[2025] UKUT 321 (AAC)

In carrying out its assessment of proportionality the Upper Tribunal is not undertaking a rationality assessment of the DBS’s decision proportionality but making our own assessment. We are not concerned with the process followed by the DBS in assessing proportionality but makes the assessment afresh for itself (KS at para. 50).

It is accepted that barring represents an interference with a person’s private life for the purpose of Article 8 of the European Convention on Human Rights (ECHR) but the question is whether it is proportionate. We consider that there was no mistake of law in the barring decision based upon the findings made at the time, and as now made following the hearing, on the grounds of proportionality.

In summary, the proportionality of DBS’s decisions to include individuals on the barred lists should be examined applying the tests laid down by Lord Wilson in R (Aguilar Quila) v Secretary of Stage for the Home Department [2012] 1 AC 621 at para 45:

These four questions were later developed by Lord Sumption in Bank Mellat [2013] UKSC 39 at 20:

In assessing proportionality, the Upper Tribunal has ‘…to give appropriate weight to the decision of a body charged by statute with a task of expert evaluation’ (see Independent Safeguarding Authority v SB [2012] EWCA Civ 977 at [17] as set out above). However, we must conduct our own assessment of proportionality afresh rather than simply review the DBS’s assessment.

We are satisfied that each of questions a)-d) should be answered in favour of inclusion on the ABL being proportionate based on the finding that the DBS made at the time (and that finding is confirmed because we have found the finding contained no mistakes of fact).

On the basis of the finding that the DBS made and we have upheld, we are satisfied that it was proportionate and reasonably necessary to bar MOO from regulated activity with vulnerable adults in order to achieve the public interest in the (important and) legitimate safeguarding aim.

There is no real question that the public interest and legislative objective of safeguarding vulnerable groups is sufficiently important to justify the interference with private life that barring constitutes and that barring is rationally connected to protecting those groups.

We are satisfied that no other measures were available sufficient to adequately safeguard the risk of future harm that the DBS rationally decided that MOO posed. We are satisfied that the DBS was entitled to consider that the Appellant presented a risk of harm to vulnerable adults at the time of the decision based upon the findings as originally made and upheld by us. The decision that the Appellant posed a risk of repeating similar acts at the time of the Decisions was also rational. We find that the DBS’s evaluation of the future risk continues to be rational as at the time of the hearing.

In so far as striking a fair balance is concerned, the question is whether, balancing the severity of the effects of barring on the rights of the Appellant against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. In circumstances where the objective of the barring decision is the protection of vulnerable adults, there are other sectors in which MOO can work and no other effects of barring (beyond the loss of her ability to work in regulated activity) are raised, the effect of barring on the rights of the Appellant does not outweigh the objective of the barring decision in this case.

We consider the barring Decision to include MOO on the ABL to be proportionate because it strikes a fair balance bearing in mind the following aggravating and mitigating factors: