[2025] UKUT 86 (AAC)

The appellant in this case was included on the children’s barred list using DBS’s powers in paragraph 3 of Schedule 3 to the SVGA 2006 and on the adults’ barred list using its powers in paragraph 9 of Schedule 3.

Under those paragraphs, subject to the right to make representations (as to which see further below), DBS must include a person on the relevant list if (in summary and in so far as relevant to the present appeal):

“Endangers” means (in summary) that the conduct harms or might harm the child or vulnerable adult: see Schedule 3, paragraphs 4(4) and 10(4).

By paragraph 3(2) and 9(2) of Schedule 3 DBS must give the person an opportunity to make representations before including them on the barred list.

Paragraphs 16 and 17 of Schedule 3 make further provision about the right to make representations as follows (so far as relevant):-

16

(1)

A person who is, by virtue of any provision of this Schedule, given an opportunity to make representations must have the opportunity to make representations in relation to all of the information on which DBS intends to rely in taking a decision under this Schedule.

(2)

Any requirement of this Schedule to give a person an opportunity to make representations does not apply if DBS does not know and cannot reasonably ascertain the whereabouts of the person.

…

17

(1)

This paragraph applies to a person who is included in a barred list … if, before he was included in the list, DBS was unable to ascertain his whereabouts.

(2)

This paragraph also applies to such a person if–

(a)

he did not, before the end of any time prescribed for the purpose, make representations as to why he should not be

included in the list, and

(b)

DBS grants him permission to make such representations out of time.

(3)

If a person to whom this paragraph applies makes such representations after the prescribed time–

(a)

DBS must consider the representations, and

(b)

if it thinks that it is not appropriate for the person to be included in the list concerned, it must remove him from the list.

(4)

For the purposes of this paragraph, it is immaterial that any representations mentioned in sub-paragraph (3) relate to a time after the person was included in the list concerned.

Paragraph 15 of Schedule 3 permits the Secretary of State by regulations to make provision as to the procedure to be followed for the purposes of any decision DBS is required or authorised to take under Schedule 3, including provision as to the time within which anything is to be done. The Safeguarding Vulnerable Groups Act 2006 (Barring Procedure) Regulations 2008 (SI 2008/474) (the 2008 Regulations) are made under that paragraph. Regulation 2 provides:

2.— Representations

(1)

This paragraph applies to any person to whom DBS must, in accordance with any provision of Schedule 3 to the Act, give the opportunity to make representations as to his inclusion in, a barred list.

(2)

DBS must give any person falling within paragraph (1) notice in writing that he may make such representations.

(3)

DBS shall give any notice under paragraph (2) to the person in question by sending it to him by post.

(4)

Any notice sent in accordance with paragraph (3) shall be treated as having been received by the person in question 48 hours after the date on which it was sent unless the contrary is proved.

(5)

A person to whom notice is given in accordance with paragraph (3) may make representations as to his 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.

It is also convenient to mention here that paragraphs 3 and 9 of Schedule 3 deal with only one type of barring decision that DBS may have to make. Paragraphs 1 and 7 contain provision for automatic barring in cases where certain offences have been committed, while paragraphs 2 and 8 contain a slightly different procedure for persons who are convicted or cautioned for certain other offences. Paragraphs 2 and 8 provide, in summary, that the person must be given the opportunity to make representations as to why they should not be included on the list(s). If the person “does not make representations before the end of any time prescribed for the purpose”, or their whereabouts are not known so that paragraph 16(2) (see above) so that they are not entitled to an opportunity to make representations, then paragraph 2(6) and 8(6) make it mandatory for DBS to include the person in the list. Such persons may then apply for permission to make representations under paragraph 17(2).

A person included in a barred list may apply for a review of their inclusion after the prescribed minimum period of 10 years (paragraph 18). Alternatively, paragraph 18A permits DBS to review a person’s inclusion in a barred list at any time. On such a review, DBS may remove the person from the list “if, and only if, it is satisfied that, in the light of- (a) information which it did not have at the time of the person’s inclusion in the list, (b) any change of circumstances relating to the person concerned, or (c) any error by DBS, it is not appropriate for the person to be included in the list”.