Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 440 (AAC)

Fecha: 23-Ago-2024

The Case Law

The Case Law

19.

In respect of mistake of fact pursuant to SVGA 2006 S.4(2)(b) the law in this area is comprehensively set out in a series of Court of Appeal cases: AB v DBS (2021) EWCA Civ. 1575; Kihembo v DBS (2023) EWCA Civ. 1574; DBS v JHB (2023) EWCA Civ. 982; and DBS v RI [2024] EWCA Civ. 95. In summary:

(i)

The case of PF represents the law.

(ii)

The Upper Tribunal is entitled to make a finding that an appellant’s denial of wrongdoing is credible, such that it is a mistake of fact to find that he/she did the impugned act. In so doing, the Upper Tribunal is entitled to hear oral evidence from an appellant and to assess it against the documentary evidence on which the DBS based its decision. That is different from merely reviewing the evidence that was before the DBS and coming to different conclusions (which is not open to the Upper Tribunal).

(iii)

Any mistake of fact must be material to the decision.

(iv)

The UT needs to distinguish carefully a finding of fact from value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness.

(v)

The UT should remit back if the appeal is allowed unless no other decision but removal from the Adults Barred List and Childrens’ Barred List is permissible following the UT’s decision.

20.

An assessment of risk however is generally speaking for the DBS and what is and is not a fact should be considered with care. In DBS v AB (2021) EWCA Civ. 1575 Lewis LJ at para 55 stated:

“the Upper Tribunal may set out findings of fact. It will need to distinguish carefully a finding of fact from value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness. The Upper Tribunal may do the former but not the latter. By way of example only, the fact that a person is married and the marriage subsists may be a finding of fact. A reference to a marriage being a "strong" marriage or a "mutually-supportive one" may be more of a value judgment rather than a finding of fact. A reference to a marriage being likely to reduce the risk of a person engaging in inappropriate conduct is an evaluation of the risk. The third "finding" would certainly not involve a finding of fact.”