[2024] UKUT 391 (AAC)

The DBS will have to reconsider the appropriateness and proportionality of making any fresh barring decision in light of our findings. We record our view as to the rationality and proportionality based on the original findings so as to assist them with that process. Obviously, the DBS will have to re-decide whether it is appropriate, necessary and proportionate to bar the Appellant from regulated activity with children based on the findings we have now made.

Given the findings of relevant conduct that the DBS originally made, we are satisfied it was not a “perverse” or irrational decision by DBS to have included the Appellant on the CBL at the time it made its decision. There is a high bar for perversity/irrationality challenges to barring decisions and we are satisfied that the decision to bar was neither perverse nor irrational but one the DBS was entitled to reach at that time based on the findings it made.

We next consider if there was any mistake of law in the barring decision based upon the findings made at the time on the grounds of proportionality. It is accepted that barring represents an interference with a person’s private life for the purpose of Article 8 of the European Convention on Human Rights but the question is whether it is proportionate.

In summary, the proportionality of DBS’s decisions to include individuals on the barred lists should be examined applying the tests laid down by Lord Wilson in R (Aguilar Quila) v Secretary of Stage for the Home Department [2012] 1 AC 621 at para 45:

These four questions were later developed by Lord Sumption in Bank Mellat [2013] UKSC 39 at 20:

In assessing proportionality, the Upper Tribunal has ‘…to give appropriate weight to the decision of a body charged by statute with a task of expert evaluation’ (see Independent Safeguarding Authority v SB [2012] EWCA Civ 977 at [17] as set out above). However, we must conduct our own assessment of proportionality afresh rather than simply review the DBS’s assessment.

We are satisfied that each of questions a)-d) should be answered in favour of the barring decision being proportionate based on the findings that the DBS made at the time (even though those findings are now disturbed because we have found they contained mistakes of fact).

On the basis of the findings that the DBS made in its final decision letter, we are satisfied that the DBS was entitled to conclude that it was proportionate and reasonably necessary to bar AVS in order to achieve its (important and) legitimate safeguarding aims.

There is no real question that the public interest and legislative objective of safeguarding vulnerable groups is sufficiently important to justify the interference with private life that barring constitutes and that barring is rationally connected to protecting those groups.

We are satisfied that when making the original barring decision, the DBS correctly concluded that no other measures were in place sufficient to adequately safeguard children from AVS participating in regulated activity of fostering and committing further acts of neglect or the like such that it was the least intrusive measure necessary.

We are also satisfied that barring was necessary and struck a fair balance between AVS’s right to a private life and the interests of the community. The DBS expressly carried out the “balancing act” exercise required. Based on the original findings we would have done the same. We are satisfied that the DBS was entitled to consider that the Appellant presented a risk of harm to children at the time of the decision based upon Findings 1-5 as originally made. The decision that the Appellant posed a risk of repeating similar acts at the time of the barring decision was also rational.

However, the assessment of proportionality of barring may be rather different in light of the findings we have now made.

As we have set out above, the barring decision will have to be remade on a different factual basis that only the second finding is upheld in part and fourth finding of relevant conduct is established but is substantially mitigated. It may also consider the wider connected allegations in respect of the first finding.

When reconsidering the issue of proportionality, the DBS will need to look again at applying the third and fourth stages of Aguilar Quila / Bank Mellat to this case.

When looking at the third stage and the least intrusive measure necessary, the DBS will be mindful that barring is a blunt tool. Unlike professional regulators who have a range of sanctions they can impose for disciplinary misconduct the DBS cannot make suspension or conditions of practice orders that might impose training or supervision requirements. Barring is an all or nothing outcome as far as regulated activity is concerned. In an alternative legislative landscape it might be that a condition could be imposed that the Appellant be trained if working in fostering or regulated activity generally, or that he could work in other forms of regulated activity without restriction. However, that type of order is not available under the existing legislation. We also bear in mind that there is a measure of protection already in place in that the Appellant is no longer approved to act as a foster carer so that the barring only additionally prohibits other regulated activity.

The fourth question is whether on the findings then made a fair balance would be struck between the seriousness of the findings of relevant conduct upheld, and any risk of further harm to children that can be rationally derived from it, as against the impact and effect of baring on the Appellant’s private life.

The risk assessment (of the risk that the Appellant may now pose to children if working in regulated activity) will now need to be reconducted in light of our findings of fact in relation to the relevant conduct and its impact on the likelihood of repeat occurrences. It remains a matter for the DBS to decide whether our findings, and its revised risk assessment in light of those findings, means that the public interest in safeguarding children outweighs the impact of barring upon the Appellant.

We accept that it will be for the DBS to re-decide whether barring is necessary and whether it strikes a fair balance has been the Tribunal’s findings of relevant conduct, and the DBS’s revised risk assessment. This will be balanced against the factual matrix now found as to the interference with / impact upon the Appellant’s private life and voluntary restrictions it imposes on him (not only preventing him from fostering but also progressing his ability to offer volunteering or work placements to children). If the DBS does decide that barring remains proportionate, that decision will be subject to a right of appeal and the Tribunal would then carry out its proportionality decision afresh.