[2024] UKUT 377 (AAC)

Section 4(2) of the Act sets out the limited bases for an appeal to the Upper Tribunal against a barring decision:

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.”

A person included in either barred list may appeal to the Upper Tribunal on the grounds that the DBS has made a mistake of law or a mistake of fact on which the decision was based. Any mistake of fact or law, must be material to the ultimate decision i.e. it may have changed the outcome of the decision.

The appropriateness of a person’s inclusion on either barred list is not within the Upper Tribunal’s jurisdiction on an appeal. The Upper Tribunal does, however, have jurisdiction to determine whether DBS’s decision to bar is irrational or disproportionate, because that would be an error of law.

In PF v DBS [2020] UK UT 256 (AAC), a Presidential Panel of the UT (Administrative Appeals Chamber) chaired by Farbey J said:

Section 4(2)(b) refers to a ‘mistake’ in the findings of fact made by the DBS and on which the decision was based. There is no avoiding that condition. The issue at the mistake phase is defined by reference to the existence or otherwise of a mistake.

The senior courts have recently considered the extent of the mistake of fact jurisdiction in the Upper Tribunal. The Court of Appeal stated in DBS v AB [2021] EWCA Civ 1575, with respect for the need to distinguish findings of fact from value judgments at para 55L “First, 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.”

The scope of the mistake of fact jurisdiction was also considered by the Court of Appeal in the cases of Kihembo v DBS [2023] EWCA Civ 1547 and in DBS v RI [2024] EWCA Civ 95. In both cases, the Court of Appeal confirmed that PF v DBS is good law. In RI v DBS, Bean LJ rejected the DBS’s argument that the Upper Tribunal was in effect bound to ignore an Appellant’s oral evidence unless it contains something entirely new. In paragraph 35, he stated “It is in my view open to an appellant to give evidence that she did not do the act complained of and for the UT, if it accepts that case on the balance of probabilities, to overturn the decision.” He went on to state at [37] that: “…where Parliament has created a tribunal with the power to hear oral evidence it entrusts the tribunal with the task of deciding, by reference to all the oral and written evidence in the case, whether a witness is telling the truth.”