[2025] UKUT 86 (AAC)

As already noted above, regulation 2(6) of the 2006 Regulations provides a discretion for DBS to extend the prescribed eight-week period for making representations where someone has not ‘completed’ making representations within that period if there is “good reason” to do so.

We see no reason in principle why that discretion cannot be exercised retrospectively if necessary, so that in principle time may be extended even if an application is made after the prescribed period has expired. There is nothing on the face of the legislation to suggest that the discretion is limited to applications made within the prescribed period, although the reference to an extension of time being available only where a person has “not completed” making his representations within the period provided for does suggest that the person needs at least to have ‘started’ making representations within the period. In this case, however, there was (by the end of the hearing before us) no dispute that the discretion to extend time could in principle have applied in the appellant’s case, given that she telephoned DBS and wrote the letter of 3 August 2021 within the period (although it arrived after the expiry of the period).

We recognise that the public interest in protecting children and vulnerable adults means that it is important that someone who should be on a list is placed on a list as soon as possible, and that, in general, DBS will need to take care to ensure that a person it is considering putting on a list does not unreasonably delay that process and thereby put children and vulnerable adults at risk. Indeed, in auto-barring with representations cases under paragraphs 2 and 8 of Schedule 3, as we have noted above, there is a mandatory duty on DBS to put someone on the list if they do not make representations within the prescribed period. Although the time prescribed for representations will include any extension of time granted under regulation 2(6), the existence of that mandatory duty in paragraphs 2 and 8 cases points towards it being less likely in such cases that an extension of time will be granted. In contrast, there is no such mandatory duty in paragraphs 3 and 9 cases such as the present. DBS retains a general discretion in such cases as to what it does when the prescribed period has ended.

However, in all cases at the stage before DBS has taken a decision a “good reason” for an extension of time will be required, and it is likely to be relevant for DBS to take into account in deciding whether to extend the time for representations before a decision is made such factors as: the importance of the right to make representations to natural justice and good decision-making; whether or not the person has in fact had a reasonable opportunity to make representations on the basis of all the relevant information; how much delay there has already been in dealing with the case and what difference a further period of delay might make; and the nature of the allegations against the person and the potential risk they pose.

Once a decision has been taken to include a person on a list, paragraph 17 of Schedule 3 comes into play. Anyone who is included in a list without having had the chance to make representations because DBS was unable to ascertain their whereabouts is automatically entitled to have late representations considered (paragraph 17(1) and (3)). For everyone else who did not make representations before the decision was made, DBS has under paragraph 17(2) a discretion to permit them to make late representations.

Paragraph 17(2) is not limited to cases where a person did not have an opportunity to make representations within the prescribed period, but applies where a person simply did not for any reason (or none) make representations within the prescribed period. Nor is there any threshold for the exercise of that discretion: DBS does not have to have a “good reason” to exercise its discretion to consider late representations. It is plain why that is: by this point, the person is on the list. The risk to children and vulnerable adults has been dealt with.

Given the importance to natural justice of the right to make representations, we find it difficult to imagine a case in which it would not be appropriate for DBS to give permission to a person to make late representations. That is particularly so given: (i) the requirement that DBS comply with section 6 of the Human Rights Act 1998 by not breaching a person’s Convention rights, which it may unwittingly do if it refuses to consider the person’s representations; (ii) the public interest in DBS making the ‘right’ decision in these cases and not unnecessarily preventing people from working with children and vulnerable adults; and, (iii) avoiding the delay, expense and prejudice to good public administration of unnecessary legal proceedings. If DBS considers a person’s representations (however late) and then either makes a ‘better’ decision that the person no longer wishes to challenge by way of appeal, or in respect of which the Upper Tribunal is able to dismiss any appeal at the permission stage, that is in everybody’s interests.

A further reason why DBS should in general consider late representations is because, as set out above in the Legal Framework section of our decision, an appeal to the Upper Tribunal is not a full merits appeal. Accordingly, if on appeal the Upper Tribunal concludes that, by failing to consider a person’s late representations, DBS failed to give that individual an effective opportunity to make representations, the Upper Tribunal is likely to conclude that failure made a material difference to the fairness of the decision and was thus a mistake of law that must lead to the appeal being allowed and the case remitted to DBS for a fresh decision.

