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Thus, the fundamental point relevant to this case is that unlike in an appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007 , it is not necessary for the Upper Tribunal to find an
36. Thus, the fundamental point relevant to this case is that unlike in an appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007, it is not necessary for the Upper Tribunal to find an error of law in DBS’s fact- finding before it substitutes its own findings of fact. While the Upper Tribunal’s decision should show why it is differing from DBS on matters of fact, it is not obliged to find a defect in DBS’s reasoning; it is enough that it takes a different view of the evidence.
There is further guidance in DBS v JHB [2023] EWCA Civ 982:
On the reasoning in PF, the decision of the DBS was therefore the starting point for the UT’s consideration of the appeal. JHB did not claim that the DBS had erred in law. The UT could not exercise any powers on the appeal, therefore, unless it identified an error of fact in the approach of the DBS to the findings of fact on which the Decision was based. Those findings were the conviction for the Offence, which JHB did not challenge, finding 1, which JHB admitted, and findings 2 and 3. Those findings of fact did not include the DBS’s assessment of the weight to given to the reports. The UT was not free to make its own assessment of the written evidence unless, and until, it found such an error.
The Court of Appeal said that was impermissible, because the UT was only entitled to carry out its own evaluation of the evidence that was before the DBS if it had first identified that the DBS had made a finding which was not available to it on the evidence on the balance of probabilities.
Facts
The findings of fact which gave rise to the Barring Decision were set out in the Respondent’s Final Decision letter of 18/4/24 [373-377]. That letter stated as follows:
- Heading
- The decision of the Upper Tribunal is to dismiss the appeal
- or any information that would be likely to lead to the identification of any of them
- Legal Framework
- The basis for a “relevant conduct” barring decision
- Rights of appeal
- Caselaw
- [55]. The Upper Tribunal also made findings of fact and made comments on other matters. Section 4(7) of the Act provides that where the Upper Tribunal remits a matter to the DBS it "may set out any fi
- There is no limit to the form that a mistake of fact may take. It may consist of an incorrect finding, an incomplete finding, or an omission. It may relate to anything that may properly be the subject
- And at
- And they concluded as follows Drawing the various strands together, we conclude as follows
- Thus, the fundamental point relevant to this case is that unlike in an appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007 , it is not necessary for the Upper Tribunal to find an
- “We have considered all the information we hold and are satisfied of the following
- seek timely and necessary medical treatment for him and further
- On 18/4/24 the Respondent sent a Final Decision letter to FKF setting out the Barring Decision [373-377]
- Conclusions