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Relevant general tests/principles
Relevant general tests/principles
In order for the Appeal to succeed, under section 4 of the Act, the UT would need to reach a conclusion that DBS made a material mistake on a point of fact or law. The DBS relied on the “relevant conduct” gateway. It therefore needed to be “satisfied” of the following 3 things before barring MC (pursuant to the following paras of Schedule 3 to the Act):
First, under paras 3(3)(aa) and/or 9(3)(aa), MC was at the time, had been in the past, or might in the future be, “engaged” in “regulated activity” (relating to children and/or vulnerable adults).
Second, under paras 3(3)(a) and/or 9(3)(a), MC “engaged” in “relevant conduct” (as further defined under paras 4 and/or 10) [“Relevant Conduct”].
Third, under paras 3(3)(b) and/or 9(3)(b), it was “appropriate” (and proportionate) to include MC on the barred list(s).
Indeed: if satisfied of the above 3 matters, DBS was required, by the Act, to include MC on the relevant lists.
In relation to relevant principles regarding factual mistakes, the UT may consider: PF v DBS [2020] UKUT 256 (AAC); DBS v JHB [2023] EWCA Civ 982; Kihembo v DBS [2023] EWCA Civ 1547; and DBS v RI [2024] EWCA Civ 95.
In relation to whether it is “appropriate” to include a person in a barred list, the UT has limited power to intervene. The same is clear from the Act (s.4(3)) and relevant case law. The scope for challenge, by way of an appeal, is effectively limited to a challenge on proportionality or rationality grounds. DBS is well-equipped to make safeguarding decisions of this kind (DBS v AB [2021] EWCA Civ 1575 (paras 43-44, 55, 66-75)).
At para 55 of DBS v AB, the Court also stated: “[The UT] 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 UT] may do the former but not the latter…”
When considering appeals of this nature, the UT “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 [2011] UKUT 289 (AAC), [2012] AACR 13 (para 40).
When considering the Decision, the UT may need to consider both the Final Letter and Rationale Document (“Barring Decision Summary”). The two together, in effect, set out the overall substantive decision/reasons (see AB v DBS [2016] UKUT 386 (AAC) (para 35); Khakh v ISA [2013] EWCA Civ 1341 (paras 6, 20, 22)).
Classic statements of law such as that in R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 make clear that materiality (or procedural fairness) is an essential feature of an error of law and there is nothing in the Act which provides a basis for departing from that general principle (CD v DBS [2020] UKUT 219 (AAC)).
The DBS is not a court of law. Reasons need only be adequate. DBS does not need to engage with every potential issue raised. There are reasonable limits, too, in practice, as to how far DBS needs to go in terms of any duty to “investigate” matters or to gather further information, etc, itself.
If the UT finds that DBS made a material mistake of fact or law under section 4(2) of the Act, it is required under section 4(6) 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. Where the UT does the latter, the UT may, under section 4(7), set out any findings of fact, which it has made, on which DBS must then base any new decision. Following AB, the usual order will be remission back to DBS unless no decision other than removal is possible on the facts.
- 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