[2025] UKUT 270 (AAC)

The relevant legislation is in the Safeguarding Vulnerable Groups Act 2006.

Section 2 of the Act requires the DBS to maintain the children’s and vulnerable adults’ barred lists. By virtue of section 2, Schedule 3 to the Act applies for the purpose of determining whether an individual is included in the list. Regulated activity is determined in accordance with section 5 of, and Schedule 4 to, the 2006 Act. The appellant was clearly engaged in regulated activity when she was a carer.

Schedule 3 to the Act also provides for inclusion by reference to “relevant conduct” by the person included in the list. By virtue of paragraph 3(3) of Schedule 3, the DBS must include the person in the children's barred list if the DBS is satisfied that the person has engaged in relevant conduct, and the DBS has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children, and the DBS is satisfied that it is appropriate to include the person in the list. Relevant conduct is defined in paragraph 4 of Schedule 3 as: conduct which endangers a child or is likely to endanger a child; or conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him; or conduct involving sexual material relating to children (including possession of such material); or conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to the DBS that the conduct is inappropriate; or conduct of a sexual nature involving a child, if it appears to the DBS that the conduct is inappropriate. [Paragraph 4(2) of Schedule 3 provides that a person's conduct endangers a child if the person: harms a child; or causes a child to be harmed; or puts a child at risk of harm; or attempts to harm a child; or incites another to harm a child.]

Section 4 of the Act governs appeals. It provides that an appeal may be made to the Upper Tribunal against a DBS decision only on the grounds that the DBS has made a mistake on any point of law or in any finding of fact which the DBS has made and on which the decision was based. Subsection (3) of section 4 provides that, whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.

Counsel referred the Tribunal to the case of Disclosure and Barring Service v RI