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The decision of the Upper Tribunal is to allow the appeal of the Appellant
The decision of the Upper Tribunal is to allow the appeal of the Appellant.
The decision of the Disclosure and Barring Service taken on 20 June 2022 to include the Appellant’s name on the Children’s Barred List was based upon material mistakes in findings of fact in relation to findings of relevant conduct. The decision of the DBS is therefore remitted for a new decision under section 4(6)(b) of the Safeguarding Vulnerable Groups Act 2006 based upon the findings we have made for the purposes of section 4(7)(a). The Appellant is to remain on the list pending the fresh decision being made pursuant to section 4(7)(b) of the Act.
The Upper Tribunal makes anonymity orders directing that there is to be no publication of any matter or disclosure of any documents likely to lead members of the public directly or indirectly to identify the Appellant, witnesses, complainants or any person who has been involved in the circumstances giving rise to this appeal. The anonymity order and directions are made rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
Introduction
The Appellant (also referred to as ‘AVS’) appeals to the Upper Tribunal against the decision of the Respondent (the Disclosure and Barring Service or ‘DBS’) dated 20 June 2022 to include his name on the Children’s Barred List (‘CBL’) pursuant to paragraph 3 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (“the Act”).
Permission to appeal to the Upper Tribunal (‘UT’ or ‘the Tribunal’) was granted by the Judge on 21 November 2023 in respect of the grounds raised by the Appellant in the notice of appeal. In summary, the grounds of appeal were that each of the findings that the Appellant committed relevant conduct were based on mistakes of fact and a mistake of law – the DBS made an irrational and / or disproportionate decision to bar the Appellant from working with children.
The Tribunal held an in-person oral hearing of the appeal at the Rolls Building on 30 September 2024. The Judge, witnesses, counsel and the Appellant attended in person. The Tribunal members attended remotely by video with the consent of the parties after the Judge had been satisfied that it was just and fair to proceed in this manner.
The Appellant was represented by Laura Bayley of counsel who made written and oral submissions prior to and during the hearing. She filed post hearing submissions on 7 October 2024. The Respondent (the DBS) was represented at the hearing by Ashley Serr of counsel who made written and oral submissions. We are grateful to them both for the quality of their submissions which have assisted us in considering and determining the issues in dispute.
- Heading
- The decision of the Upper Tribunal is to allow the appeal of the Appellant
- Rule 14 Anonymity Orders and directions
- The Background
- "Based on the enclosed information, it appears, on the balance of probabilities, that
- Fostering review meeting minutes, 27 January 2022
- Character references
- The Respondent’s barring decision dated 20 June 2022
- Findings of Relevant Conduct
- The material relied upon by the DBS at the time of barring in support of the findings of relevant conduct
- Contacting DM between 25/5/21 and 12/821
- Waking DM early and bringing him to work
- Failing to dispose of medication with which DM then overdosed 6/6/21
- Showing pornography et al in 2018
- Failed to sit at hospital with [DM] on the morning of 24/25 May 2021, as alleged or at all
- Failed to dispose of medication which DM no longer required, as alleged or at all
- Shared with DM his wishes for the outcome of the D[] Children's Services Trust investigation Caused DM physical and/or emotional harm
- Came to conclusions based on inferences that it was not entitled to draw from the evidence Came to a barring decision that was, in all the circumstances, disproportionate
- The decision to include the Appellant on the Children's Barred List was, in all the circumstances, disproportionate Law
- it is satisfied that the person has engaged in relevant conduct, and
- it is satisfied that it is appropriate to include the person in the list
- on any point of law
- If the [ Upper] Tribunal remits a matter to [DBS] under subsection (6)(b)–
- a. “on any point of law” (section 4(2)(a) of the Act)
- remit the matter to DBS for a new decision
- DBS’s submissions
- No material mistake of fact
- The decision was disproportionate
- Transferability/Proportionality
- Conclusions on the Appeal
- Discussion: Findings of Fact and Analysis of grounds of appeal
- The Appellant’s evidence
- Post Hearing application for the admission of late evidence
- The Appellant’s representations from 3 June 2021 and assessment of his reliability
- Ground 1
- Finding 2: On dates between 25 May 2021 and 12 August 2021 you continued to contact DM, aged 15, despite having being [sic] re-quested not to for the wellbeing of DM following DM being removed from yo
- Finding 3: On dates between 20 August 2020 and 24 May 2021, you woke DM, aged 15, at 5.30 a.m. on mornings before school, bringing him to work with you and having him complete work/school work prior t
- Finding 4: On a date prior to 25 May 2021 you failed to dispose of medication which DM, aged 15, no longer required, leaving remaining medication in DM's possession who subsequently took an overdose o
- Finding 5: On a date in 2018, you showed a pornographic image of oral sex that you had as your computer screensaver, showed an air gun and pellets in your drawer, and repeatedly asked three school gir
- Conclusions on mistakes of fact in five findings of relevant conduct
- Erroneous Inferences – Appellant submissions
- Remedy – Remittal to the DBS pursuant to section 4(6) (b) & 7 of the Act
- Mistake of Law - Proportionality
- Appellant’s submissions on Proportionality
- Discussion
- Conclusions