Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 321 (AAC)

Fecha: 06-Ago-2025

Legal framework

Legal framework

Barring decisions

36.

There are, broadly speaking, three separate ways under Part 1 of Schedule 3 to the Act in which a person may be included on the Children’s Barred List (‘CBL’) or Adults Barred List (‘ABL’), which can generally be described as: (a) Autobar (for Automatic Barring Offences), (b) Autobar (for Automatic Inclusion Offences) and (c) Discretionary or non-automatic barring.

37.

The third category applies in this case. The appeal concerns discretionary barring where a person does not meet the prescribed criteria (has not been convicted of specified criminal offences), but paragraph 9 of Schedule 3 to the Act applies.

38.

Paragraph 9 of Schedule 3 to the Act, set out the provisions in relation to inclusion on the ABL. It provides that, following an opportunity for and consideration of representations, the DBS “must” include a person on the adults’ barred list if:

(a)

it is satisfied that the person has engaged in relevant conduct, and

(aa) it has reason to believe that the person is or has been or might in future be engaged in regulated activity relating to vulnerable adults, and

(b)

it is satisfied that it is appropriate to include the person in the list.

39.

‘Relevant conduct’ in relation to vulnerable adults is defined under paragraph 10 of Schedule 3 to the Act. Paragraph 10(1) sets out the meaning of “relevant conduct”. It includes: (i) “conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult”; (ii) “conduct which, if repeated against or in relation to a vulnerable adult, would endanger that vulnerable adult or would be likely to endanger him”. Paragraph10(2) provides that conduct “endangers a vulnerable adult if” among other things it: (i) “harms” a vulnerable adult ; or (ii) puts a vulnerable adult “at risk of harm”.

40.

An activity is a “regulated activity relating to vulnerable adults” for the purposes of paragraph 8(8)(b) of Schedule 3 if it falls within one of the subparagraphs in paragraph 7 of Schedule 4 to the Act; that provision broadly defines “regulated activity” and includes, in relation to vulnerable adults, the provision to an adult of healthcare, personal care or social work.

The UT’s jurisdiction on appeal

41.

Section 4 of the Act provides for appeals to the UT from the DBS barring decisions:

4 Appeals

(1)

An individual who is included in a barred list may appeal to the [ Upper]1 Tribunal against– [...]

(b)

a decision under [paragraph 2, 3, 5, 8, 9 or 11]3 of [Schedule 3]4 to include him in the list;

(c)

a decision under [paragraph 17, 18 or 18A]5 of that Schedule not to remove him from the list.

(2)

An appeal under subsection (1) may be made only on the grounds that [DBS] has made a mistake–

(a)

on any point of law;

(b)

in any finding of fact which it has made and on which the decision mentioned in that subsection was based.

(3)

For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.

(4)

An appeal under subsection (1) may be made only with the permission of the [ Upper] Tribunal.

(5)

Unless the [ Upper] Tribunal finds that [DBS] has made a mistake of law or fact, it must confirm the decision of [DBS].

(6)

If the [ Upper] Tribunal finds that [DBS] has made such a mistake it must–

(a)

direct [DBS] to remove the person from the list, or

(b)

remit the matter to [DBS] for a new decision.

(7)

If the [ Upper] Tribunal remits a matter to [DBS] under subsection (6)(b)–

(a)

the [ Upper] Tribunal may set out any findings of fact which it has made (on which [DBS] must base its new decision); and

(b)

the person must be removed from the list until [DBS] makes its new decision, unless the [ Upper] Tribunal directs otherwise.

42.

As underlined above, an Appellant may appeal against the barring on the ground that the DBS has made a mistake: