[2025] UKUT 86 (AAC)

Before we deal with the actual grounds of appeal in this case, we need to address some issues of principle that arise in this appeal in relation to the grounds concerning procedural errors in DBS’s decision-making process, and when such errors may amount to a “mistake on any point of law” within the meaning of section 4(2)(a) of the SVGA 2006.

There is no dispute that a procedural error may amount to an error of law. That much is clear from the list of errors of law set out in R (Iran) above, which includes “committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings”.

One issue that the parties were invited to address in these proceedings was whether a “mistake on any point of law” needs to be a ‘material’ one or not, bearing in mind that the words “and on which the decision mentioned … was based” are not attached to the words “mistake of law” in section 4(2)(a) as they are to the words “mistake in any finding of fact” in section 4(2)(b). This may at first seem to be an issue of purely academic interest, but unfortunately the scheme of the SVGA 2006 gives it a practical importance because, under section 4(6), if the Upper Tribunal finds that DBS has a made “such a mistake” (i.e. a mistake of law or fact as identified in section 4(2)), it must either direct DBS to remove the person from the list or remit the matter to DBS for a new decision. The Upper Tribunal does not have a general discretion as to remedy, which is the usual point at which ‘materiality’ would be considered in a judicial review-type decision-making process.

DBS submits that an error of law, including a procedural error, must be a ‘material’ one in order to fall within section 4(2)(a) and that this is inherent in the word “mistake” in that section. DBS submits that the use of the word “mistake” does the work that is done in judicial review proceedings by what are now the “no substantial difference” provisions in section 31(3C), (3D) and (2A) of the Senior Courts Act 1981 (and what was previously a ‘common law’ discretion for the High Court to refuse relief in such cases). DBS refers in support of this submission to KB v DBS [2021] UKUT 325 (AAC) at [31], which refers in turn to [102] of Wyn Williams J’s decision in R (Royal College of Nursing and ors) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin) (RCN). Those authorities make the point also made in R (Iran) at [10] per Brooke LJ that errors of law must be ‘material’. However, those authorities by themselves do not quite make good DBS’s submission because: (i) KB refers to ‘common law’ requirements and does not focus on the question of the scope of the Upper Tribunal’s statutory jurisdiction under section 4(2); (ii) RCN at [102], to which KB also refers, was dealing with mistakes of fact not law, in respect of which section 4(2)(b) contains an express ‘materiality’ provision; and (iii) R (Iran) acknowledges that ‘materiality’ is an additional requirement, separate to the concept of ‘error of law’ itself since, as Brooke LJ puts it at [10]: “Each of these grounds for detecting an error of law contain the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

DBS’s argument gains more support from PF v DBS [2020] UKUT 256 (AAC) where, at [38], the two-judge, one-member, panel of the Upper Tribunal observed (albeit also in relation to the ‘mistake of fact’ jurisdiction) that:

38.

‘Mistake’ is the word used and there is no reason to qualify it. The courts

operate a test of whether a decision was ‘wrong’. This has in the past been

qualified by words like ‘plainly’. Nowadays, that has to be understood in the way explained by the Supreme Court in Henderson v Foxworth Investments Ltd [2014] UKSC 41, [2014] 1 WLR 2600:

62.

Given that the Extra Division correctly identified that an appellate court can interfere where it is satisfied that the trial judge has gone ‘plainly wrong’, and considered that that criterion was met in the present case, there may be some value in considering the meaning of that phrase. There is a risk that it may be misunderstood. The adverb ‘plainly’ does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion.

That draws attention to the need to identify an error or, in the language of section 4, a mistake. It is not enough that the Upper Tribunal would have made different findings. The word ‘plainly’ has not yet taken root in the Upper

Tribunal’s cases. The phrase was used in XY at [53], but the tribunal was merely giving a general description of the tribunal’s jurisdiction on mistake of facts and not dealing with its interpretation. In order to avoid any doubt or confusion about what it means, it is better to use only the statutory language and avoid any qualifiers.

Further, in EB v DBS [2023] UKUT 105 (AAC), a panel of the Upper Tribunal chaired by Judge Rowland held at [38], again focusing on the ‘mistake of fact’ jurisdiction, but expressing their decision in terms that apply equally to ‘mistake of law’:

28.

… we agree that, if an appeal is to be allowed, it is necessary for a person appealing under section 4 to identify a “mistake” – or, in less adversarial language, that it is necessary that the Upper Tribunal be satisfied that there has been a “mistake” – but, in our judgment, both that requirement and the

meaning of “mistake” are to be derived from the language of section 4 itself, and not from any principle that might be derived from Henderson. That there is only a “mistake” if an error is material to the ultimate decision, as Wyn Williams J held in the Royal College of Nursing case …, is the clear implication of that word being used in both subsection (5) and subsection (6) of section 4. It follows from the requirement that there must be a “mistake” in that sense that, as the Upper Tribunal held, “(i)t is not enough that the Upper Tribunal would have made different findings”. [emphasis added]

As we understand what the Upper Tribunal in EB says in that paragraph, the Tribunal considered that, as a matter of statutory interpretation, the effect of sections 4(5) and (6) of the SVGA 2006 is such that the word “mistake” in section 4 has to be interpreted as including a ‘materiality’ requirement for errors of law as well as errors of fact. This is because sections 4(5) and (6) give the Upper Tribunal such a limited discretion once a mistake of law or fact has been identified and require an appeal to be ‘allowed’ at that point, with the matter either being remitted to DBS for a fresh decision or the person either being removed from the list (if that is the only decision DBS could have made: DBS v AB [2021] EWCA Civ 1575, [2022] 1 WLR 1002 at [73] per Lewis LJ). Sections 4(5) and (6) do not allow for the Upper Tribunal to exercise a discretion (such as the High Court has on judicial review) to refuse to remit a case to DBS on the basis that, even though an error of law has been established, it was not material to the decision.

Having considered the authorities, we agree with DBS that the use of the word “mistake” in section 4(2)(a), rather than ‘merely’ “error” imports a requirement that the error (whether of law or fact) be a material one so that the decision can properly be said to be ‘wrong’ as a result of the error. We are not troubled by the fact that that interpretation renders redundant the additional words included in section 4(2)(b) for mistakes of fact that the mistake must be in the facts “on which the decision mentioned in that sub-section was based”. Although, as a general rule, an interpretation that results in redundant wording is to be avoided, in this case we consider that general rule needs to give way because the drafting of the section of the whole points so strongly towards the drafter having regarded a mistake on a point of law as necessarily being a material error of law that should result in an appeal being ‘allowed’. The policy arguments all point in favour of that interpretation too as otherwise appeals would need to be ‘allowed’ in order to enable DBS to deal with purely academic points, which would not appear to be in anyone’s interests.