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Allowing in part the appeal against Decision 1 – inclusion on the Children’s Barred List
Allowing in part the appeal against Decision 1 – inclusion on the Children’s Barred List
During the hearing, a further ground of appeal emerged which was clearly arguable.
The Appellant argues that his inclusion on CBL as part of Decision 1 contained a mistake of law. The DBS decided that there was reason to believe that MC had been engaged in regulated activity with children in the past for the following reason set out in the decision letter dated 13 July 2022 in relation to Decision 1:
‘This is because you worked as a Support Worker for E[] Services and previously applied for employment as a Health Assistant and Support worker with checks on both lists.’
The Barring Decision Summary for Decision 1 states:
“MC applied for the position of Support Worker/HCA. One of the agencies he has previously worked for recruits HCA's for hospitals and therefore TRA is met for children”.
Mr Serr submitted that the test for regulated activity with children was therefore satisfied on this basis.
He referred us to A v Disclosure and Barring Service [2025] EWCA Civ 124 (14 February 2025)at [22]:
22.A referred to the "Disclosure and Barring Service Regulated Activity and TRA [Test for Regulated Activity] guidance ("guidance") to its operational staff which he had not previously seen before it had been included in the 'Authorities Bundle' for this Court. He drew our attention to paragraphs 3.7 and 3.8 dealing with the "might in the future" test. The DBS advice was that the likelihood need to be "more than fanciful". Whilst the threshold was low, "there must be evidence upon which to base this assessment. It cannot be based on speculation alone." Further, according to paragraph 3.9 of the Guidance: "Where the legislative criteria for regulated activity with children are not met due to frequency, temporary or occasional work or supervision factors, consideration should be given as to whether it would be reasonable to conclude that the individual satisfies the TRA on the basis that they may carry out the activity often enough, not on a temporary or occasional or without supervision in the future.". Further, A submitted that paragraphs 4.28 and 4.29 of the guidance were relevant to his situation. They provide that:
If an individual has undergone training or achieved a qualification that relates to regulated activity that is group specific, then the TRA can be satisfied on the basis of 'might in the future' in relation to that group. "
If an individual has obtained a qualification or undergone training within the context of employment with a specific vulnerable group, it is unlikely this information alone would support the assessment that the individual 'Might in the Future' engage in regulated activity with the other group."
Pursuant to paragraph 3 of Schedule 3 to the Act, the DBS may only include MC on the CBL if it has reason to believe that the person is or has been or might in future be engaged in regulated activity relating to children.
We disagree with the DBS submissions. There was no evidence before the DBS then or now from which the DBS might rationally have had reason to believe that MC had or might in the future be engaged in regulated activity relating to children. The risk in the future that MC might work with children was fanciful or speculative (and not relied upon by the DBS) and there was no evidence which might give DBS reason to infer that MC had worked in regulated activity with children in the past. The facts of A v DBS can be distinguished and they relate to future risk rather than the past reality of working in regulated activity with children.
The evidence which we accept is that MC had only ever worked in regulated activity with adults in the past through his work for various care agencies. He had not applied for clearance to work with children – it was simply a default decision made by one agency he worked for either to seek clearance for children because the agency provided Health Care Assistants (HCAs) for hospitals. MC was not even working for the agency that sought checks for children at the time of the barring decisions. He had never expressed any intention to work with children in the future. There was insufficient evidence before the DBS from which it might have reason to believe that MC had been or might in future be engaged in regulated activity with children.
This was a mistake of law by the DBS. The explanation for why the second decision maker came to a different view in March 2023 and did not include him on the CBL - is contained at page 243 of the bundle in relation to Decision 2 in March 2023:
“There is no evidence to suggest that MC has previously worked with children in the past and will work with children in future. On this basis the test for regulated activity is not in relation to children.”
The DBS provided no evidence at the hearing suggesting that the Appellant had or might in future engage in regulated activity with children. We therefore allow the appeal against his inclusion on the CBL as part of Decision 1.
We direct that MC be removed from the CBL on the basis of this mistake of law. However, we uphold that part of Decision 1 that MC be included on the ABL because there was no mistake of fact nor law in the making of that decision.
- Heading
- The decision of the Upper Tribunal is that the Appellant’s appeal against the first decision of the DBS dated 13 July 2022 is allowed in part. There was a mistake of law in including him on the Childr
- REASONS FOR DECISION
- Factual background
- The DBS procedure in relation to Decision 1
- The DBS procedure in relation to Decision 2
- The procedure in relation to the Appeal to the UT
- The CCTV Footage
- Legal framework
- a. “on any point of law” (section 4(2)(a) of the Act)
- Relevant general tests/principles
- The grounds of appeal and the Appellant’s submissions
- Facts Found
- Discussion and Analysis
- The 8 grounds of appeal for which permission was granted
- Ground 2 – whether MC “invaded” W’s personal space etc
- Ground 3 – whether MC had no regard to what the manager had said etc
- Ground 4 – whether MC had caused “emotional harm” to W etc
- Ground 5 – whether MC failed to report and/or concealed his conduct etc
- Ground 6 – whether MC had demonstrated “callousness” etc
- Ground 7 – whether there was a “significant risk” of future harm etc
- Ground 8 – in relation to the “transferability” to children etc
- The three grounds of appeal pursued at the hearing
- Issue 1 : Whether the DBS applied the correct statutory test and evidential threshold in deciding to bar the Appellant, including whether it adequately considered mitigating evidence or contradictory
- Issue 2 Proportionality issue : Whether the indefinite bar constitutes a disproportionate interference with the Appellant’s rights under Article 8 of the European Convention on Human Rights (“ECHR”)
- Allowing in part the appeal against Decision 1 – inclusion on the Children’s Barred List
- Conclusions