{"id":673057,"date":"2026-04-24T14:55:30","date_gmt":"2026-04-24T12:55:30","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/sv-v-dbs\/"},"modified":"2026-04-24T14:55:30","modified_gmt":"2026-04-24T12:55:30","slug":"sv-v-dbs","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/ru\/jurisprudences\/sv-v-dbs\/","title":{"rendered":"SV v DBS"},"content":{"rendered":"<div class=\"kji-decision\">\n<div class=\"kji-full-text\">\n<p>On appeal from the Disclosure and Barring Service (\u201cDBS\u201d) DBS Reference: 00900357370 Final Decision Letter: 17 January 2020 The decision of the Upper Tribunal is to allow the appeal. The decision of DBS made on 17 January 2020 was made in error of law. Pursuant to Section 4(6)(b) of the Safeguarding Vulnerable Groups Act 2006 (\u201c2006 Act\u201d) this case is remitted to DBS for a new decision. REASONS FOR DECISION What this appeal is about 1. This appeal is about SV, who had been working since 2004 as a health care assistant in nursing homes, and since 2010 for Lillian Faithful Care. It was alleged that on 21 August 2018, while working the night shift in the New Wing at Resthaven Nursing Home, SV sat in a chair in a room on the first floor where no residents were present from 12:45am until 6:00am, thereby neglecting the residents on the ward for which he was responsible by failing to ensure all the required care and safety checks were done, and that he unplugged the call bell of a 93-year-old resident on the ground floor of the New Wing, leaving her unable to call for assistance (the \u201c2018 Incident\u201d). 2. SV\u2019s employer carried out an investigation into the 2018 Incident and found the allegations to be proved. SV was dismissed following a disciplinary procedure. His employer made a referral to DBS (see \u2018The law\u2019 below) in relation to the 2018 Incident. 3. A caseworker at DBS considered the material from the referral and decided that, even if the allegations in respect of SV were made out, it would not be appropriate to include him in any Barred List (see \u2018The law\u2019 below). On 17 January 2019 DBS informed SV of its \u201cno barring action\u201d decision. 4. However, on 29 August 2019 DBS wrote to SV to say that as part of its \u201ccommitment to safeguarding\u201d its decisions were subject to \u201cinternal quality assurance and internal review processes\u201d, and that it was reconsidering its decision in relation to his case. On 24 January 2020 DBS informed SV it had decided that it was, after all, appropriate for him to be included in both Barred Lists (the \u201cBarring Decision\u201d). 5. This is SV\u2019s appeal against the Barring Decision. The hearing of the appeal 6. The oral hearing of this appeal was conducted remotely via CVP. SV represented himself, while the Respondent was represented by Mr Serr of counsel, instructed by Elizabeth Eagles of DBS. We were assisted by an interpreter who translated as and where required given that, while SV has a good command of \u201ceveryday\u201d English, he struggled to understand, or to express himself fully, when it came to more technical matters. 7. The case which SV argued at his hearing was very simple: he denied that he neglected residents and he insisted that the evidence did not support the Respondent\u2019s conclusion that he did: he denied that he failed to check on the residents on the first floor for whom he was responsible during the shift in question, he denied unplugging the call bell of the resident on the ground floor, and he denied that he had any supervisory responsibility in respect of the agency carer who was working on the ground floor. He maintained that the Respondent\u2019s investigation was unfair and that the Barring Decision should be set aside. He did not pursue the more technical arguments that had been made previously by his representative (who was no longer acting), and on which permission was granted, but we exercised our inquisitorial jurisdiction to explore those issues with Mr Serr nonetheless. 8. In his helpful oral submissions Mr Serr expanded on the arguments advanced by the Respondent in written submissions, addressing the grounds on which I had granted permission very clearly. 9. At the end of the hearing I made an oral direction for the Respondent to provide written submissions on the legal and factual basis for its power to reopen SV\u2019s case. This was duly provided. The issues 10. In this appeal we must decide three main issues: (1) Having investigated the 2018 Incident and having informed SV that he would not be included in either of the Barred Lists: a. did DBS have the power to reopen the case for placing SV on the Barred Lists for that same incident? b. was it entitled to exercise that power to reopen SV\u2019s case? We decided that the answer to both a. and b. was \u201cyes\u201d, and we explain why below. (2) Was the Barring Decision based on any material mistake on any point of law or in any finding of fact? We decided that it was, and we explain why below. (3) Should we exercise our discretion in favour of: a. directing DBS to remove SV\u2019s name from the Barred Lists; or b. remitting the matter back to DBS for a new decision? We decided that it was appropriate in this case to remit the matter back to DBS for a new decision, and we explain why below. The law 11. DBS was established by the Protection of Freedoms Act 2012, taking on the functions of the Criminal Records Bureau and the Independent Safeguarding Authority. One of its main functions is the maintenance of the children\u2019s barred list and the adults\u2019 barred list (the \u201cBarred Lists\u201d, and each a \u201cBarred List\u201d). Its power and duty to do so arises under the Safeguarding Vulnerable Groups Act 2006 (the \u201c2006 Act\u201d). DBS\u2019s duty to maintain the Barred Lists 12. Section 2(1)(a) of the 2006 Act places a duty on the DBS to maintain the Barred Lists. Under Section 3(2)(a) of the 2006 Act a person is barred from \u201cregulated activity\u201d relating to children if they are included in the children\u2019s barred list. Under Section 3(3)(a) a person is barred from \u201cregulated activity\u201d relating to vulnerable adults if they are included in the adults\u2019 barred list. Duty of specified bodies to provide information and DBS duty to consider relevant information 13. To assist DBS in fulfilling its statutory duty to maintain the Barred Lists Sections 37, 40, 42 and 46 of the 2006 Act impose duties on specified bodies to provide DBS with information. Paragraph 13 of Schedule 3 to the 2006 Act imposes a duty on DBS \u201cto ensure that in respect of any information it receives from whatever source or of whatever nature it considers whether it is relevant to its consideration as to whether the individual should be included in each barred list.\u201d 14. Paragraph 18 of Schedule 8 to the Protection of Freedoms Act 2012 empowers DBS to do \u201csuch other things as DBS considers necessary or expedient\u201d in connection with the exercise of its functions. Criteria for inclusion in the Barred Lists 15. Schedule 3 to the 2006 Act applies for the purposes of DBS determining whether an individual is included in either or both Barred Lists. Review of decisions to include persons in the Barred Lists 16. Paragraphs 18 and 18A of Schedule 3 to the 2006 Act include provision for DBS to review decisions to include persons in the Barred Lists, either on the application of the person the decision relates to (paragraph 18) or at the instigation of DBS (paragraph 18A): \u201c18 (1) A person who is included in a barred list may apply to DBS for a review of his inclusion. (2) An application for a review may be made only with permission of DBS. (3) A person may apply for permission only if- (a) the application is made after the end of the minimum barred period, and (b) in the prescribed period ending with the time when he applies for permission he has made no other such application. (4) DBS must not grant permission unless it thinks- (a) that the person\u2019s circumstances have changed since he was included in the list or since he last applied for permission (as the case may be), and (b) that the change is such that permission should be granted. (5) On a review of a person\u2019s inclusion, if DBS is satisfied that it is no longer appropriate for him to be included in the list it must remove him from it, otherwise it must dismiss the application. (6) The minimum barred period is the prescribed period beginning with such of the following as may be prescribed- (a) the date on which the person was first included in the list, (b) the date on which any criterion prescribed for the purposes of paragraph 1, 2, 7 or 8 is first satisfied; (c) where the person is included in the list on the grounds that he has been convicted of an offence in respect of which a custodial sentence (within the meaning of section 76 of the Powers of Criminal Courts (Sentencing) Act 200 (c. 6) or section 222 of the Sentencing Code) Was imposed, the date of his release; (d) the date on which the person made any representations as to why he should not be included in the list. 18A(1) Sub-paragraph (2) applies if a person\u2019s inclusion in a barred list is not subject to- (a) a review under paragraph 18, or (b) an application under that paragraph, which has not yet been determined. (2) DBS may, at any time, review the person\u2019s inclusion in the list. (3) On any such review, DBS may remove the person from the list if, and only if, it is satisfied that, in the light of- (a) information which it did not have at the time of the person\u2019s inclusion in the list, (b) any change of circumstances relating to the person concerned, or (c) any error by DBS, it is not appropriate for the person to be included in the list.