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The legislation
The legislation
There are several ways under Schedule 3 to the 2006 Act in which a person may be included on one or other of the two barred lists. This appeal is concerned with what might be described as discretionary barring, on the basis of “relevant conduct” – in effect their past behaviour.
The basis for a “relevant conduct” barring decision is set out in Schedule 3 to the 2006 Act. Paragraphs 9 and 10 of Schedule 3 are as follows:
This paragraph applies to a person if–
it appears to DBS that the person [—]
[ (i) has (at any time) engaged in relevant conduct, and
is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults, and]
DBS proposes to include him in the adults' barred list.
DBS must give the person the opportunity to make representations as to why he should not be included in the adults' barred list.
DBS must include the person in the adults' barred list if–
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 vulnerable adults, and]
it [ is satisfied] that it is appropriate to include the person in the list.
10 (1) For the purposes of paragraph 9 relevant conduct is–
conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult;
conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him;
conduct involving sexual material relating to children (including possession of such material);
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;
conduct of a sexual nature involving a vulnerable adult, if it appears to DBS that the conduct is inappropriate.
A person's conduct endangers a vulnerable adult if he–
harms a vulnerable adult,
causes a vulnerable adult to be harmed,
puts a vulnerable adult at risk of harm,
attempts to harm a vulnerable adult, or
incites another to harm a vulnerable adult.
“Sexual material relating to children” means–
indecent images of children, or
material (in whatever form) which portrays children involved in sexual activity and which is produced for the purposes of giving sexual gratification.
“Image” means an image produced by any means, whether of a real or imaginary subject.
A person does not engage in relevant conduct merely by committing an offence prescribed for the purposes of this sub-paragraph.
For the purposes of sub-paragraph (1)(d) and (e), DBS must have regard to guidance issued by the Secretary of State as to conduct which is inappropriate.
Section 4 SVGA contains the Upper Tribunal’s jurisdiction and powers, as follows:
Appeals
An individual who is included in a barred list may appeal to the Upper Tribunal against–
…
a decision under paragraph 2, 3, 5, 8, 9 or 11 of Schedule 3 to include him in the list;
…
An appeal under subsection (1) may be made only on the grounds that DBS has made a mistake–
on any point of law;
in any finding of fact which it has made and on which the decision mentioned in that subsection was based.
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.
An appeal under subsection (1) may be made only with the permission of the Upper Tribunal.
Unless the Upper Tribunal finds that DBS has made a mistake of law or fact, it must confirm the decision of DBS.
If the Upper Tribunal finds that DBS has made such a mistake it must–
direct DBS to remove the person from the list, or
remit the matter to DBS for a new decision.
If the Upper Tribunal remits a matter to DBS under subsection (6)(b)–
the Upper Tribunal may set out any findings of fact which it has made (on which DBS must base its new decision); and
the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise.
…
The routes to appeal are referred to in shorthand as ‘mistake of law’ and ‘mistake of fact’. Sub-section (3) has the effect that deciding whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact and so, in effect, is non-appealable.
- 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