[2025] UKUT 225 (AAC)

The SVGA 2006 provides a person to be included in one or both of two Barred Lists, one for vulnerable adults and the other for children.

Schedule 3 to the SVGA 2006 sets out provisions relating to children (paragraphs 3 to 4) and relating to adults (paragraphs 9 to 10).

Schedule 3 to the SVGA 2006 Act sets out a number of ways in which the DBS may decide to include a person’s name on a Barred List. In the present case the DBS relied upon the ‘relevant conduct’ gateway. This required the DBS to be ‘satisfied’ of three matters, namely:

Where the DBS was satisfied of all three matters above, paragraph 9(3) of Schedule 3 to the SVGA 2006 required it to place a person’s name on the Adults’ Barred List.

Schedule 3 also allows the DBS to rely on relevant conduct in respect of a vulnerable adult as relevant conduct in relation to a child, where the DBS is satisfied it is conduct which, if repeated against or in relation to a child, would endanger a child or be likely to endanger him.

To consider AA for inclusion in the Childrens’ Barred List on the basis of relevant conduct in respect of an adult, the DBS would also need to be satisfied that AA had, at the relevant time, had in the past, or might in the future be engaged in regulated activity in relation to adults.

AA has worked as a support worker and scheme leader for vulnerable adults. The parties do not dispute that he satisfies paragraph 17(a) above.

With regard to paragraph 17(b), AA’s case is that he had not engaged in the conduct alleged and that the DBS’s decision that he did, involved several mistakes of fact. AA’s appeal grounds did not argue that if the alleged conduct were found to be proved, it would not amount to ‘relevant conduct’ for the purposes of the SVGA 2006. AA’s representatives did, however, assert that it would be disproportionate to include him in the Barred Lists. This is dealt with below.

In terms of paragraph 17(c) above, “appropriateness” is not a matter for the Upper Tribunal, unless the decision-making around appropriateness is irrational.

Section 4 of the SVGA 2006 sets out the circumstances in which an individual may appeal against the inclusion of their name in either or both of the Barred Lists.

An appeal may be made only on grounds that the DBS has made a mistake on any point of law or in any finding of fact which it has made and on which the barring decision was based (see section 4(1) and (2)).

Section 4(3) provides that, for the purposes of section 4(2), whether or not it is ‘appropriate’ for an individual to be included in a barred list is “not a question of law or fact” and so, to that extent at least, is non-appealable. An appeal under section 4 may only be made with the permission of the Upper Tribunal (see section 4(4)).

Section 4(5) of the SVGA 2006 provides that unless the Upper Tribunal finds that the DBS has made a mistake of law or fact, it must confirm the DBS’s decision. Section 4(6) of the SVGA 2006 sets out the outcomes available to the Upper Tribunal if it decides the DBS has made a mistake of law or fact. These are to either: (a) direct the DBS to remove the person from the barred list(s) or (b) to remit the matter to the DBS to make a new decision. Following DBS v AB [2021] EWCA Civ 1575, the usual order will be for the Upper Tribunal to remit a matter back to the DBS unless no decision other than removal is possible on the facts.

As explained at section 4(7) of the SVGA 2006, if the Upper Tribunal remits a matter to the DBS under section 4(6)(b), it may set out any findings of fact it has made on which the DBS must base its new decision. Furthermore, the person must be removed from the list until the DBS makes its new decision (unless the Upper Tribunal directs otherwise).

The relevant principles regarding the Upper Tribunal’s mistake of act jurisdiction have been set out in several recent decisions of the Court of Appeal, which are binding on the Upper Tribunal (see DBS v JHB [2023] EWCA Civ 982; Kihembo v DBS [2023] EWCA Civ 1547; and DBS v RI [2024] EWCA Civ 95. The decision of a presidential panel of the Upper Tribunal in PF v DBS [2020] UKUT 256 (AAC) is also relevant to the mistake of fact jurisdiction of the Upper Tribunal.

Section 4(3) of the SVGA 2006 makes clear that the Upper Tribunal only has limited powers to intervene in relation to whether it is appropriate to include a person in a barred list. The scope for challenge by way of an appeal is effectively limited to a challenge on proportionality or rationality grounds.

At paragraph 43 of DBS v AB, the Court of Appeal stated:

“…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… is a matter for the DBS”.

At paragraph 55 of DBS v AB, the Court of Appeal explained:

“[The Upper Tribunal] will need to distinguish carefully a finding of fact from value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness. The Upper Tribunal may do the former but not the latter…”.

R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 indicates that materiality and procedural fairness are essential features of an error of law. The SVGA 2006 does not contain any provisions to provide a basis for departing from that general principle. See CD v DBS [2020] UKUT 219 (AAC).