[2025] UKUT 98 (AAC)

An appeal under section 4 of the 2006 Act is not a full merits appeal permitting the Tribunal to substitute its own judgment on the question of appropriateness. An appeal can succeed only if the appellant can demonstrate an error in a material finding of fact or in the approach taken by the DBS as a matter of law.

In relation to whether it is “appropriate” to include a person in a barred list, the Upper Tribunal has only limited powers to intervene. This is clear from the section 4(3) of the 2006 Act and relevant case law. In particular, the judgment as to appropriateness (described by Wyn Williams J in R (RCN) v SSHD & ISA [2010] EWHC 2761 (Admin) as “the ultimate question”) may only be challenged on the grounds that it is irrational, disproportionate or otherwise unlawful (see §104 and see also DBS v AB [2021] EWCA Civ 1575 (“AB”)). The DBS is well-equipped to make safeguarding decisions of this kind (AB at §43-44, 55, 66-75)).

When it comes to mistakes of fact, the ‘starting point’ for the Tribunal’s consideration will be the DBS decision: PF v DBS [2020] UKUT 256 (“PF”), §51(g). Notwithstanding that, the Tribunal will not defer to the DBS on factual matters, but the amount of weight given to the DBS’s findings of fact will depend on all the circumstances: PF at §§49 and 51(f). The evaluation of evidence is not a mistake of fact and therefore if an appellant does not produce evidence on appeal which was not available to the DBS, then the Tribunal may only find that there has been a mistake of fact if it concludes that there is no evidence to support that finding of fact or that it was irrational: DBS v JHB [2023] EWCA Civ 982 (“JHB”) at §§93-95.

If the Tribunal hears evidence which was not before the DBS, it may be entitled to reach the view that, having heard that evidence, a factual finding of the DBS was wrong: JHB, §95; DBS v RI [2024] EWHC Civ 95 (“RI”), §§28-29. Any mistake of fact must be material in the sense of making a material contribution to the overall decision: PF, §51(b).

Where it is submitted that a decision to include a person on the ABL or CBL amounts to a disproportionate interference with that person’s rights under the European Convention on Human Rights (“ECHR”), the Tribunal must accord ‘appropriate’ weight to the conclusions reached by the DBS on this matter, noting its particular expertise in these matters: B v ISA [2013] 1 WLR 308. If the Tribunal finds that the DBS has exercised its power rationally and in accordance with the purpose of the 2006 Act, “it would require very unusual facts for it to amount to a disproportionate restriction on Convention rights”: Belfast City Council v Miss Behavin’ Ltd[2007] 1 WLR 1420.

The appeal is against the decision made by the DBS, not simply the contents of the decision letter: see XY v ISA [2011] UKUT 289 (AAC) (“XY v ISA”) at §40. The DBS’s decision must “be read fairly and as a whole”: AB, §46.

At §55 of AB, the Court cautioned: “[The Upper Tribunal] will need to distinguish carefully a finding of fact from value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness. The Upper Tribunal may do the former but not the latter…”. At paragraph [43], the Court stated: “…unless the decision of the DBS is legally or factually flawed, the assessment of the risk presented by the person concerned, and the appropriateness of including him in a list barring him from regulated activity…, is a matter for the DBS”.

In the subsequent Upper Tribunal case, AB v DBS [2022] UKUT 134 (AAC), the Upper Tribunal decided (albeit in the context of a case that was based on the “risk of harm” rather than the ‘relevant conduct’ gateway) that AB meant that the Upper Tribunal could consider, on appeal under the 2006 Act, a finding of fact by DBS that an individual poses “a risk” of harm but not a DBS assessment of the “level of the risk posed” (see §§49-52 and 64).

When considering appeals of this nature, the Upper Tribunal “must focus on the substance, not the form, and the appeal is against the decision as a whole and not the decision letter, let alone one paragraph…taken in isolation”: XY v ISA at §40).

When considering the Barring Decision, the Upper Tribunal may need to consider both the Final Decision Letter and the document headed ‘Barring Decision Summary’ that is generated by DBS in the course of its decision-making process. The two together, in effect, set out the overall substantive decision and reasons (see AB v DBS [2016] UKUT 386 (AAC) at [35] and Khakh v ISA [2013] EWCA Civ 1341 at §6, 20 and 22).

The statement of law in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 indicates that materiality and procedural fairness are essential features of an error of law and there is nothing in the 2006 Act which provides a basis for departing from that general principle (CD v DBS [2020] UKUT 219 (AAC)).

DBS is not a court of law. Reasons need only be sufficient/adequate. The DBS does not need to engage with every potential issue raised. There are limits, too, as to how far the DBS needs to go in terms of any duty to “investigate” matters or to gather further information for itself, but it must carry out its role in a way that is procedurally fair.

If the Upper Tribunal finds that the DBS made a material mistake of fact or law under section 4(2) of the Act, it is required under section 4(6) of the 2006 Act to either (i) direct that DBS removes the person from the relevant list(s) or (ii) remit the matter to DBS for a new decision. Following AB, the usual order will be remission back to DBS unless no decision other than removal is possible on the facts.