[2025] UKUT 228 (AAC)

We have considered whether the mistake of fact identified above was, in accordance with section 4(2)(b), one on which the Barring Decision was based, and we have considered whether the mistakes of law were material.

We did not accept Mr Richards’ argument that the mistake of fact made by the DBS was not one on which the Barring Decision was based within the meaning of section 4(2)(b) of the SVGA 2006.

The DBS stated in the Final Decision Letter dated 05 September 2023 and the equivalent wording of the Barring Decision Process summary, that it had not been provided with any supporting evidence to mitigate the future risk identified. It is adequately clear from that wording, read fairly as a whole, that the DBS based its Barring Decision on there being no supporting evidence to mitigate the risk if VMAC were allowed to work with vulnerable adults. This was incorrect because there was evidence, in the form of the AC risk assessment dated 30 September 2022.

The earlier acknowledgement that there was evidence from AC, in the way set out in the Minded to Bar letter, does not cure that defect. We rely on, and adopt, the approach indicated in VW where the Upper Tribunal confirmed that where DBS had treated evidence in a flawed way, it could not necessarily be cured by considering the same evidence in a less flawed manner elsewhere in the Barring Decision process document.

In any event, when the DBS referred to the AC evidence elsewhere in its decision-making process, it still considered it in a flawed manner. For the reasons set out above, we have concluded the DBS did not adequately address the AC risk assessment when it did refer to it. This includes the failure to reflect the full extent of the specific paragraph from which the DBS quoted. It also includes the failure to consider other parts of the risk assessment, for example, its assessment of what work VMAC would be undertaking.

We were not persuaded by Mr Richards’ arguments that the AC risk assessment dated 30 September 2022 could not be seen as a robust piece of evidence. We acknowledge that it was considering risk in the context of AC’s specific work and their specific service users. However, the safeguarding policy set out within the risk assessment, the individual elements of the assessment and LC’s explanation of the approach AC took towards evaluating risk in safeguarding, provide evidence of an employer that had vulnerable users at the forefront of its assessment, had identified what challenges those users would present to VMAC, and the type of work he would carry out in respect of them. We did not accept Mr Richards’ arguments that the risk assessment was insufficiently robust and therefore it would not be material for the DBS to fail to take it into account (including failing to do so adequately).

Finally, we considered Mr Richards’ arguments at the hearing that the evidence LC gave at the hearing indicates the AC risk assessment had only considered the conditional caution and not the wider circumstances that the DBS had taken into account. In his skeleton argument, Mr Richards argued that the risk assessment appeared to wrongly minimise VMAC’s wrongdoing. Mr Richards argued that this, together with the remainder of the reasoning the DBS used in the Final Decision Letter dated 05 September 2023, would be insufficient to move the needle to conclude that the mistake of fact or law was material.

We are not certain that Mr Richards’ analogy with moving the needle, reflects the test we have to apply. We prefer the explanation of materiality given in R(Iran) v SSHD [2005] EWCA Civ. 982. As explained in CD v DBS [2020], the SVGA 2006 does not provide any basis for departing from the principles established in R(Iran) in relation to errors of law. As stated by the Court of Appeal at paragraph 10 of R(Iran):

“Each of these grounds for detecting an error of law contain the word “material” (or “immaterial”). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

Applying that test, we are satisfied that the errors of law identified above were material, and, to the extent the test for mistake of fact set out in section 4(2)(b) imports materiality (see PF v DBS [2020] UKUT 256 (AAC)), it was material. In circumstances where the DBS has not set out any clear analysis of the evidence from AC dated 30 September 2022, and has elsewhere stated that (despite the AC evidence) there was no supporting evidence to mitigate the future risk it had identified, it cannot be said that the errors of law and the error of fact, would have made no difference to the outcome. Putting it another way (as set out in CD v DBS), we cannot say the same decision would be bound to have been reached had the DBS not made the mistakes of law and the mistake of fact in question.