\u201d Appeals of decisions to include, or not to remove, persons in the Barred Lists 17. Section 4 of the 2006 Act provides for a right of appeal to the Upper Tribunal in limited circumstances: \u201c4. Appeals (1) An individual who is included in a barred list may appeal to the Upper Tribunal against- \u2026.. (b) a decision under paragraph 2, 3, 5, 8, 9 or 11 of Schedule 3 to include him in the list; (c) a decision under paragraph 17, 18 or 18A 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 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.\u201d Discussion Question 1 a: Does DBS have the power to reopen \u201cno barring action\u201d cases? 18. The first issue that arises is whether DBS has the power to re-open closed cases. 19. It is well-established that public authorities must have a legal basis for their actions: \u201cA public body can only do that which it is authorised to do by positive law\u201d (per Buxton LJ in R v Richmond LBC ex p. Watson [2001] QB 370 (CA) at [385C). A public body\u2019s actions must fall within the relevant legal boundaries of that power, and its powers must be exercised in accordance with the principles of public law. 20. Unless DBS had the power to reopen the case for SV\u2019s inclusion in the Barred Lists, having previously considered the referral by his employer, Lillian Faithful Care, in respect of the 2018 Incident and made a \u201cno barring action\u201d decision, then its decision to include him in the Barred Lists was beyond its powers (or \u2018ultra vires\u2019 in the language of public law). 21. This question is clearly a matter within the jurisdiction of the Upper Tribunal, which is to determine whether DBS has, in a decision either to include an individual on a Barred List or not to remove him from a Barred List, made a mistake on any point of law or in any finding of fact on which the decision was made (see section 4 of the 2006 Act). A decision made beyond the boundaries of its powers would plainly be in error of law. 22. While the 2006 Act makes express provision for DBS to review decisions to include persons in the Barred Lists and for a (limited) right of appeal in respect of a decision to include a person in (or not to remove a person from) a Barred List, there is no express provision for review of a decision not to include a person in a Barred List, or otherwise to reopen, revisit or reconsider a \u201cno barring action\u201d decision. Neither is there any right of appeal against a decision by DBS not to include a person in a Barred List. 23. The absence of such an express power is not necessarily fatal: \u201cThe absence \u2026 of an express power to do anything that is calculated to facilitate or is incidental or conducive to the carrying out of the [statutory body\u2019s] functions is not fatal \u2026 because in appropriate circumstances powers may be implied. However, whether such implication is possible will depend on the particular circumstances of each statutory scheme, in particular the express functions conferred on the statutory body\u201d (per Lord Lloyd-Jones in Commissioner of the Independent Commission of Investigations v Police Federation [2020] UKPC 11 at 15). 24. The statutory scheme requires DBS: (a) to maintain Barred Lists for the purposes of safeguarding children and vulnerable adults (section 2(1)(a) of the 2006 Act); (b) to consider any and all evidence it receives from whatever source if it is relevant to whether an individual should be included in the Barred Lists (paragraph 13 of Schedule 3 to the 2006 Act) (with no restriction as to when that can be received or considered); and (c) to include an individual on a Barred List if it is satisfied that they have been, or may in the future be, engaged in regulated activity and that it is appropriate to include them on such list (Schedule 3 to the 2006 Act). 25. The 2006 Act does not disapply these requirements in respect of an individual who has been considered for inclusion before, but in respect of whom inclusion was not then considered to be appropriate. Therefore, to take the clearest type of case, if DBS were to receive a new referral with previously unconsidered evidence in relation to alleged acts or omissions of an individual who had been referred to DBS previously in respect of those same allegations, DBS would be obliged to consider that referral. If DBS were then to determine that it was appropriate (and provided it was satisfied that the individual has been, or may in the future be, engaged in regulated activity) it would be obliged to place that individual in the relevant Barred List (or lists). The power to reopen a previously closed case in such circumstances (we use this terminology in preference to the word \u201creview\u201d so as to avoid confusing it with the express power of review provided for in the 2006 Act) is implicit in the statutory scheme because it must have been intended that DBS should have the power to comply with its statutory duty. 26. If there is no new referral, but further information is received by DBS in relation to an individual which gives rise to a concern that it might, after all, be appropriate to include that individual in either or both Barred Lists, this too would require DBS to consider the information and decide whether, in the light of that information, the individual should be placed in the Barred Lists. A power to reopen a closed case in such circumstances is, again, necessarily implicit in the 2006 Act to allow it to comply with its statutory duty. 27. But what of a case such as SV\u2019s, where no new referral or new evidence has been received giving rise to the duty under paragraph 13 of Schedule 3 to the 2006 Act (and, therefore, the implicit power to reopen the case), but rather DBS\u2019s own internal processes identify that the decision it made not to include in the Barred Lists may have been incorrect? 28. To determine this question, we must consider the legislative intent behind the statutory scheme as a whole. This was to create an expert body which would exercise the protective function of maintaining the Barred Lists with the purpose of reducing the risk of harm to children and vulnerable adults in a proportionate manner by preventing those who meet the relevant criteria from engaging in activities that could be expected to give rise to an unacceptable risk of harm to children or vulnerable adults in the context of regulated activity. 29. There is a very considerable public interest in DBS getting its decisions right, both in terms of including those who should be in the Barred Lists and, equally, in leaving out anyone who shouldn\u2019t be in the Barred Lists. The consequences of either type of error are potentially very grave indeed: on the one hand the risk of harm to a vulnerable adult or child may be realised if an individual who should be barred is permitted to continue engaging in regulated activity. On the other hand, if a person is included in the Barred Lists in error this will involve both a serious and wrongful infringement of that individual\u2019s human rights and the loss to society of someone who may play a valuable and much-needed role working or volunteering with children or vulnerable adults, or both. 30. Given the strength of this public interest, given that there is an implicit power to reopen \u201cno barring action\u201d decisions so that DBS may carry out its duty under paragraph 13 of Schedule 3 to the 2006 Act, and given that the 2006 Act contains no express or necessarily implied prohibition on DBS reopening \u201cno barring action\u201d cases, we are satisfied that DBS does have a general power to reopen such closed files for the purpose of maintaining the integrity of the Barred Lists, even if no new referral is made and no new evidence has been forthcoming. 31. The answer to question 1 a. in paragraph 10 above is therefore \u201cyes\u201d. Question 1 b: Was DBS entitled to exercise the power to reopen its \u201cno barring action\u201d decision in SV\u2019s case? 32. When a public body exercises its public law powers it must do so in accordance with public law principles. This is where the doctrine of \u2018legitimate expectation\u2019 becomes relevant. Whether DBS was entitled to exercise its power to reopen a \u201cno barring action\u201d decision requires consideration of the particular circumstances of SV\u2019s case and of whether he had a \u2018legitimate expectation\u2019 that he would not be placed on the Barred Lists absent further information coming to light. The doctrine of \u2018legitimate expectation\u2019 33. In R (on the application of Wood) v Secretary of State for Education [2011] EWHC 3256 (Admin) (\u201cWood\u201d), which was a judicial review of a decision of the Secretary of State for Education under the predecessor scheme to that under the 2006 Act to bar the claimant from working with children, Singh J (now Singh LJ) considered whether a decision to reopen a barring decision following a decision to take \u2018no further action\u2019 was contrary to the public law doctrine of \u2018legitimate expectation\u2019. 34. The facts of Wood, insofar as relevant to the principles set out by the Court, were: In 2000 Mr Wood, a teacher, accepted cautions in respect of two offences of common assault against two children at the school at which he was then teaching. In 2002 he was accused of sexually assaulting his partner\u2019s son, who was a pupil at the school at which he was then teaching. In relation to these allegations Mr Wood was charged with indecent assault on a boy under the age of 14 contrary to section 15 of the Sexual Offences Act 1956 and committed for trial. However, the trial was stayed in 2003 when the judge found that a fair trial was no longer possible due to passage of time since the alleged offence. 35. An investigation by the Education Department in relation to the allegations followed, but it was decided that no barring action would be taken against Mr Wood. On 15 April 2005 the Department for Education wrote to him, stating: \u201c\u2026 the Secretary of State has decided that she will not, on this occasion, take any further action under section 142 of the Education Act 2002, which empowers her to bar or restrict a person\u2019s employment as a teacher or worker with children and young persons on grounds of misconduct. Although the Secretary of State has decided that she will not take any further action, your details will remain on record and may be taken into account in the event of any further misconduct coming to the department\u2019s attention.\u201d 36. In 2006, in the context of growing concern that the system for safeguarding children in educational settings was insufficiently robust, the Secretary of State for Education initiated a \u2018Historical Cases Review\u2019 to review \u201chigh risk\u201d cases where there had been a decision not to place an individual on \u2018List 99\u2019 (the equivalent of the Children\u2019s Barred List under the current scheme). 37. On 19 December 2008 the Secretary of State decided to reconsider Mr Wood\u2019s case and on 6 October 2009 the Secretary of State directed that Mr Wood should be placed on List 99. 38. At that time such a decision brought a right of appeal the First-tier Tribunal (Health, Education and Social Care Chamber) which had a full merits jurisdiction. Mr Wood appealed, but his appeal was stayed pending resolution of a judicial review challenge which Mr Wood had made in the Administrative Court. The judicial review was heard by Singh J. 39. It was common ground between the parties to the judicial review proceedings that there had been no evidence or allegation of any misconduct between the 2005 decision not to take any further action to bar him and the 2009 decision to place him on List 99 following the \u2018Historical Cases Review.\u2019 40. Mr Wood\u2019s main argument was that the 2009 decision to place him on List 99 was so unfair as to amount to an abuse of power, and was therefore unlawful, because it breached the doctrine of substantive legitimate expectation. He also challenged the decision as breaching his Article 6 and Article 8 rights under the Human Rights Act 2008. 41. In \u00a7[37] to \u00a7[50] of his judgment in Wood Singh J provides a thorough review of the authorities and academic commentary on the principles applicable to legitimate expectation. He cites with approval Bingham LJ\u2019s statement in R v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd. [1990] 1 WLR 1545 at \u00a7[1569] of the proper test to be applied: to give rise to a legitimate expectation the statement must be \u201cclear, unambiguous and devoid of relevant qualification\u201d, a matter which Sir John Dyson JSC said in Privy Council in Paponette v Attorney General of Trinidad and Tobago [2011] 3 WLR 219 at \u00a7[30] depends on \u201chow on a fair reading of the promise it would have been reasonably understood by those to whom it was made\u201d. At \u00a7[48] of Wood Singh J cites Sir John Dyson JSC\u2019s statement in that case (at \u00a7[37]) of the shifting burden of proof in establishing matters relevant to legitimate expectation: \u201cwhile the initial burden lies on an applicant to prove the legitimacy of his expectation, in particular that it was clear, unambiguous and devoid of relevant qualification, and that in order to support the legitimacy of that expectation he may be able to show that he relied on the promise to his detriment, once those elements have been proved by the applicant the onus shifts to the public authority concerned to justify the frustration of the legitimate expectation.\u201d 42. Whether this test is satisfied is a matter for the court to decide, and the court is not confined to a review on the ground of irrationality only (see Wood at \u00a7[40]). 43. Applying the law to Mr Wood\u2019s case Singh J accepted that the 15 April 2005 letter to Mr Wood (quoted at \u00a7[31] above) contained a representation that: a. was \u201cclear, unambiguous and devoid of relevant qualification\u201d; b. which would reasonably have been understood by Mr Wood to mean that \u201che would not have further action taken against him unless further misconduct came to the department\u2019s attention\u201d, and c. that this established a legitimate expectation that this would be the case (\u00a7[51]). We refer to this issue as the \u201cstage 1 question\u201d on legitimate expectation. 44. Singh J went on to consider whether the Secretary of State had acted lawfully when acting in a way which was inconsistent with Mr Wood\u2019s substantive legitimate expectation. This required him to be satisfied of two matters (see Woodat \u00a7[51]), which we will call the \u201cstage 2 questions\u201d on legitimate expectation: a. First, that there was a legitimate aim in the public interest in doing so; and b. Second, that to do so was proportionate. 45. As to the first matter, he found that the \u201cpublic interest in protecting children, in particular in protecting them from the risk of sexual abuse, is manifest and pressing\u201d and was clearly a legitimate aim. 46. As to the second matter, Singh J drew a distinction (at \u00a7[55]) between the decision to reconsider Mr Wood\u2019s case on the one hand (which we\u2019ll call a \u201creopening decision\u201d), and the decision to include him in List 99 on the other (which we\u2019ll call a \u201cbarring decision\u201d). Important reasons for drawing that distinction were: a. the existence of appeal rights in relation to the barring decision (but not the reopening decision) (\u00a7[56]), b. the fact that such an appeal was to an independent judicial body (\u00a7[56]), and c. the fact that the appeal rights permitted a challenge to the barring decision on its merits (\u00a7[56]). 47. Singh J said these factors militated in favour of the appeal before the tribunal being the better forum for challenging the barring decision, and the Administrative Court should be \u201cslow to stop a case being considered on its merits\u201d by the tribunal (see Woodat \u00a7[65]), not least because otherwise \u201cthere is a real risk that the case may be one where, although the reasoning process which led to the decision to bar an individual may be criticised in some way, the Tribunal would have upheld the barring order on its merits. If that were to be the case, the public interest would be undermined.\u201d (\u00a7[65]). 48. Factors relevant to the proportionality assessment of the reopening decision included: a. the fact that the Secretary of State sought to devise fair procedures to be followed before making a barring order (including the right to make representations, the involvement of an expert panel with independent members, and the opportunity for face to face assessments) (\u00a7[57]); and b. the fact that the Secretary of State only reconsidered cases where it was thought that a person might pose a current risk, and not all old cases (\u00a7[56]). 49. Singh J said (at \u00a7[66]) that not every reopening decision would always be proportionate: this would depend on the facts of each case, and there may be cases in which the individual concerned should not have to go through the trouble and anxiety of an appeal. However, he was satisfied that in Mr Wood\u2019s case the impact on him, including mental stress, was insufficient to outweigh the \u201coverriding public interest\u201d which justified the decision to reopen his case, and that it was therefore proportionate (\u00a7[67]). 50. The High Court is a court of co-ordinate jurisdiction to the Upper Tribunal, and therefore Wood is not, as a matter of precedent, binding on the Upper Tribunal. It might also be distinguished from this case on two grounds: a. it was made in the context of a judicial review rather than an appeal; b. the appeal rights, the existence of which appeared to be so persuasive to Singh J, differed materially from the appeal rights under the 2006 Act because the appeal to the First-tier Tribunal under the regime which Singh J considered inWood was for a full merits review, while the right of appeal under the 2006 Act can best be described as a hybrid appeal right, allowing some consideration of the merits but only once the hurdle of establishing that the decision under appeal involved a mistake on any point of law or in any finding of fact on which it was based, and on the basis that the question of whether or not it is appropriate for an individual to be included in a barred list is not to be considered a question of law or fact (section 4(3) of the 2006 Act). 51. However, we agree with the principles set out by Singh J and we have decided to follow them, albeit that we come to a different conclusion on the stage 1 question on legitimate expectation (see \u00a7[59] below). 52. The reopening of barring cases by DBSwas considered by the Upper Tribunal for the first time recently in JT v Disclosure and Barring Service [2022] UKUT 29 (AAC) (\u201cJT v DBS\u201d). This was an appeal against a decision of DBS to place a domiciliary home care support worker on the Adults\u2019 Barred List notwithstanding that she had previously been told that she would not be included on any barred list. 53. In JT v DBSthe Upper Tribunal used the term \u201crevisiting\u201d instead of \u201creopening\u201d, but in doing so it referred to the same thing. It explained the extent of the relevance in the appeal before it of the question whether DBS had been entitled to \u201crevisit\u201d (or reopen) its previous \u201cno barring action\u201d decision: \u201c18. We need to make clear how and why it is relevant on appeal to establish that DBS was entitled to revisit its initial view that JT should not be included in a barred list. If it was not entitled to do so, that would be a mistake of law for the purposes of section 4(2)(a) SVGA, as Mr Wilkinson conceded. That is the limit to its relevance. The proportionality exercise involved in revisiting the barring issue is entirely separate from the proportionality exercise undertaken by DBS as part of the appropriateness to bar assessment. In other words, the question whether DBS was entitled to revisit JT\u2019s case was a threshold one. Once the threshold was crossed, the normal rules under SVGA applied.\u201d 54. The same applies to this appeal. 55. The Upper Tribunal considered whether the appellant had shown that, on a fair reading of DBS\u2019s original letter telling her that she would not be included in any barred list, she would reasonably have understood it to contain a clear, unambiguous and unqualified representation that she would not be included in a list in the absence of further evidence, and it bore in mind what Singh J had said in Wood: \u201c20. If it had not been for Wood, we would have decided that, on an objective view, anyone who received the letter sent in this case should not have taken it as a promise that DBS would not revisit her case unless it received further information. The letter should be read as dealing with two separate issues. First, it reported that JT was not to be included in a list. That involved no commitment. Nowadays it is reasonable to expect decisions to be subject to some form of quality control, leaving DBS free to look at the case again. Second, the letter stated the fact that the information held would be retained and used again if further information came to light. This was a separate matter, dealing with the possibility that further information might become available, and only with that possibility. It was not limiting its use of the retained information to that possibility. 21. We need to be cautious about this. The language of the letter in Wood was similar to the letter sent to JT. We are not bound as a matter of law by Singh J\u2019s analysis, but it deserves respect. Allowing for the possibility that we might be wrong, we go on to consider whether DBS was entitled to revisit the barring issue.\u201d The wording of the \u201cno barring action\u201d letter in this case 56. DBS\u2019s \u201cno barring action\u201d letter to SV (which is at pages 11-12 of the appeal bundle) read, so far as relevant: \u201cWhy we are writing to you We wrote to you on 11\/10\/2018 and explained that we were considering including you in the Children\u2019s Barred List and \/or the Adults\u2019 Barred List. It appears on the information currently available to the DBS that you are, have been or might in the future work in regulated activity relating to children\/vulnerable adults. The definition of Regulated Activity is found within schedule 4 of Safeguarding Vulnerable Groups Act 2006 and your previous role as a Care Assistant appears to satisfy this criteria (sic). However, having considered the full circumstances we have decided that it is not appropriate to include you in the Children\u2019s Barred List or the Adults\u2019 Barred List. \u2026 Sharing this information We will keep any relevant information we hold in accordance with our Data Retention Policy. We may take it into account if we receive any further information in the future.\u201d The stage 1 question on legitimate expectation: did SV have a legitimate expectation that he would not be added to any barred list in the absence of further evidence? 57. The last two paragraphs reproduced above are nearly identical to the equivalent paragraphs of the letter DBS sent to the appellant in JT v DBSand discussed in \u00a7[55] above, and therefore also similar to those in the Secretary of State\u2019s letter to the claimant inWood. 58. We share the doubt expressed by the Upper Tribunal in JT v DBS as to whether this wording passes the test (set out in \u00a7[41] above) for establishing a legitimate expectation. 59. On balance, and for the same reasons given by the Upper Tribunal at \u00a7[20] of JT v DBS, we are not persuaded that it does, so we answer \u201cno\u201d to this question. However, like the panel that decided JT v DBS, we nonetheless consider it prudent to analyse the \u201cstage 2\u201d legitimate expectation issues identified by Singh J in Wood, in case we are wrong on this point. The first stage 2 question on legitimate expectation: did DBS have a legitimate aim in the public interest in revisiting the \u201cno barring action\u201d decision? 60. As discussed above in \u00a7[29], we are satisfied that there is a strong public interest in the Barring Lists including those they should include and excluding those they should not and that DBS has the power under the statutory scheme to revisit \u201cno barring action\u201d decisions. In Wood the legitimate interest identified by Singh J was the protection of children from sexual abuse by teachers. Clearly that public interest is not applicable in this case, but that is only one example of a legitimate public interest. We are satisfied that the protection of vulnerable adults from neglect by those entrusted with their care is equally to be considered a legitimate aim in the public interest, and that applied in this case. 61. We therefore answer the first stage 2 question on legitimate expectation \u201cyes\u201d. The second stage 2 question on legitimate expectation: was the decision to reopen the \u201cno barring action\u201d decision proportionate? 62. In JT v DBS the Upper Tribunal considered the factors that influenced Singh J in concluding that the decision to revisit Mr Wood\u2019s case was proportionate, and could identify no differences between the appeal in Wood and that before them that justify a different conclusion on proportionality: \u201c26. First, Singh J was influenced by the existence of an appeal. We need to compare the appeal that was made in Wood and the appeal in this case. In Wood, the appeal lay under section 144(1) of the Education Act 2002, which provided for an appeal against a decision to give a direction. That was what might be called a full merits appeal; indeed Singh J referred to the appeal considering the case on its merits ([65]). In this case, in contrast, the grounds of appeal are limited to those in section 4(2), subject to the qualification in section 4(3). Our jurisdiction is more limited than the appeal under section 144(1). 27. Despite our more limited jurisdiction, we can see no difference in principle to distinguish the two appeals. Section 4(3) makes clear the limit to our jurisdiction inherent in section 4(2). Even within the scope of mistake of law, this tribunal is not entitled to undertake its own fresh consideration of the appropriateness of including someone on a list: B v Independent Safeguarding Authority [2013] 1 WLR 308 at [19]. In contrast, the tribunal that heard Mr Wood\u2019s appeal was entitled to reconsider all issues. That is a clear difference in jurisdiction, but it is important to understand how the different forms of jurisdiction work in practice. Even if this tribunal had a full merits jurisdiction, it would be expected to show appropriate respect for the DBS\u2019s judgment, for the reasons explained in a different context by the Supreme Court in R (Begum) v Special Immigration Appeals Commission [2021] AC 765 at \u00a7[70]. That reduces considerably the significance in practical terms of the difference in jurisdiction. 28. Second, the judge was influenced by the right to make representations. JT had that right when her case was revisited by the DBS. Before the Upper Tribunal, she had the right to present grounds of appeal before giving evidence and making representations at the hearing. That is equivalent to the position in Wood. 29. Finally, the judge was influenced by the access to expertise. DBS has its specialist decision-making. The Upper Tribunal has its specialist members, whose qualifications for the role were set out in CM v Disclosure and Barring Service [2015] UKUT 707 (AAC) at \u00a7[59] to \u00a7[64]. Again, we find no significant difference between this case and Wood.\u201d 63. These observations apply equally to this appeal. We therefore examined the applicability of the factors identified by Judge LJ in R (M) v London Borough of Barnet [2002] 2 FLR 802 at \u00a7[42] to \u00a745], (cited with approval by Singh J in Wood). We found that DBS\u2019s decision to reopen SV\u2019s case was not motivated by spite or malice and did not involve bad faith and, while we have some concerns about the rigour and fairness of DBS\u2019s processes leading to the barring decision on SV\u2019s case, it can\u2019t properly be said that there was \u201cnot a scintilla of evidence\u201d to support the case for his inclusion on the Adults\u2019 Barred List. 64. We also considered the list of factors suggested by the Upper Tribunal as potentially relevant to the issue of proportionality in JT v DBS at \u00a7[30]: \u201c(a) the passage of time may mean that evidence or witnesses are no longer available; (b) the person concerned may have relied on the expectation to such an extent or for so long that it would be wrong to allow the DBS to revisit the case; or (c) the procedure followed by DBS in deciding to revisit may be so flawed or unfair or prejudicial that the decision to revisit would be quashed on judicial review.\u201d 65. We acknowledge that none of the lists of factors set out in Wood, R(M) v London Borough of Barnet andJT v DBSis exhaustive, but we couldn\u2019t identify any other reason to suggest that the decision to revisit SV\u2019s case was disproportionate. 66. We therefore answer the second stage 2 question on legitimate expectation \u201cyes\u201d. 67. Having concluded that DBS had a legitimate aim in the public interest in revisiting the \u201cno barring action\u201d decision, and having concluded that it was proportionate to do so, we have cleared the threshold identified in \u00a7[53] above, which means that we move on to consider the Barring Decision, and whether DBS made a mistake on any point of law or in any finding of fact on which the Barring Decision was based in accordance with the usual rules under the 2006 Act (i.e. question 2 identified in \u00a7[10] above). Question 2: did DBS make a mistake on a point of law or a finding of fact on which the Barring Decision was made? 68. DBS explained its decision in its Final Decision Letter dated 24 January 2020, in which it sets out its findings of fact (see page 22 of the appeal bundle): \u201cOn 21 August 2018, between approximately 12:45am and 6am, you neglected an unknown number of residents in the New Wing at Resthaven Nursing Home, when you were working as a Care Assistant by: \u2022 Going into the Poppy Room at approximately 12:45am, where no residents were present, sitting in a chair and not coming out until 6am. \u2022 Failing to ensure all the required health and safety checks were completed for residents during this time period. \u2022 Unplugging the call bell of JY, a 93 year old female resident, who does not have full capacity, so that she was unable to call for assistance as required. This resulted in JY not receiving the personal care she required during this time period, as her call bell was unplugged and no staff member carried out any care or safety checks on her. JY was found at approximately 7am on 21 August 2018 by day staff, where she was lying on a mattress without bed linen, in a pool of urine, with soaked incontinence pads, her nightdress saturated in urine, and she was cold.\u201d 69. Given the limited jurisdiction of the Upper Tribunal under the 2006 Act, we need to consider not whether we would have made the same findings ourselves if conducting a full merits review, but rather whether DBS was entitled to make those findings on the evidence before it, or whether its decision was based on a mistake of fact or a mistake on a point of law. 70. We will examine in turn the sub-findings on which DBS\u2019s overall finding of neglect was based, the evidence on which those findings were made, and DBS\u2019s explanations of its decision making (in the \u2018Barring Decision Process\u2019 document, in the Final Decision letter, and in the submissions made by Mr Serr in the appeal). Finding 1: Going into the Poppy Room at approximately 12:45am, where no residents were present, sitting in a chair and not coming out until 6am. 71. The evidence on which this finding was based is set out in the section of the \u2018Barring Decision Process\u2019 document headed \u2018Establish Relevant Conduct or Risk of Harm and Regulated Activity\u2019 (see pages 65-72 of the appeal bundle): \u201cMs Jo Goode (Ms Goode) Home Manager and Investigating Officer has provided a clear and detailed description of the CCTV footage that was captured between midnight and 7am on 21 August 2018. Whilst the DBS has not been provided a copy of this CCTV footage to review as it is no longer available, there is no reason to doubt the credibility of the statement that has been provided by Ms Goode. This description is clear that at 12:35am SV and Ms K are on the New Wing making checks along the corridor, SV then goes to the top corridor and into the Poppy Room and not (sic) seen again until 6:00am when he walks down to the conservatory\u201d 72. What DBS describes as Ms Goode\u2019s \u201cclear and detailed description\u201d of the CCTV footage is at page 38 of the appeal bundle. The account is in note form and we reproduce it as it is written: \u201cFollow the allegation of neglect of a resident on the night of the 20th August 2018. Myself and Suzanne Booker watch the CCTV from 12 midnight to 07.30am on the morning of 21st august 2018. The member of staff on the old wing was relatively busy throughout the night making regular checks on the Residents. At 00.35 the two care staff on the new wing made checks along the corridors, the TK returned to the Conservatory and SV went to the top corridor and went to poppy room. SV was not seen again until 6.00 when he walked along the corridor and then went downstairs to the Conservatory. TK was seen at 02.40 after a Resident who had been walking the corridors for 30 minutes goes into the conservatory and appears to wake TK, she then takes the resident back to her room. She then returns to the Conservatory and doesn\u2019t reappear until SV goes into the conservatory at 6.05. RR is seen at 00.30 making room checks and helping the Carer on old wing provide care to a Resident. She then returns to the Nurses station a few minutes later she is seen taking the armchair from the corridor and putting it to the office then turns out the lights. RR is seen again at 02.30 when she hears a Resident walking in the corridor, she looks to see who it is then returns to the office. She is not seen again until 05.45 when she pulls the armchair out of the office and returns it to the corridor. She then checks three rooms, and returns to the office and a few minutes later reappears and start undertaking normal morning duties for RGN. Therefore, no Resident checks were undertaken in the new wing from any staff from 00.45 \u2013 06.00.