Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 377 (AAC)

Fecha: 23-Sep-2024

The statutory framework

The statutory framework

The Safeguarding Vulnerable Groups Act 2006 (‘the Act’) section 2 requires the DBS to maintain the children and the adults’ barred list. By virtue of section 2, Schedule 3 applies for the purpose of determining whether an individual is included in the lists.

Section 3 provides that a person is barred from regulated activity relating to children, if the person is included in the child’s barred list and is barred from regulated activity relating to vulnerable adults, if the person is included in the adults’ barred list. Regulated Activity is determined in accordance with section 5 of and Schedule 4 to the 2006 Act.

Section 4 of the Act provides that:

(1)

An individual who is included in a barred list may appeal to the Upper Tribunal against—

(a)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)

a decision under paragraph 3, 5, 9 or 11 of Schedule 3 to include him in the list;

(c)

a decision under paragraph 17, 18 or 18A of that Schedule not to remove him from the list.

(2)

An appeal under subsection (1) may be made only on the grounds that DBS has made a mistake—

(a)

on any point of law;

(b)

in any finding of fact which it has made and on which the decision mentioned in that subsection was based.

(3)

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.

(4)

An appeal under subsection (1) may be made only with the permission of the Upper Tribunal.

(5)

Unless the Upper Tribunal finds that DBS has made a mistake of law or fact, it must confirm the decision of DBS.

(6)

If the Upper Tribunal finds that DBS has made such a mistake it must—

(a)

direct DBS to remove the person from the list, or

(b)

remit the matter to DBS for a new decision.

(7)

If the Upper Tribunal remits a matter to DBS under subsection (6)(b)—

(a)

the Upper Tribunal may set out any findings of fact which it has made (on which DBS must base its new decision); and

(b)

the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise.

‘Relevant conduct’ is defined under paragraphs 4 and 10 of Schedule 3 to the Act which are set out below, paragraph 4 relating to the children’s list and paragraph 10 relating to the adults’ list:

4(1) For the purposes of paragraph 3 relevant conduct is—

(a)

conduct which endangers a child or is likely to endanger a child; (b) conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him;

(c)

conduct involving sexual material relating to children (including possession of such material);

(d)

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;

(e)

conduct of a sexual nature involving a child, if it appears to DBS that the conduct is inappropriate.

10(1) For the purposes of paragraph 9 relevant conduct is—

(a)

conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult;

(b)

conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him;

(c)

conduct involving sexual material relating to children (including possession of such material);

(d)

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;

(e)

conduct of a sexual nature involving a vulnerable adult, if it appears to DBS that the conduct is inappropriate.