[2025] UKUT 228 (AAC)

We recognise that VMAC raised a wide-ranging set of challenges to the DBS’s Barring Decision dated 05 September 2023. However, the Upper Tribunal granted VMAC permission to appeal on limited grounds, and he did not ask to have the limited grant of permission reconsidered at an oral hearing.

We have therefore considered his appeal in terms of the grounds where permission to appeal was granted, which are summarised at paragraph 13 above.

We took particular account of the Upper Tribunal’s decision in XY v ISA [2012] 13 AACR. The Independent Safeguarding Authority was the predecessor body to the DBS and made equivalent decisions under SVGA 2006.

At paragraph 40 of its decision in XY v ISA, the Upper Tribunal stated:

“Third, we echo the criticisms made by both counsel of the terms of ISA’s letter of 19 July 2010. However, the appellant’s right of appeal lies against “a decision under paragraph 3 … of that Schedule to include him in the list” (section 4(1)(b) of the 2006 Act). The decision in question was the decision ultimately taken on 26 May 2010 by the ISA Board’s Case Committee. For the reasons set out above, that decision itself was not flawed by any misapplication of the burden of proof. In short, we 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 in that letter, taken in isolation.”

We also took account of the decision of VW v ISA [2011] UKUR 435 (AAC) (“VW”). In VW, the Upper Tribunal emphasised that the Barring Decision Process document is what primarily sets out the decision. At paragraph 45 of VW, the Upper Tribunal addressed the argument for the ISA that the Barring Decision Process document was primarily an internal decision-making document, not one written by lawyers and should be read in a commonsense way and as a whole. The Upper Tribunal wrote:

“While not disagreeing with such an approach, the seriousness of the impact of a decision to bar or not to remove a person from the list for that individual means that even if applying the above test the occasional infelicity of language may be overlooked, the sort of commonsense approach required will involve a challenging approach to the substance of what is said.”

In VW, the Upper Tribunal decided that the ISA made errors of law and fact in terms of the testimonials that VW had provided. The Upper Tribunal explained that the ISA caseworker noted that only two of the testimonials seemed to be aware of VW’s conviction, but three testimonials stated they were aware of the conviction, and it was to be inferred from four other testimonials that they were also aware. The Upper Tribunal decided that the statement in the Barring Decision Process summary about how many of the testimonials knew about the conviction was a finding of fact (even if its purpose was to assist the respondent in evaluating the evidence) and as such, was incorrect. The Upper Tribunal also decided that the statement was an error of law because it was a position no reasonable decision maker could adopt on the evidence before it. This was because on any possible view, the number of testimonials that knew about the conviction were three, and in the Upper Tribunal’s view, it was six. See paragraph 53 of the decision in VW.

In VW, the Upper Tribunal proceeded to address the argument for the ISA that any shortcomings in relation to the references were cured by how they were treated elsewhere in the Barring Decision Process summary. The Upper Tribunal did not accept this. It acknowledged the ISA had used the references elsewhere but concluded that although the ISA was acknowledging their relevance in doing so, its conclusion to give them little weight remained unaffected. For the same reason, the Upper Tribunal rejected the ISA’s argument that the reasoning in respect of weight was more copious than stated. See paragraph 54 of the decision in VW.