\u201d 73. DBS also had a transcript of SV\u2019s disciplinary hearing of 30 August 2018. It is clear from that transcript that while SV accepted that he went to the Poppy Room and sat in a chair, and that there were no residents to care for in the Poppy Room, he did not accept that he did not check on residents between 12:45am and 6am. References to \u201cHBJ\u201d are to the employer\u2019s Disciplinary Manager and \u201cSV\u201d are to SV: \u201cHBJ:You were in the room from 12:35pm (sic) \u2013 6am SV:I\u2019m sure I checked residents in between HBJ:You didn\u2019t on CCTV no images of anyone moving other than a moth and a cat, why were you in there that long? SV:I feel like I did go out and do checks, I have no answer for that HBJ:No explanation? (HBJ read appendix 9 again paragraphs 2, 3, 4 and 5, how could you of (sic) checked in there are no images on the CCTV showing this? SV:I was sitting there waiting for the bell. HBJ:Is that what you normally do? SV:Yes HBJ:Why were you not seen between 12:35pm (sic) \u2013 6am? SV:I want to see the video\u201d 74. DBS was, or course, entitled to consider the evidence provided to it by Lillian Faithful Care, including the disciplinary file. However, it was required to make its own assessment of the evidence. It had to assess each piece of evidence before it critically and to decide what weight to give it. Where there was a conflict of evidence it had to decide what was most likely in the light of all the evidence and resolve the conflict accordingly. It was not entitled simply to adopt the referring employer\u2019s assessment of the evidence, findings or conclusions uncritically. That would be to abdicate its statutory function. 75. DBS explained its assessment of the CCTV evidence in its Final Decision Letter relating to the Barring Decision as follows (see page 22 of the appeal bundle): \u201cWithin your representations, you have alleged that the description of the CCTV footage is not reliable, that the investigation was a \u201cfarce\u201d, and that the internal politics and contract negotiations that were ongoing at the time had a direct effect on your dismissal. However, you have presented no evidence to corroborate the alleged politics and issues within your organisation and during the investigation and disciplinary process you admitted to being sat on a chair in Poppy Room during this time period, as detailed within the CCTV footage description provided by Ms Goode. You were further unable to explain during the employer\u2019s investigation how you were able to remain in the Poppy room where no residents were present, if the shift had been as busy as you had indicated. Therefore, the DBS has no evidence to suggest that the CCTV footage description is not accurate or to question the credibility of the investigation as a whole.\u201d 76. In the \u2018Barring Decision Process\u2019 document DBS acknowledges that it has not viewed the CCTV footage but says there was \u201cno reason to doubt the credibility of the statement that has been provided by Ms Goode\u201d (page 65 of the appeal bundle) and finds that, \u201cgiven the credible account of the CCTV footage and the inconsistent accounts provided by SV and Ms K, it appears on the balance of probabilities that on 21 August 2018 between approximately 12:45 and 6:00am SV did not carry out any care or safety checks on the residents of Resthaven Nursing Home. 77. While DBS was entitled to find Ms Goode\u2019s evidence to be \u201ccredible\u201d as far as it went, it was wrong to characterise her description of the CCTV evidence as \u201cclear and detailed\u201d. This is because it did not explain what CCTV evidence was reviewed, or what methodology was used. Where were the cameras situated? What area did they show? Were there any \u201cblind spots\u201d? How many feeds were reviewed? Were the feeds watched concurrently or consecutively? At what speed was the footage played? What was the quality of the images? Did Ms Goode watch all the feeds herself, or did she and Ms Booker each review one or more feeds alone and tell each other what they showed? Did they take regular breaks or watch the entire five and a quarter hours in relation to each camera feed in one go? Where did they view the footage (in a quiet office or e.g. at a nurses station? Were they uninterrupted while they performed this task? Did they carry out other duties while they reviewed the footage? 78. Another reason DBS gave for assessing Ms Goode\u2019s account of the CCTV evidence as reliable is set out at page 68 of its Barring Decision Process document: \u201cAlso, Mrs R has not disputed the content of the CCTV footage in her case, which indicates that there are no obvious concerns with the statement provided by Ms Goode regarding the description of the CCTV footage of the night in question.\u201d 79. This was not a permissible inference for DBS to draw because Mrs R was working on the Old Wing that night, while SV and Ms K were working on the New Wing. Since she wasn\u2019t on the New Wing that night she couldn\u2019t have known, without viewing the footage herself, whether Ms Goode\u2019s description of the footage of the New Wing was accurate. We were pointed to no evidence that indicated that Mrs R viewed the CCTV footage of the New Wing. As such DBS was wrong to consider that her failure to challenge this evidence tended to demonstrate its reliability. 80. SV was aware there were cameras on the ward and he was informed of the existence of CCTV footage, and what it was said to show, yet he maintained his position that he did check on residents during the time in question and he asked to see the CCTV. In his representations he questioned the reliability of the description of the CCTV footage and alleged that political issues may have influenced the investigation. 81. One of the reasons DBS gave for dismissing this allegation was that SV had \u201cpresented no evidence to corroborate the alleged politics and issues within your organisation\u201d. Given that SV was dismissed from his job on 30 August 2018, had not appealed that dismissal or commenced proceedings in relation to it, and had been informed on 17 January 2019 that DBS would take \u201cno barring action\u201d SV cannot reasonably have been expected to retain, or have had access to, any evidence of political tensions in his former workplace, so DBS was wrong to find that this lack of corroboration undermined his evidence. 82. Given the clear dispute about this piece of evidence that was so crucial to DBS\u2019s findings of neglect, DBS took a remarkably uncritical approach to it. It may well be that DBS did not think it practicable to obtain further evidence from Ms Goode or Ms Booker to shed further light on these matters. However, if that were the case DBS should at the very least have acknowledged the deficiencies in Ms Goode\u2019s account, and it should have taken those deficiencies into account when assessing what weight to give her evidence. They did this neither in the Final Decision Letter, nor in the \u2018Barring Decision Process\u2019 document, nor in its submissions before the Upper Tribunal. 83. We are satisfied that DBS failed to approach the evidence of what the CCTV footage supposedly showed, and on which it based finding 1, in a duly critical way, and this amounted a mistake on a point of law. Finding 2: Failing to ensure all the required health and safety checks were completed for residents during this time period 84. This finding was founded on DBS\u2019s acceptance that Ms Goode\u2019s note amounted to a \u201cclear and detailed description\u201d of the CCTV footage, so the same points raised above in relation to Finding 1 apply. 85. The only other reason given for this finding was that SV had \u201cadmitted to being sat on a chair in the Poppy Room during this time period, as detailed within the CCTV footage description provided by Ms Goode\u201d (see page 22 of the appeal bundle). This reasoning is flawed because, while SV did accept that he sat on a chair in the Poppy Room, he did not accept that he was there for the entire period as Ms Goode claims. His case was that he sat in the Poppy Room listening for the call bells but performed checks during the shift, and he challenged the evidence as to what the CCTV footage showed quite vigorously. 86. Given the flaws in its approach to Ms Goode\u2019s evidence about the CCTV footage, and given that one reason for its making this finding was based on SV having accepted something which he clearly disputed both at the time of his disciplinary hearing and consistently in his representations to DBS, we are satisfied that DBS\u2019s decision making in this respect involved a mistake on a point of law. Finding 3: Unplugging the call bell of JY, a 93-year-old female resident, who does not have full capacity, so that she was unable to call for assistance as required 87. Finding 3 does not rely on Ms Goode\u2019s evidence of what the deleted CCTV footage showed. Rather, it relies on the statements made by Ms K (the agency carer working with SV in the New Wing on the relevant night, see page 44 of the appeal bundle), Ms Merrick and Ms Patrick (the two day staff who attended to JY when they came on shift in the morning, see pages 39-40 and page 41 of the appeal bundle, respectively), as well as the notes of the investigation interviews with Ms R (the Registered Nurse working the relevant shift, see pages 49-54 of the appeal bundle) and the notes of SV\u2019s own investigation interview (see pages 55-58 of the appeal bundle). 88. The statements made by Ms Merrick and Ms Patrick are shocking and emotive. They describe the distressing state in which they discovered JY. DBS found their evidence to be compelling, and it explained why. DBS was entitled to accept their evidence as it did. Indeed, their evidence was not contradicted to any significant extent by SV or the other witnesses. It hardly needs saying that DBS was also entitled, based on this evidence, to find that JY, a vulnerable adult, had suffered neglect which had caused her harm. However, the statements of Ms Merrick and Ms Patrick are relevant to the Barring Decision in respect of SV only if he was responsible, whether wholly or partly, for that neglect. 89. Ms Patrick\u2019s statement casts no light on this whatsoever and it makes no reference either to SV or to the call bell. Ms Merrick\u2019s statement does appear to refer to SV: \u201ca gentleman member of staff came into [JY]\u2019s room I informed him of how I had found [JY] and he replied \u201cpoor [J]\u201d and proceeded to plug in [JY]\u2019s call bell and then left the room\u201d. 90. DBS refers to this part of the statement in its analysis in its \u2018Barring Decision Process\u2019 document of the evidence relating to the call bell. However, DBS puts its own gloss on Ms Merrick\u2019s account: \u201cMs Merrick has provided the account that SV went straight to the call bell and plugged it back in when he entered the room\u201d (see page 66 of the appeal bundle). 91. DBS\u2019s assessment of the evidence of SV plugging in the call bell is flawed in several ways. 92. First, SV\u2019s evidence on whether he plugged the bell in is not inconsistent: he never denied plugging it in, he only denied unplugging it. There is some inconsistency in SV\u2019s evidence as to when he noticed that the call bell was not plugged in, but this doesn\u2019t seem particularly sinister. DBS appears to rely on Ms Merrick\u2019s evidence that he went \u201cstraight to the call bell\u201d to plug it in to draw an inference that he already knew it was unplugged, and a secondary inference that he knew this because he had unplugged it. However, the statement made by the witness did not say what DBS says she said: there is no mention of him going \u201cstraight to the call bell\u201d, so any inferences drawn from this supposed evidence are invalid. In any event, the inferences drawn are by no means necessary ones and may be considered unlikely. We find that on a proper analysis the statements of Ms Merrick and Ms Patrick are incapable of supporting a finding that SV unplugged the call bell. 93. So, what of DBS\u2019s assessment of the evidence of SV unplugging the call bell? DBS relied upon Ms K\u2019s statement (at page 44 of the appeal bundle) that: \u201cthe other carer who was working with me had removed the bed alarm as [JY] was pulling it towards her face and neck \u2026 \u201c 94. This statement does tend to support a finding that it was SV who removed the call bell (albeit that he is not named), but the witness in question is the carer who spent the night working on the ground floor of the New Wing where [JY] was located, while SV was working on the first floor from about 12:45am and so she may be regarded as a witness who is not entirely impartial. Further, Ms K gave evidence that she had checked on JY several times in the night, while DBS made a clear finding that \u201cthis did not take place\u201d, bringing the reliability of her evidence into question. Of course, witnesses can lie for any number of reasons, and they may lie about one matter but be truthful about another, or they can be truthful but mistaken. Just because DBS didn\u2019t accept Ms K\u2019s evidence that she had checked on JY several times during the night doesn\u2019t meant that it couldn\u2019t accept her evidence that it was \u201cthe other carer who was working with me\u201d who unplugged the call bell, but given the circumstances outlined above DBS should have treated her evidence with some caution. However, DBS doesn\u2019t appear to have assessed this piece of evidence critically or in a balanced way. 95. Turning to the supposed inconsistencies in SV\u2019s accounts relating to the unplugging of the call bell, SV addressed the unplugged call bell on three occasions. 96. In his statement made on 21 August 2018 (at page 86 of the appeal bundle) he mentions \u201cbell was near to her on the foot table\u201d but he doesn\u2019t say how it got there. 97. In his investigation interview with Jo Goode (referred to in the notes of interview as JG) on 23 August 2018 (at page 89 of the appeal bundle) there was an exchange about the call bell in these terms: \u201cJG:Please can you explain the reasoning for the call bell being taken off, the jack taken out and the bed being unplugged? SV:I didn\u2019t see that the bed had been unplugged. At times JY unplugs it themselves (sic). JG:Why didn\u2019t you take the call bell off the wall and place it on the table, if you know they may play with it? SV:I put the jack back onto the call bell as I noticed it had been unplugged.\u201d 98. Here SV was asked to \u201cexplain the reasoning\u201d for the call bell being unplugged. He obliges by providing a possible explanation of what might have happened, based on his knowledge and experience (\u201cAt times JY unplugs it themselves\u201d). He is not saying that he removed the call bell, or that he knows what happened. 99. In his disciplinary interview with Haden Bodin-Jones (referred to as \u201cHBJ\u201d) on 30 August 2018 he was again asked about the call bell (see page 56 of the appeal bundle): \u201cSV:When JY sits on her chair the call bell won\u2019t reach to her chair, we will give the call bell to her so she can reach, the bell was on the table, if she wanted she could ring, Sometimes the cable wraps round her neck, that\u2019s maybe why staff unplugged it, there\u2019s only 1 bell in this room. HBJ:Can you explain why during the investigation process you state, you did not notice the call bell was unplugged, however you then state you plugged the call bell back in? For clarity can you please confirm which of these statements is correct? SV:When I went there at 7am I saw the plug on the table, I thought it would be better to keep it on the floor, I\u2019m not sure who put it there. HBJ:Did you notice it was unplugged or not? SV:The jack was removed but the bell would still ring, the cable wouldn\u2019t reach her maybe that\u2019s why it was removed it was kept on the side table, when I walked in that\u2019s where it was, I then plugged it back into the wall.\u201d 100. Again, SV is offering a possible rationalisation for the call bell being on the table. He is not saying that he unplugged it and put it on the table because he thought that it might wrap around her neck. He consistently attributes the unplugging to an unknown other: \u201cthat\u2019s maybe why staff unplugged it\u201d; \u201cmaybe that\u2019s why it was removed\u201d. 101. DBS\u2019s evaluation of the evidence on the call bell is summarised in its Barring Decision Process document (at page 69 of the appeal bundle) as follows: \u201cGiven that SV has been inconsistent in his account, that he has provided a reason for it being unplugged that is not supported by the appropriate risk assessment, that Ms K alleged that SV unplugged the call bell, and that Ms Merrick witnessed SV go straight to the call bell and plug it back in the next morning, it appears to the DBS on the balance of probabilities that SV unplugged [JY]\u2019s call bell.\u201d 102. SV gave different explanations for the unplugging of the call bell, but it is wrong to say he gave inconsistent accounts, so DBS was wrong to rely on any inconsistency in SV\u2019s evidence. If SV did unplug the call bell then the fact that he didn\u2019t record a risk assessment is another factor that could have been considered in DBS\u2019s assessment of appropriateness and risk, but the lack of recorded risk assessment is not evidence that SV unplugged the call bell, and it was wrong of DBS to rely on it as such. We have explained why its belief that SV went \u201cstraight to the call bell\u201d was erroneous and incapable of supporting a finding that SV unplugged the call bell. For these reasons we are persuaded that DBS\u2019s finding that SV unplugged JY\u2019s call bell is not supported by the evidence it relied upon and its reasons for making that finding are flawed and in error of law. 103. In his skeleton argument and in his oral submissions at the hearing Mr Serr advanced another basis on which SV could be found to have neglected JY: Mr Serr argued that SV was responsible for the provision of care on the New Wing not only by him but also by Ms K, the agency carer, who was working on the ground floor where JY\u2019s bed was. This was on the basis that SV was the only permanent member of staff working on the New Wing that night, Ms K being agency staff, and SV being an experienced care worker with many years under his belt. 104. If DBS made its decision on this basis it is far from clear either from its Final Decision Letter or from its Barring Decision Process document. We note that in the referral form with which DBS was provided (see pages 29-35 of the appeal bundle) SV\u2019s role title is listed as \u201cCare Assistant\u201d and his duties are described as being \u201cTo support the home manager and management team in all aspects of the care of residents. To work in partnership with residents encouraging choice participation and motivation adhering at all times to the values of the charity. Ensure that all policies &amp; procedures are adhered to.