[2025] UKUT 167 (AAC)

We find that the “relevant conduct” test for vulnerable adults is made out for the reason given by Ms Hartley. As for the issue of proportionality, we note that the recent decision of the Upper Tribunal in KS v Disclosure and Barring Service [2025] UKUT 45 (AAC) helpfully drew together a number of the leading authorities. Thus, it is for the panel to reach our own decision on whether the decision was proportionate but we must give appropriate weight to the DBS’s decision. The decision in KS v DBS applies the four-fold analysis of the Supreme Court in Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700. Although Lords Sumption and Reed expressed themselves in formulating the doctrine of proportionality slightly differently, each confirmed there was no significant difference. Lord Sumption expressed the test in these terms:

“the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them. Before us, the only issue about them concerned (iii), since it was suggested that a measure would be disproportionate if any more limited measure was capable of achieving the objective.”

The objective of the barring scheme, in the most general terms, is to protect children and vulnerable adults from harm by those entrusted with their care in “regulated activity”: see KSv DBS at [58]. A decision under the barring scheme prohibiting the Appellant from engaging in regulated activity is rationally connected to the objective of the scheme. Accordingly, in terms of the Bank Mellat test, limbs (i) and (ii) are clearly met. In terms of limb (iii), under the 2006 Act barring is an “all or nothing” decision and there is, moreover, no legal ability to impose conditions. Given the DBS’s findings, we cannot envisage a less intrusive measure than barring. Turning to limb (iv) of the Bank Mellat test, namely “whether… a fair balance has been struck between the rights of the individual and the interests of the community”,we accept there will inevitably be negative consequences for the Appellant of being barred, not least in terms of his employment and career options. However, those disadvantages are outweighed by the importance of the aim of protecting the vulnerable group concerned. In making that assessment we bear in mind that the Appellant continues to deny or minimise his actions such that the risk of transgression of boundaries remains a live one.

As we find neither ground of appeal is made out, we dismiss the Appellant’s appeal against the DBS’s final decision letter dated 8 April 2024.