In this case, we have found as facts that, when the appellant telephoned DBS on 30 July 2021 to ask for an extension of time, she explained that she had been away from home and needed more time to respond and the DBS representative she spoke to said something like, “No I’m sorry we can’t extend. Your representations have to be sent before the due date.” In her subsequent letter of 3 August 2021, the appellant recounted the circumstances, referred to her previous telephone call and what had been said and pointed out that, in calling, she had done just what the letter said she should do in order to ask for more time. She complained that she had not been provided with Annex A or the CCTV evidence. She complained that she had not been given an opportunity to make oral representations as the letter said could happen. DBS’s response of 17 August 2021 dealt with her request for an extension of time in two sentences as follows: “Thank you for your letter received 5 August 2021 asking us to extend the time limit to make representations. Unfortunately, we cannot agree to your request.”

Putting those communications together, and noting that nowhere in these communications was any reference made to DBS having a discretion to extend time for making representations, let alone to the test laid down in regulation 2(6) which is whether there is “good reason” to extend time, we conclude that DBS misunderstood or misdirected itself as to the law in refusing to extend time for the appellant to make representations. We find that DBS failed to consider, properly or at all, whether to exercise its discretion under regulation 2(6).

We would have reached this conclusion even if DBS had not made the error in its skeleton argument of arguing that as a matter of law it did not have a discretion to extend the prescribed period (although we observe that the fact that counsel’s skeleton argument was approved by DBS with that error in it does strengthen the impression given by the documents before us that DBS in this case at least failed to understand its statutory powers).

As to the appellant’s request of 10 September 2021 to make late representations following receipt of the Final Decision letter dated 24 August 2021, this was responded to by DBS with the single sentence: “We are unable to grant permission for this request as you had the opportunity to submit representations at the time but did not do so.” In our judgment, this letter too shows that DBS misunderstood its statutory powers. The fact that someone had an opportunity to submit representations at the time does not render DBS “unable” to grant permission for late representations under paragraph 17(2). Indeed, as we have explained above, the circumstances in which it will be appropriate for DBS to refuse to consider late representations are likely to be very rare. Even if there is no reason why the person could not have made submissions during the prescribed period, if they did not do so, there are, as we have explained above, strong public policy reasons for DBS considering late representations. If DBS refuses to grant permission for late representations without considering any of those public policy factors we have identified, its refusal will generally be irrational and unlawful. In this case, it certainly was, because DBS did not take into account any factors at all other than its belief (largely mistaken on the facts that we have found them to be) that the appellant had had an opportunity to make representations during the prescribed period.

Further, we observe that DBS in its letter of 24 August 2021 uses the language of paragraph 16(1) itself in saying that the appellant ‘had the opportunity’ to make representations. As we have explained above, fairness requires not just that someone have ‘an’ opportunity, but they have an effective opportunity. Had DBS asked itself that question then, on the facts as we have found them to be, it would have had to conclude that the appellant had not had an effective opportunity.

We should say at this point that we recognise from the notes in the Decision Making Process Document that the decision-maker(s) at DBS were probably acting on the basis that the appellant had received the Minded to Bar letter, with Annex A enclosed, on 8 June 2021, as reflected in the information DBS appears to have obtained from Royal Mail Track and Trace. For the reasons set out above in the Factual Background, we concluded that (whether or not the note about Track and Trace is correct), the Minded to Bar Letter and Annex A did not in fact come to the appellant’s personal attention at that point. We further observe, though, that if the DBS decision-maker(s) were relying on the information from Royal Mail Track and Trace to refuse the appellant’s applications for an extension of time, fairness required them to tell her. As it was, this point was not put to the appellant by DBS at any time, even at the hearing before us.

In any event, even if the position was that the appellant had received the Minded to Bar letter and Annex A on 8 June 2021, we would still have concluded that it was irrational for DBS to refuse to consider her representations late given the public policy factors we have identified above (or, at least, that it would have been irrational for DBS to refuse to consider late representations without engaging with those public policy factors).

It follows from what we have said above about grounds 1, 2 and 3 that, at the time that DBS took its final decision on 24 August 2021, the appellant had not been provided with an effective opportunity of making representations as a result of the combination of the failure to provide her with information and the refusals of her applications for an extension of time to make representations. These failures involved errors of law.

These errors would not have been material if DBS had permitted her to make late representations, but by its letter of 29 September 2021 DBS refused that application, and that decision involved errors of law too.

These errors would also have ceased to be material if the appellant had sought a paragraph 18A review of DBS’s decision, and DBS had undertaken such a review. If that had happened, this appeal would have become academic and any appeal would need to have been pursued against the fresh decision. However, that has not happened and given that DBS had twice refused to consider the appellant’s representations, we find it understandable that the appellant did not see any point in seeking a review, especially given that her letter of 7 October 2021 requesting a review was responded to with an information leaflet about how to request a review which (correctly, but perhaps somewhat forbiddingly for someone in the appellant’s position) presents the grounds for review as being limited to cases where “certain statutory conditions” are met.

The errors we have identified may also have ceased to be material if the appellant had in this appeal identified some other mistake of law or fact in the decision that meant either that the appeal should be allowed and her name removed from the register, or her case remitted to DBS for a fresh decision. That has not happened either.

When granting permission to appeal, and in subsequent case management directions, Judge Stout explained to the appellant (as Judge Jacobs did at even earlier stages in these proceedings) that it was open to her to challenge DBS’s decision in this appeal on grounds of mistake of fact, and that she could apply to amend her appeal if she wished to do so. As she has not done so, DBS invites us to conclude that it would have made no difference in this case if DBS had given her an opportunity to make representations. We disagree for two reasons.

First, because, as a matter of principle, for the reasons we have already set out above, it is not necessary for an appellant to be able to show that the substantive outcome in her case might have been different. Because the appeal to the Upper Tribunal is not a full merits-based appeal, the failure to allow someone an effective opportunity to make representations is the sort of procedural error that is capable of making a material difference to the fairness of the decision, and thus constituting a mistake of law, even if it cannot be shown that the substantive outcome would have been any different. In this case, we are satisfied that DBS’s decision was materially unfair in this way. Without any justification, it breached one of the fundamental principles of natural justice.

Secondly, we are also satisfied that in this particular case there is a chance that DBS might make a different decision if the appellant is given an effective opportunity to make representations. Having heard the appellant at this hearing, it seemed to us that she has not yet articulated in any document what her representations would have been if she had been permitted to make them. From the point that the Minded to Bar Letter first came to her attention on 30 July 2021, without the accompanying Annex A, she has focused on what we have now held to be the injustice of not being provided with Annex A, and on the injustice of having her applications to make representations refused, and also on the fact that she was not provided with the CCTV evidence (her impression that she had not been given access to this with the Minded to Bar letter being compounded by DBS having tried to prevent her being provided with the CCTV evidence as part of this appeal).

As a result, although the appellant has incidentally made some representations as part of this appeal about what might be characterised as potentially mitigating circumstances (her allegations that she was subject to racial abuse by VA), she has not at any point ‘begun at the beginning’ and explained to DBS why she submits that her conduct on the CCTV footage should not be regarded as being as serious as DBS considers it is, or set out in any detail her personal circumstances, employment history, training, what insight she has into her behaviour or why she submits that a barring decision is not necessary to protect children and vulnerable adults or is otherwise disproportionate.

At this hearing, in the course of lengthy ‘closing submissions’, the appellant started to address these sorts of matters. We do not attempt to summarise here what she said, but there were certain points that we thought might make a difference to a decision on appropriateness (involving as it can do a nuanced assessment of context and nature/degree of risk), even if they may not have provided a basis for finding there was a mistake of law or fact in the decision. We have in mind, for example, what she said about the ‘Shouting’ video showing her being interrupted on a break and called back down to help when the other carer (sitting on the sofa in the video) should have been helping, and also her acknowledgment that her conduct was inappropriate and what she said about the impact on her of the decision.

In view of our conclusions on grounds 1 to 3, which mean that the case must be remitted to DBS for a fresh decision, we address grounds 5 and 7 only briefly.