MN v The Disclosure and Barring Service

This decision is given under section 4 of the Safeguarding Vulnerable Groups Act 2006 The appeal is allowed. The decision of the DBS made on 17 August 2023 to include the appellant on the Children’s and Adults’ Barred Lists involved a mistake on a point of material fact. Pursuant to section 4(6)(b) of Safeguarding Vulnerable Groups Act 2006 the Upper Tribunal remits the matter to the DBS for a new decision. The Upper Tribunal directs that the DBS shall not remove the Appellant’s name from the Children’s and Adults’ Barred List pending the making of the new decision. REASONS FOR DECISION

1. This is an appeal by MN against the DBS’s decision of 17 August 2023 to include his name on the Adults’ and Children’s Barred Lists.

2. We allow the appeal by MN and remit his case to the DBS to make a new decision. MN will remain on both barred lists in the meantime.

3. The appeal is allowed, in effect by the consent of the parties at yesterday’s hearing, because the DBS made a mistake about a material fact. We explain further below what that mistake was.

4. The DBS’s decision was an ‘auto-bar with representations’ one made under paragraphs 2 and 8 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (“the SVGA”). Nothing of any material importance turns on this in this appeal.

5. The decision was based on the fact that MN on 18 October 2017 had been cautioned in respect of two offences under section 1(1) of the Children and Young Person Act 1933. That subsection of the 1933 Act creates an offence as follows: “Cruelty to persons under sixteen. 1.- (1) If any person who has attained the age of sixteen years and has responsibility for any child or young person under that age, wilfully assaults, ill-treats  (whether physically or otherwise), neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated  (whether physically or otherwise), neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health  (whether the suffering or injury is of a physical or a psychological nature), that person shall be guilty of an offence..”

6. The DBS was satisfied that the context of the cautions was that: (i) on 2 or 3 September 2017, MN had hit his 9 year old son on the back with his slipper, causing injury, (ii) on 16 September 2017, MN had forcefully put another son into a car seat, which caused a laceration to his back, and (iii) on 23 August 2019, MN had grabbed his 11 year old son by the face, swore at him and spat in his face approximately 10 times. The applicant also told his then 5 year old disabled son to hit his 11 year old son with a stick, which he did.

7. MN does not have permission to appeal against any of these findings.

8. The Upper Tribunal’s appellate jurisdiction is provided for under section 4 of the SVGA, which provides (insofar as relevant) as follows: “Appeals 4.-(1) An individual who is included in a barred list may appeal to the Upper Tribunal against— (b) a decision…..to include him in 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.”

9. The following decisions set out the bounds of the jurisdiction of the Upper Tribunal in exercising its appellate jurisdiction under section 4 of the SVGA cases. First, the appropriateness of a barring decision is not a matter for the Upper Tribunal on appeal. Second, for an appeal to succeed it needs to be shown, on the balance of probabilities, that the DBS made either a material error of law or a material error of fact in its decision: R v (RCN and others) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin) (at paragraph 104) and PF v DBS [2020] UKUT 256 (AAC); [2021] AACR

3. Third, if it is argued that a decision to include a person on a barred list is disproportionate to the relevant conduct or risk of harm relied on by the DBS, the Upper Tribunal must afford appropriate weight to the judgement of the DBS as the body enabled by statute to decide appropriateness: SA v SB & RCN [2012] EWCA Civ 977; [2013] AACR

24. Fourth, what needs to be considered is not the terms of the decision letter alone but the whole basis for the decision as evidenced on the papers the DBS considered in coming to its decision: VT –v- ISA [2011] UKUT 427 (AAC) (at paragraph 36).

10. The primacy of the DBS’s role as decision maker under the SVGA has been underscored and reaffirmed by the Court of Appeal in DBS v AB [2021] EWCA Civ 1575: see in particular paragraph [43] of that decision. The Court of Appeal in AB have also settled that there is a very limited basis on which the Upper Tribunal can direct that a person be removed from a Barred List under section 4(6) of the Act. The duty to direct removal only arises in circumstances where “that is the only decision the DBS could lawfully reach in the light of the law and facts as found by the Upper Tribunal” (AB at para. [73]).

