[2025] UKUT 329 (AAC)

We shall deal with Ground 2 first.

We recognise that, under section 4(3) of the 2006 Act, the decision whether it is appropriate for an individual to be included in a barred list may not be challenged on appeal to the Upper Tribunal. We also recognise that AB, which binds the Upper Tribunal, held that “unless the decision of the DBS is legally or factually flawed, the assessment of the risk presented by the person concerned…is a matter for the DBS”. However, we do not accept that these limitations on the Upper Tribunal’s jurisdiction permit DBS to make barring decisions that are inadequately reasoned. Had that been Parliament’s intention, we would have expected the 2006 Act to include express provision along the lines of ‘the question whether DBS have given adequate reasons for a decision that it is appropriate to include a person in a barred list is not a question of law or fact’.

We also recognise that the Appellant’s failure to respond to DBS’ invitation to make representations against their proposal to include him in the children’s barred list is relevant to our analysis of the adequacy of DBS’ reasons. DBS could only work with the material available to them and cannot be criticised for having failed to address matters which the Appellant now says he would have raised had he responded to their minded to bar letter. However, the material available to DBS included at least one, and possibly more, recent disclosure certificates issued in respect of the Appellant for the position ‘child workforce – match official’. DBS were therefore aware that, whatever their concerns about the Appellant’s suitability to work with children, they did not include any reports made to DBS of instances of inappropriate behaviour (such as a loss of temper) while the Appellant was acting as a ‘child workforce – match official’. DBS were also aware that, since 2004, the Appellant had neither been convicted nor cautioned for any further offences involving violence or threatening behaviour.

The nature of DBS’ risk assessment was, in our judgment, transparent. Between 2000 and 2004, the Appellant’s behaviour became increasingly threatening and violent despite initial punishments. This showed that the Appellant was a person who, at times, was unable to control his temper. If he lost his temper, he might harm a child (“serious concerns that you pose an unacceptable risk of physical harm to child”).

DBS’ reasons did not include any analysis by reference to academic or medical research. They did not, for instance, seek to rely on reported studies (if there are any) of the ongoing propensity to violence in middle age of men who, as young men, committed acts of violence. DBS’ analysis was simply that, as a person whose behaviour during a four-year period that ended nearly 20 years ago became increasingly violent, the Appellant’s anger management skills must remain deficient such that he posed an unacceptable risk of harm to children.

We acknowledge that DBS had little evidential material on which to base their assessment of risk. However, there were evidential absences that were themselves potentially relevant, namely the absence of evidence that, since 2004, the Appellant had committed further offences of violence and the absence of reports made to DBS about the Appellant’s conduct as a junior football coach / referee. In our judgment, the requirement to give adequate reasons for a barring decision called for DBS to provide some explanation as to why, despite these evidential absences, what the Appellant did some twenty years ago demonstrated ongoing anger management deficiencies such that he posed an unacceptable risk of physical harm to children. We therefore decide that DBS made a mistake of law because they gave inadequate reasons for their barring decision. We allow this appeal.