[2025] UKUT 329 (AAC)

The right of appeal against a DBS decision to include a person in a barred list, provided for by section 4(2) of the 2006 Act, is as follows:

“(2)

An appeal…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…was based.”

Section 4(3) of the 2006 Act provides that “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”. In other words, there is no right of appeal against DBS’ decision that it is appropriate for an individual to be included in a barred list. The Act’s barring criteria do not mention ‘risk’ but the level of risk posed to children is clearly something that DBS will consider relevant when determining if it is appropriate to include a person in the children’s barred list. In Disclosure & Barring Service v AB [2021] EWCA Civ 1575 the Court of Appeal said:

“43…unless the decision of the DBS is legally or factually flawed, the assessment of the risk presented by the person concerned, and the appropriateness of including him in a list barring him from regulated activity with children or vulnerable adults, is a matter for the DBS.”

If the Upper Tribunal finds that DBS made a mistake of fact or law, within section 4(2) of the 2006 Act, it must either direct DBS to remove the individual from the barred list or remit the matter to DBS for a new decision (section 4(6)). If the Upper Tribunal remits to DBS, it may set out findings of fact on which DBS must base its new decision (section 4(7)(a)). In AB, the Court of Appeal held:

“73…I would interpret section 4(6) of the Act as permitting the Upper Tribunal to direct removal of the name of a person from a barred list where that is the only decision that the DBS could lawfully reach in the light of the law and the facts as found by the Upper Tribunal…”.

If the Upper Tribunal remits a matter to DBS for a new decision, the person must be removed from the barred list until DBS makes its new decision unless the Upper Tribunal directs otherwise (section 4(7)(b) of the 2006 Act).

Schedule 3 to the 2006 Act sets out criteria for including a person in the children’s barred list. Paragraph 3 of the Schedule provides as follows:

“(3)

DBS must include the person in the children’s barred list if –

(a)

it is satisfied that the person has engaged in relevant conduct,

(aa) it has reason to believe that the person…might in future be, engaged in regulated activity relating to children, and

(b)

it is satisfied that it is appropriate to include the person in the list.”

The definition of “relevant conduct” includes “conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him” (paragraph 4(1) of Schedule 3 to the 2006 Act). It is not disputed that the Appellant might in future be engaged in regulated activity relating to children.

Where DBS propose to include a person in the children’s barred list under paragraph 3 of Schedule 3 to the 2006 Act, they “must give the person the opportunity to make representations as to why he should not be included in the children’s barred list” (paragraph 3(2)).

Regulation 2 of the Safeguarding Vulnerable Groups Act 2006 (Barring Procedure) Regulations 2008 provides as follows:

“(5)

A person to whom notice is given in accordance with paragraph (3) [right to make representations] may make representations as to his removal from, or inclusion in, a barred list within the period of 8 weeks starting on the day on which he is treated as having received the notice.

(6)

Where—

(i)

a person has not completed making his representations within the period provided for under paragraph (5), and

(ii)

DBS is satisfied that the person has good reason for not doing so,

DBS may allow that person such further period to make his representations as DBS considers reasonable.”