11. The crux of the DBS’s decision for the purposes of this appeal concerns why it was satisfied that it was appropriate to include the appellant on both barred lists and the facts it took into account in doing so. The critical passage in the DBS’s decision letter reads as follows: “It is acknowledged that you have not received any further cautions or convictions since October 2017, that no further concerns have been raised regarding your conduct towards your own children since August 2019, that your four children, two of whom have disabilities, remain in yours and your wife’s care and that Children’s Services closed the children’s cases in June 2020 following your completion of direct work on the impact of domestic abuse and behaviour management. However, there is no evidence to indicate that you have worked in any regulated activity position with children since without any concerns being raised regarding your conduct. The DBS must give consideration to all roles that you could engage in within regulated activity including circumstances where children may present with more highly challenging and disobedient behaviour, where you may be required to be the sole carer for highly challenging children or where you could be working alongside colleagues who engage in similar harmful behaviour. The DBS is concerned that you may fail to appropriately safeguard children who display challenging behaviours in such situations.” (The underlining is ours and has been added for emphasis.)

12. The sole ground on which MN has permission to appeal against the DBS’s decision arises out of his evidence, given at the permission to appeal stage, that he had in fact continued to work for an integrated transport services company, providing school contract work for children with special educational needs and disabilities (SEND), and had worked in that role without incident after the above cautions and before the DBS made its barring decision. This shows, which is not disputed, that the appellant had in fact worked in regulated activity with children from around November 2022 to at least November 2023, as a SEND driver for Integrated Transport Services in Lancashire: see the transport manager’s email letter at page 16 of the Upper Tribunal bundle. It would seem that the appellant continued in that work after 17 August 2023 and may still be carrying out that work to date. Whether it was lawful for him to do so after the barring decision of 17 August 2023 is not a matter for us.

13. This evidence was not put before the DBS before it made its decision on 17 August 2023 and so it cannot provide any basis for the DBS having erred in law in not taking account of that evidence, as it did not have sight of it.

14. However, in our judgement this evidence does show that the DBS made a mistake about a material fact in its decision of 17 August 2023. That mistake of fact was the DBS’s finding, which we have underlined in the passage quoted in paragraph 11 above, that the appellant had not in fact worked in regulated activity with children without any concerns being raised about his conduct. The evidence we have summarised in paragraph 12 above shows that that finding of fact was mistaken as the appellant had in fact worked in regulated activity with children (as a SEND driver) for around nine months before the date of the DBS’s decision and with no concerns being raised about his conduct. Moreover, given the role of the passage quoted in paragraph 11 above in the DBS’s decision making, that mistake of fact was material to the barring decision of 17 August 2023. The DBS’s decision was founded, in part, on there being an absence of evidence of the appellant having worked in regulated activity with no concerns being raised about that work. We are satisfied that the DBS therefore considered the fact of the absence of such evidence to be a material factor in its decision, and we do not consider the decision can be read in any other way. The converse (that is, the existence of such evidence) must in our view also be material to the DBS’s decision, and so means the decision was based on a mistake about a (material) fact.

15. The extent of that fact’s (i.e. the working in regulated activity with children) wider materiality to the DBS’s decision on whether to continue to bar the appellant from working with children and vulnerable adults was not argued before us and is a matter for the DBS to decide as part of its overall consideration of whether it is appropriate to retain the appellant’s name on both barred lists: see further on this AB at paragraphs [72]-[73] and Kihembo v Disclosure and Barring Service [2023] EWCA Civ 1547 at paragraphs [15] and [20]-[22]. Relevant factors may include whether the appellant has been working in breach of the barring decision since 17 August 2023 and the extent of his engagement with the SEND children when working as their driver.

16. Given the limited scope of the one ground of appeal that has succeeded and the factual (and other) findings in the DBS’s decision which remain undisturbed, and guided by paragraph [73] of AB, there is no proper or rational basis for removing the appellant from the barred lists because of the mistake of fact we have held the DBS made. Nor, for the same reasons, should the appellant be removed from the barred lists until the DBS makes its new barring decision.

17. For these reasons, this appeal is allowed and we give the decision in the terms set out above. Authorised for issue by Stewart Wright Judge of the Upper Tribunal Elizabeth Bainbridge Member of the Upper Tribunal Suzanna Jacoby Member of the Upper Tribunal On 12 December 2025