[2025] UKUT 119 (AAC)

An appeal to the Upper Tribunal under section 4 of the SVGA 2006 lies only on grounds that DBS has, in deciding to include a person on a list or in refusing to remove a person from a list on review, made a mistake: (a) on any point of law; or (b) in any material finding of fact (cf section 4(2)).

A mistake of fact is a finding of fact that is, on the balance of probabilities, wrong in the light of any evidence that was available to the DBS or is put before the Upper Tribunal; a finding of fact is not wrong merely because the Upper Tribunal would have made different findings, but neither is the Upper Tribunal restricted to considering only whether DBS's findings of fact are reasonable; the Upper Tribunal is entitled to evaluate all the evidence itself to decide whether DBS has made a mistake (see generally PF v DBS [2020] UKUT 256 (AAC), as subsequently approved in DBS v JHB [2023] EWCA Civ 982 at [71]-[89] per Laing LJ, giving the judgment of the Court and DBS v RI [2024] EWCA Civ 95 at [28]-[37] per Bean LJ and at [49]-[51]).

As the Tribunal put it in PF at [39], “There is no limit to the form a mistake of fact may take. It may consist of an incorrect finding, an incomplete finding, or an omission”. A finding of fact may be made by inference (JHB, ibid, [88]), but facts must be distinguished from "value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness [of including the person on the barred list]": AB v DBS [2021] EWCA Civ 1575, [2022] 1 WLR 1002 at [55] per Lewis LJ (giving the judgment of the court). In that same paragraph Lewis LJ noted that assessment of the risk presented by the person would not be a question of fact, but a matter for DBS as part of the assessment of appropriateness.

A mistake of law includes making an error of legal principle, failure to take into account relevant matters, taking into account irrelevant matters, material unfairness and failure to give adequate reasons for a decision. (See generally R (Iran) v SSHD [2005] EWCA Civ 982 at [9]-[13].)

It also includes making a decision to include a person on a barred list that is disproportionate or otherwise in breach of that individual’s rights under Article 8 of the European Convention on Human Rights: see KS v DBS [2025] UKUT 045 (AAC). Where proportionality is raised as a ground of appeal, it is a matter for the Upper Tribunal to decide for itself whether DBS’ decision is compatible with the individual’s Convention rights as required by section 6 of the Human Rights Act 1998 (HRA 1998). The Upper Tribunal does not apply a rationality or Wednesbury approach, but determines the proportionality question for itself by reference to the well-established four-stage process.

As the Upper Tribunal in KS held, in most cases, there will be no issue as to the first two stages, i.e.: (1) that the objective of protecting children and vulnerable adults is sufficiently important in principle to justify the limitation of the individual’s rights; and, (2) the barring decision is rationally connected to the objective. Stage (3) requires the Upper Tribunal to consider whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective. Stage 4 requires the Upper Tribunal to consider whether, in the individual case, the severity of the effects of the decision to bar on the individual are outweighed by the importance of the objective, insofar as barring the particular individual will contribute to achievement of that objective. In determining the proportionality issue, the Upper Tribunal must afford appropriate weight and respect to the view of DBS as the primary decision-maker, the Tribunal must “closely examine the DBS’s conclusions, rationale and reasoning” (KS, ibid, at [72]) and have regard to the need for public confidence in the system (KS, ibid, at [74]-[76]).

Although the Upper Tribunal may take into account evidence not available to DBS at the time of its decision, the correctness of DBS’s decision is to be judged by reference to the circumstances as they were at the time of its decision: see SD v DBS [2024] UKUT 249 (AAC), especially at [22]-[27].

A failure to give adequate reasons is itself an error of law. The standard for reasons in this context is that the DBS must give “intelligible reasons … sufficient to enable the applicant to know why his representations were of no avail”: AB v DBS [2021] EWCA Civ 1575, [2022] 1 WLR 1002 at [45] per Lewis LJ.

Any error of law or fact must be material to the decision in order to amount to a ‘mistake’ for the purposes of section 4(2) SVGA 2006: SM v DBS [2025] UKUT 86 (AAC) at [76].

If the Upper Tribunal concludes there is no mistake of law or fact in the decision, it must confirm the decision: section 4(5) SVGA 2006. If the Upper Tribunal concludes that a mistake of law or fact has been made it must by section 4(6) remit the matter to DBS for a new decision or, if satisfied that the only lawful outcome is that the person is removed from the list, the Upper Tribunal must so direct: DBS v AB [2021] EWCA Civ 1575, [2022] 1 WLR 1002 at [73] per Lewis LJ).

If the Upper Tribunal remits a matter to DBS, the Upper Tribunal may set out any findings of fact which it has made on which DBS must base its new decision and the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise: section 4(7).