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Legal framework
Legal framework
There are, broadly speaking, three separate ways under Part 1 of Schedule 3 to the Act in which a person may be included on the Children’s Barred List (‘CBL’) or Adults Barred List (‘ABL’), which can generally be described as: (a) Autobar (for Automatic Barring Offences), (b) Autobar (for Automatic Inclusion Offences) and (c) Discretionary or non-automatic barring.
The third category applies in this case. The appeal concerns discretionary barring where a person does not meet the prescribed criteria (has not been convicted of specified criminal offences), but paragraphs 3 and 9 of Schedule 3 to the Act apply.
Paragraphs 3 and 9 of Schedule 3 to the Act, set out the provisions in relation to inclusion on the CBL or ABL. They provide that, following an opportunity for and consideration of representations, DBS “must” include a person on children’s or adults’ barred lists if:
it is satisfied that the person has engaged in relevant conduct, and
(aa) it has reason to believe that the person is or has been or might in future be engaged in regulated activity relating to children / vulnerable adults, and
it is satisfied that it is appropriate to include the person in the list.
‘Relevant conduct’ is defined under paragraphs 4 and 10 of Schedule 3 to the Act. Paragraphs 4(1) and 10(1) of the same, sets out the meaning of “relevant conduct”. It includes: (i) “conduct which endangers a child / vulnerable adult or is likely to endanger a child / vulnerable adult”; (ii) “conduct which, if repeated against or in relation to a child / vulnerable adult, would endanger that child / vulnerable adult or would be likely to endanger him”. Paragraphs 4(2) and 10(2) of the same, provides that conduct “endangers a child / vulnerable adult if” among other things it: (i) “harms” a child / vulnerable adult ; or (ii) puts a child / vulnerable adult “at risk of harm”.
An activity is a “regulated activity relating to children” for the purposes of paragraph 2(8)(b) of Schedule 3 if it falls within one of the subparagraphs in paragraph 1 of Schedule 4 to the Act; that provision broadly defines “regulated activity” and includes, in relation to children, “any form of teaching, training or instruction of children, unless the teaching, training or instruction is merely incidental to teaching, training or instruction of persons who are not children”. An activity is regulated activity relating to vulnerable adults if it falls within paragraph 7. This includes the provision to an adult of healthcare, personal care or social work.
Section 4 of the Act provides for appeals to the UT from the DBS barring decisions:
4 Appeals
An individual who is included in a barred list may appeal to the [ Upper]1 Tribunal against– [...]
a decision under [paragraph 2, 3, 5, 8, 9 or 11]3 of [Schedule 3]4 to include him in the list;
a decision under [paragraph 17, 18 or 18A]5 of that Schedule not to remove him from the list.
An appeal under subsection (1) may be made only on the grounds that [DBS] has made a mistake–
on any point of law;
in any finding of fact which it has made and on which the decision mentioned in that subsection was based.
For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.
An appeal under subsection (1) may be made only with the permission of the [ Upper] Tribunal.
Unless the [ Upper] Tribunal finds that [DBS] has made a mistake of law or fact, it must confirm the decision of [DBS].
If the [ Upper] Tribunal finds that [DBS] has made such a mistake it must–
direct [DBS] to remove the person from the list, or
remit the matter to [DBS] for a new decision.
If the [ Upper] Tribunal remits a matter to [DBS] under subsection (6)(b)–
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.
As underlined above, an Appellant may appeal against the barring on the ground that the DBS has made a mistake:
- 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