[2025] UKUT 86 (AAC)

We have found as facts, for the reasons set out in the Factual Background section above, that: (i) the Minded to Bar letter only came to the appellant’s personal attention on 30 July 2021, when she returned from a period of working away from home; and, (ii) even once the letter had come to her attention, Annex A did not. The appellant personally saw Annex A for the first time only after she had in her letter of 3 August 2021 complained about not having received the documents and DBS sent her a ‘second’ copy.

We have not, however, made any findings of fact about whether DBS sent the appellant the Minded to Bar letter on 7 June 2021, or whether it included with that letter Annex A. We do not consider that we need to make findings on those points in order to resolve this appeal.

That is because we are not concerned on this appeal with whether DBS was right to treat 4 August 2021 as the end of the 8 week period within which the appellant was permitted by regulation 2(5) of the 2008 Regulations to make representations in response to the notice (i.e. the Minded to Bar letter) that DBS sent to her in order to comply with regulation 2(2) of the 2008 Regulations. We proceed for the purposes of this appeal on the assumptions that: (i) DBS sent the Minded to Bar letter by post to the appellant on 7 June 2021 as required by regulation 2(2) and (3); (ii) it was deemed received by the appellant 48 hours later by virtue of regulation 2(4); and, (iii) the 8-week period for making representations under regulation 2(5) therefore really did expire on 4 August 2021.

In making those assumptions, we have not lost sight of the provisions of regulation 2(4) which provides that “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”. The appellant has not sought to argue on this appeal that she has “proved” that she did not ‘receive’ the Minded to Bar letter within 48 hours of it being “sent” for the purposes of regulation 2. We consider it likely that what regulation 2(4) means by ‘proving’ an alternative date of ‘receipt’ means merely ‘proving’ that the notice was actually received at the individual’s address on a different date. We doubt it is sufficient for someone to prove that that they personally did not open or read notice as such an interpretation could seriously undermine the scheme under the Act by allowing an individual to dictate when the prescribed 8-week period ends (and thus delaying the point at which DBS may make a decision in their case) by (for example) not collecting their post for a period. However, we do not need to decide this issue in this case.

In this case, therefore, we proceed on the basis that the fact that we have found that the appellant personally did not see the Minded to Bar letter until 30 July 2021 or Annex A until sometime after 3 August 2021 does not mean that the period during which she was required to make representations did not expire on 4 August 2021 in accordance with regulation 2(4) of the 2008 Regulations.

The issue that does arise for us in relation to this first ground of appeal is whether the appellant had the opportunity that she was required to have by virtue of paragraph 16(1) of Schedule 3, or whether she otherwise did not have the information fairly required to enable her to make representations, and, if not, what the consequences of that were.

We deal first with the scope of paragraph 16. By way of reminder, paragraph 16(1) provides:

(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.

DBS submits that this is an obligation to provide information, not a disclosure obligation. We do not fully accept DBS’s submission. DBS is right that paragraph 16 deals with “information” not “documents” or “evidence”, and that it only requires “information” on which DBS ‘relies’ to be provided so that information DBS has but is not relying on need not be provided pursuant to that paragraph.

However, what paragraph 16(1) requires must in our judgment be construed by reference to the Act as a whole. Sections 30-40 of the SVGA 2006 and the regulations made thereunder (The Safeguarding Vulnerable Groups Act 2006 (Prescribed Information) Regulations 2008, SI 2008/3265) deal with the provision of “information” to DBS by various bodies. It is pursuant to these provisions that employers and other regulated activity providers are required to provide “information” to DBS to enable it to make barring decisions. What is meant by “information” in paragraph 16 therefore has to be understood in this context.

While it might in principle be possible for DBS to comply with paragraph 16 by setting out in the Minded to Bar letter every piece of “information” that it has obtained from the regulated activity provider and on which it intends to rely in its decision, in most cases it seems to us that it will be difficult for DBS to comply with paragraph 16 by doing that. In practice, paragraph 16(1) will usually require DBS to provide the individual with an opportunity of making representations about “all” the “information” (in whatever form) that it has received from the regulated activity provider and on which it “relies” when setting out the reasons for its provisional decision in the Minded to Bar letter. This is because, generally speaking, the material that DBS includes in the Minded to Bar letter itself is in some sense a summary or otherwise incomplete representation of what is in the “information” provided to DBS by the regulated activity provider. For example, DBS may in the Minded to Bar letter describe what happened on a particular day. DBS’s account will be taken from a witness statement. DBS will in its decision in truth be relying on the whole of that statement, including the “information” the document contains about who wrote it, whether they typed it or wrote it by hand and how they expressed themselves. All of that will usually have contributed to DBS’s decision by making the evidence more or less plausible and will therefore form part of the information on which DBS is relying in making its decision, although not all of that contextual information will be captured in the Minded to Bar letter itself.

We observe that our interpretation in this respect is consistent with what is in our experience DBS’s usual practice of providing as an annex to the Minded to Bar letter all the documents it has received from the regulated activity provider (excluding, perhaps, any that DBS has considered to be irrelevant). It is also consistent with the approach that DBS took in this case of offering the appellant an opportunity to make arrangements to view the CCTV footage or receive an independent transcript thereof. Paragraph 16(1) only requires the individual to have an “opportunity” to make representations in relation to “all of the information”, which we accept can be achieved by the opportunity to make arrangements to view video or listen to audio evidence.

However, we further observe that paragraph 16 only takes us so far in terms of understanding what DBS needs to provide to a person whom it is minded to bar. That is because DBS is, like any public authority decision-maker, under a duty to act fairly. Fairness may require DBS in some cases to provide to an individual more than paragraph 16 requires. It may in some cases require DBS to provide information to an individual that it has in its possession but on which it is not ‘relying’. If that information is relevant to the case, fairness may require it to be disclosed in the same way that the duty of standard disclosure in the civil courts requires parties to disclose not only documents on which they rely, but also documents which adversely affect their case or the other party’s case or support the other party’s case. Likewise, on a similar basis, “unused material” will normally be disclosed to the defence in criminal proceedings, while in public law proceedings the duty of candour (or, simply, the overriding objective) may require a public body to provide disclosure of material other than the material on which it relies.

We add also that, as noted when setting out the Legal Framework above, what fairness normally requires is that a person who may be affected by a decision should have not just “an” opportunity but a “reasonable” or “effective” opportunity of making representations about a decision that will affect them. In some cases, we accept, the right to make representations may need to be limited in some way in pursuit of another public interest, such as national security or protection of others. Under the SVGA 2006, paragraph 16(2) of Schedule 3 makes clear that DBS is not required before making a decision to give a person an opportunity to make representations if DBS does not know and cannot reasonably ascertain the whereabouts of the person. That is evidently because the protection of children and vulnerable adults is regarded by Parliament as more important than the individual’s procedural right to make representations before a decision is made. If DBS does know where an individual is, however, then in our judgment paragraph 16(1) and ordinary procedural fairness together require that the individual be given a reasonable opportunity of making representations on the information on which DBS relies before DBS makes a decision on their case.

We further observe that paragraph 16 is drafted in terms (consistent with the requirements of natural procedural justice) that the person actually “have” the opportunity. It is not enough, therefore, for DBS just to send the information and hope it reaches the person; there is no ‘deemed receipt’ provision such as that in regulation 2 of the 2008 Regulations that we have considered above; if the information does not reach the individual, they will not have had the opportunity required by paragraph 16 (and natural justice) to make representations. That is where the discretion in regulation 2(5) of the 2008 Regulations to extend time for making representations where there is “good reason” to do so comes in; likewise, the discretion in paragraph 17(2)(b) for DBS to give permission to a person to make late representations. The fact that a person has not received information they require in order to have an effective opportunity to make representations is likely in most cases to constitute a “good reason” for DBS to extend time for making representations, or permit late representations. We return to this issue when dealing with appeal grounds 2 and 3.

In this case, so far as ground 1 is concerned, we conclude that paragraph 16 and natural justice required the appellant to be provided with not just the Minded to Bar letter but also Annex A and the opportunity to view the CCTV evidence. These were required in order for her to have an effective opportunity to make representations. In particular, the statements from VA’s daughter and the “whistleblower statement” in the bundle in our judgment contain the sort of contextual information that the appellant fairly required in order to have an effective opportunity to make representations. The appellant did not receive Annex A until after the expiry of the prescribed period for making representations on 4 August 2021, and only had four days from actual receipt of the Minded to Bar letter on 30 July 2021 to make arrangements to view the CCTV evidence, but no arrangements were offered by DBS despite the appellant contacting DBS by phone during that period to ask for more time.

There was, therefore, a failure to provide the appellant during the prescribed period with the information she fairly required in order to make representations. Whether or not this was a material failure depends, however, in our judgment on whether she was subsequently given an effective opportunity to make representations. That is the subject of grounds 2 and 3.