![[2025] UKUT 202 (AAC)](https://backend.juristeca.com/files/emisores/logo_3a2BKne.png){kind=logo}
And they concluded as follows Summary
And they concluded as follows:
Summary
[51] Drawing the various strands together, we conclude as follows:
In those narrow but well-established circumstances in which an error of fact may give rise to an error of law, the tribunal has jurisdiction an error of fact may give rise to an error of law, the tribunal has jurisdiction to interfere with a decision of the DBS under section 4(2)(a).
In relation to factual mistakes, the tribunal may only interfere with the DBS decision if the decision was based on the mistaken finding of fact. This means that the mistake of fact must be material to the decision: it must have made a material contribution to the overall decision.
In determining whether the DBS has made a mistake of fact, the tribunal will consider all the evidence before it and is not confined to the evidence before the decision-maker. The tribunal may hear oral evidence for this purpose.
The tribunal has the power to consider all factual matters other than those relating only to whether or not it is appropriate for an individual to be included in a barred list, which is a matter for the DBS (section 4(3)).
In reaching its own factual findings, the tribunal is able to make findings based directly on the evidence and to draw inferences from the evidence before it.
The tribunal will not defer to the DBS in factual matters but will give appropriate weight to the DBS’s factual findings in matters that engage its expertise. Matters of specialist judgment relating to the risk to the public which an appellant may pose are likely to engage the DBS’s expertise and will therefore in general be accorded weight.
The starting point for the tribunal’s consideration of factual matters is the DBS decision in the sense that an appellant must demonstrate a mistake of law or fact. However, given that the tribunal may consider factual matters for itself, the starting point may not determine the outcome of the appeal. The starting point is likely to make no practical difference in those cases in which the tribunal receives evidence that was not before the decision-maker.
In AB v DBS [2022] UKUT 134 (AAC) the Upper Tribunal considered the competing arguments in AB v DBS [2021] EWCA Civ 1575 and PF v DBS:
The question is then where this all leaves the Upper Tribunal in practical terms in the exercise of its appellate jurisdiction in safeguarding cases.
On the one hand, the Court of Appeal has stated that “the assessment of the risk presented by the person concerned… is a matter for the DBS” (DBS v AB at paragraph [43]).
On the other hand, in cases in which the DBS relies on a risk of harm under paragraph 5 of Schedule 3, rather than ‘relevant conduct’ under paragraph 3, the Upper Tribunal may have to determine as a question of fact whether a person “may—(a) harm a child, (b) cause a child to be harmed, (c) put a child at risk of harm” (etc) (see paragraph 5(4)).
There is, in our view, a way of squaring this circle while respecting both Court of Appeal authority and the primacy of statute (and in particular section 4(1) to (3) of the 2006 Act). We return to the ambiguity we identified in the passage from DBS v AB discussed at paragraph 34 above. We are satisfied that the Court of Appeal was saying no more than that the element of the risk assessment which is part and parcel of the assessment of appropriateness for the purposes of deciding whether to place the individual on a barred list is non-appealable. This reading is consistent with the fact that any decision taken under paragraph 5 of Schedule 3 – which, as we have seen, necessarily includes some findings as to risk – to include an individual on the Children’s Barred List is undoubtedly appealable (see section 4(1)(b)). To that extent we do agree with Mr Geering.
In this context, however, we make a distinction between (i) deciding as a matter of fact whether a person poses a risk; and (ii) deciding on the level of the risk posed by way of a risk assessment.