[2025] UKUT 219 (AAC)

In this part of the decision, we summarise the legal framework governing barring decisions. Schedule 3 to the 2006 Act provides for several ways in which a person’s name may be included by the DBS on a barred list. In the present case the DBS relied upon the ‘relevant conduct’ gateway, which (as regards the Adults’ Barred List) required the DBS to be ‘satisfied’ of three things, namely:

If the DBS was satisfied of all three matters above, it was required by the 2006 Act to place the Appellant’s name on the Adults’ Barred List. There are equivalent provisions governing inclusion in the Children’s Barred List.

Section 4 of the 2006 Act sets out the circumstances in which an individual may appeal to the Upper Tribunal against the inclusion of their name in either or both of the barred lists. An appeal may be made only on grounds that the DBS has made a mistake on any point of law or in any finding of fact which it has made and on which the Barring Decision was based (see section 4(1) and (2)). Section 4(3) provides that, for the purposes of section 4(2), whether it is “appropriate” for an individual to be included in a barred list is “not a question of law or fact” and so, to that extent at least, is non-appealable. An appeal under section 4 may only be made with the permission of the Upper Tribunal (see section 4(4)).

The relevant principles regarding factual mistakes have been set out in several recent decisions of the Court of Appeal, which are binding on the Upper Tribunal (see DBS v JHB [2023] EWCA Civ 982; Kihembov DBS [2023] EWCA Civ 1547; and DBS v RI [2024] EWCA Civ 95 and see also the Upper Tribunal’s decision in PF v DBS [2020] UKUT 256 (AAC)).

As to whether it is “appropriate” to include a person in a barred list, the Upper Tribunal has only limited powers to intervene, as noted above. This is clear from the section 4(3) of the 2006 Act and the relevant case law. The scope for challenge by way of an appeal is effectively limited to a challenge on proportionality or rationality grounds. Thus, at paragraph [55] of DBS v AB, the Court of Appeal cautioned:

“[The Upper Tribunal] will need to distinguish carefully a finding of fact from value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness. The Upper Tribunal may do the former but not the latter…”.

The Court of Appeal added at paragraph [43] of DBS v AB:

“…unless the decision of the DBS is legally or factually flawed, the assessment of the risk presented by the person concerned, and the appropriateness of including him in a list barring him from regulated activity…, is a matter for the DBS”.

In the subsequent Upper Tribunal case, AB v DBS [2022] UKUT 134 (AAC), the Upper Tribunal decided (albeit in the context of a case that was based on the ‘risk of harm’ rather than the ‘relevant conduct’ gateway) that DBS v AB meant that the Upper Tribunal could consider, on appeal under the 2006 Act, a finding of fact by DBS that an individual poses “a risk” of harm but not a DBS assessment of the “level of the risk posed” (see [49]-[52] and [64]).

When considering appeals of this nature, the Upper Tribunal “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…taken in isolation”: XY v ISA [2011] UKUT 289 (AAC), [2012] AACR 13 (at [40]). As such, when considering the Barring Decision, the Upper Tribunal may need to consider both the final decision letter and the internal document headed ‘Barring Decision Summary’ that is generated by DBS as part of its decision-making process. The two documents together, in effect, set out the overall substantive decision and reasons (see AB v DBS [2016] UKUT 386 (AAC) at [35] and Khakh v ISA [2013] EWCA Civ 1341 at [6], [20] and [22]).

The statement of law in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 indicates that materiality and procedural fairness are essential features of an error of law. There is nothing in the 2006 Act which provides a basis for departing from that general principle (CD v DBS [2020] UKUT 219 (AAC)).

Finally, unless the Upper Tribunal finds that the DBS has made a material mistake of fact or law, it must confirm the decision of the DBS (see section 4(5) of the 2006 Act). If the Upper Tribunal finds that the DBS has made such a mistake it must either direct the DBS to remove the person from the list or remit the matter to DBS for a new decision. Following DBS v AB [2021] EWCA Civ 1575, the usual final order will be remission back to DBS unless no decision other than removal is possible on the facts. If the Upper Tribunal remits a matter to DBS under section 4(6)(b), the Upper Tribunal may set out any findings of fact which it has made (and on which the DBS must base its new decision) and the person must be removed from the list until the DBS makes its new decision, unless the Upper Tribunal directs otherwise.