has the power to consider all factual matters other than those relating only to whether or not it is appropriate for an individual to be included in a barred list, which is a matter for t
- The tribunal will not defer to the DBS in factual matters but will give appropriate weight to the DBS’s factual findings in matters that engage its expertise. Matters of specialist judgment relating t
- The starting point for the tribunal’s consideration of factual matters is the DBS decision in the sense that an appellant must demonstrate a mistake of law or fact. However, given that the tribunal ma
- ‘One way, but not the only way, to show a mistake is to call further evidence to show that a different finding should have been made. The mistake does not have to have been one on the evidence before
- ‘On the reasoning in PF, the decision of the DBS was therefore the starting point for the UT’s consideration of the appeal. JHB did not claim that DBS has erred in law. The UT could not exercise any p
- ‘28. I agree with the observation that there is no longer any point of legal principle raised by this appeal which requires determination by the court, but I do not accept that the parties are in agre
- Section 17
- Analysis of Evidence: general
- Document 1 at page 59
- Document 2 p69
- Document 3 p70
- Document 4 p 71
- Document 5 page 29 This is the investigating officer’s report and we make the following observations
- Document 6 p47
- We make the following observations about that material
- Document 7 care records
- We noted the following significant relevant information
- Our conclusions about reliability relating to JG
- Documents gathered in the investigation relating to DL's account Documents 8, material relating to the disciplinary proceedings
- Document 9, p28
- Document 10. Notes of interview of DL by the investigating officer
- DL’s representations to DBS p75
- Document 11, representations from Citizens Advice 25th of February 2021
- Our findings in relation to DL's reliability
- Conclusions