[2025] UKUT 86 (AAC)

For the reasons set out above, we have concluded that DBS made a mistake on a point of law as a result of the procedural errors in this case. The nature of the mistake is such that we need to remit the matter to DBS for a new decision, as required by section 4(6)(b) of the SVGA 2006. We cannot direct that the appellant should be removed from the list under section 4(6)(b) because we are not able to say that the only lawful decision in this case is that the appellant should be removed from the lists. DBS may decide either that it remains appropriate for to be included on the barred lists or that it is appropriate to remove her from the barred lists.

We observe that DBS will on remission be considering the position as of the date on which it makes its new decision. Unlike the Upper Tribunal (see SD v DBS [2024] UKUT 249 (AAC), especially at [22]-[27]), DBS is not confined to considering retrospectively whether its decision was correct at the time that it was made. That DBS needs to consider the circumstances by reference to the time at which it takes a decision is underscored by paragraph 17(4) of Schedule 3, which makes clear that late representations may relate to what has happened since the appellant was included in the lists. This may be important in this case because there has been a very substantial delay in the appellant’s case reaching a final hearing so that she has in fact now been on the barred lists for 4.5 years. DBS will need on remission to take into account her current circumstances and level of risk.

Section 4(7)(b) of the SVGA 2006 provides that where the Upper Tribunal remits a matter to DBS under subsection (6)(b) the person must be removed from the list until DBS makes its new decision, unless the Tribunal directs otherwise. In this case, given the length of time that the appellant has been on the list, and acknowledging that this is a finely balanced case, we consider that the appropriate course is to maintain the current ‘status quo’ pending DBS’s new decision, and thus that the appellant should remain on the lists. However, we reach this conclusion on the assumption that DBS will proceed swiftly to make a new decision. We would expect DBS to make a new decision within one month of the appellant sending her new representations to DBS. Both parties will need to be proactive to ensure that a new decision is made within a reasonable time period.

Finally, we express our dismay at what has happened in this case and the length of time it has taken to reach the point where DBS will now consider the appellant’s representations and make a fair decision. The denial of procedural fairness by DBS at the outset has been compounded by the case management issues that arose as a result of DBS initially refusing to allow the appellant access to the CCTV as part of these proceedings and the other delays that have occurred in bringing this case to a final hearing. We apologise again to the appellant for the Upper Tribunal’s part in the delays that have occurred. We trust that what we have said in this decision about the importance of DBS considering representations if they are made late will ensure that no other case takes the course that this case has taken.