\u201d There is no mention of management or supervisory duties. SV accepted at the hearing that he gave Ms K a briefing at the beginning of the shift, but this doesn\u2019t mean that he was operating in a supervisory capacity. 105. While Mr Kerr suggested that Ms K was inexperienced there was no evidence to support this assumption, which appeared to have been made solely on the basis that she was agency staff, when it is common for people with a great deal of experience to choose to work as agency staff for reasons of flexibility and better pay. Ms K was clearly new to the care home and needed to be \u2018shown the ropes\u2019 by SV, but for all we know she may have had more experience than SV. In the absence of any supervisory or management role, and if SV did not unplug the call bell, there is insufficient evidence to support a finding that SV was responsible for JY\u2019s care while he was assigned to the top floor and Ms K to the ground floor, unless and until he was called to assist. 106. We find that DBS took a flawed approach to its assessment of the evidence of what the CCTV footage showed and to its assessment of the evidence relating to the unplugging of JY\u2019s call bell. These amount to errors of law. We find that there was insufficient evidence before the DBS to support a finding that SV had supervisory duties in respect of Ms K. In any event DBS did not rely on the existence of such a duty either in its Minded to Bar letter, its Barring Process Decision document or its Final Decision Letter. Given that the key findings made by DBS were infected by errors of law it is by no means clear that DBS would have arrived at the same decision to bar SV had those mistakes not been made. It was entitled to find that SV failed to report the unplugged call bell, but such a failing would have been unlikely of itself to result in DBS deciding to place SV on the Barred Lists. 107. At the permission stage the judge explained his reasons for granting permission to appeal to the Upper Tribunal: \u201c9. Having conducted a thorough review of the papers I have significant concerns about the fairness of the process conducted by the Respondent in this case. It appears that the Respondent may have been overly reliant on the referee\u2019s investigation and have failed adequately to assess the evidence for itself.\u201d 108. The concerns described by the judge are shared by this panel. We consider that DBS\u2019s investigation was lacking in rigour and its approach to the evidence showed a remarkable lack of curiosity. DBS failed to carry out an adequate assessment of the evidence for itself, relying far too readily not only on the evidence provided by the referee (which was permissible) but also on the referee\u2019s assessment of the evidence and its findings (which was not permissible). It also failed to ensure fairness in the process, including failing to provide SV with a full copy of the referee employer\u2019s disciplinary file, so denying him the opportunity to make representations on them. Mr Kerr argued that this failure was not in error of law because it could be presumed that SV had the statements as part of the disciplinary pack sent to him in advance of his disciplinary hearing, but this completely fails to acknowledge that SV had been dismissed from his job and had, almost a year before the Barring Decision was made, been given a \u201cno barring action\u201d letter. In these circumstances, an assumption that SV would have retained all the papers from his disciplinary hearing is completely unrealistic. 109. For the reasons given above we are satisfied on the balance of probabilities that DBS has in its Barring Decision made mistakes on points of law which are material. Disposal 110. Having decided that DBS has made such mistakes Section 4(6) of the 2006 Act requires us either to direct DBS to remove SV from the Barred Lists or to remit the matter to DBS for a new decision. 111. In DBS v AB[2021] EWCA Civ 1575 (\u201cDBS v AB\u201d)at \u00a7[73] the Court of Appeal said that the Upper Tribunal\u2019s power to direct removal from the barred list should be used sparingly and on an error being identified the usual order will be remission back. Section 4(6) of the Act permits the Upper Tribunal to direct removal of the name of a person from a barred list where that is the only decision that the DBS could lawfully reach in the light of the law and the facts found by the Upper Tribunal. While this is a case in which DBS has made serious errors of law it is not a case in which the only decision DBS could lawfully reach is removal from the Barred Lists. We therefore order that the case is remitted to DBS for a new decision. 112. Where the Upper Tribunal remits an appeal to DBS for redetermination it may set out findings of fact which it has made on which DBS must base its new decision. We have considered what the Court of Appeal said in DBS v AB at \u00a7[55]: \u201can Upper Tribunal will need to consider carefully whether it is appropriate for it to set out particular facts on which the DBS must base its decision when remitting a matter to the DBS for a new decision. For example, the Upper Tribunal would have to have sufficient evidence to find a fact. Further, given that the primary responsibility for assessing the appropriateness of including a person in the children\u2019s barred list (or the adults\u2019 barred list) is for the DBS, the Upper Tribunal will have to consider whether, in context, it is appropriate for it to find facts on which DBS must base its decision.\u201d 113. In his evidence at the hearing SV made various arguments about how the call bell system worked. He indicated that a call bell being \u201cunplugged\u201d did not necessarily mean that it was not effective: they were designed to be capable of being removed from the wall and placed in a convenient place, such as on a table, and would still raise an alarm when pressed. He claimed that if a call bell was disconnected in such a way that it was ineffective then this would be recorded on the system. We note that in his disciplinary meeting on 30 August 2018 SV made the point that the disconnection of a call bell was something that was recorded on the system: \u201cThat\u2019s why I said if the cable came out you can check the print out\u201d (see page 56 of the appeal bundle). If the system will have recorded whatever action resulted in the deactivation of JY\u2019s call bell, and if SV pointed that out during the employer\u2019s investigation, it is puzzling that the record wasn\u2019t checked. If that record were available it would presumably have been important evidence, especially if it showed that the call bell was removed between 12:45am and 6am, when it was not disputed that SV was on the upper floor. 114. We do not consider it appropriate to make any findings on this evidence, but these are clearly issues which DBS will wish to get to the bottom of when it redetermines SV\u2019s case on remittal. 115. Section 4(7)(b) of the 2006 Act provides that if the Upper Tribunal remits a matter to DBS under Section 4(6) of the 2006 Act the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise. We do not consider that there are compelling reasons to depart from the default position under Section 4(7)(b) and we therefore do not make such a contrary direction. Thomas Church Judge of the Upper Tribunal Mr John Hutchinson Ms Heather Reid Members Authorised for issue on 21 February 2022<\/p>\n<\/div>\n<hr class=\"kji-sep\" \/>\n<p class=\"kji-source-links\"><strong>Sources officielles :<\/strong> <a class=\"kji-source-link\" href=\"https:\/\/caselaw.nationalarchives.gov.uk\/ukut\/aac\/2022\/55\" target=\"_blank\" rel=\"noopener noreferrer\">consulter la page source<\/a><\/p>\n<p class=\"kji-license-note\"><em>Open Justice Licence (The National Archives).<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"<p>On appeal from the Disclosure and Barring Service (\u201cDBS\u201d) DBS Reference: 00900357370 Final Decision Letter: 17 January 2020 The decision of the Upper Tribunal is to allow the appeal. The decision of DBS made on 17 January 2020 was made in error of law. Pursuant to Section 4(6)(b) of the Safeguarding Vulnerable Groups Act 2006 (\u201c2006 Act\u201d) this case is&#8230;<\/p>\n","protected":false},"featured_media":0,"template":"","meta":{"_crdt_document":""},"kji_country":[7608],"kji_court":[9033],"kji_chamber":[],"kji_year":[32183],"kji_subject":[7612],"kji_keyword":[7705,13657,15615,7622,7636],"kji_language":[7611],"class_list":["post-673057","kji_decision","type-kji_decision","status-publish","hentry","kji_country-royaume-uni","kji_court-upper-tribunal-administrative-appeals-chamber","kji_year-32183","kji_subject-fiscal","kji_keyword-appeal","kji_keyword-barred","kji_keyword-barring","kji_keyword-evidence","kji_keyword-tribunal","kji_language-anglais"],"yoast_head":"<!-- This site is optimized with the Yoast SEO Premium plugin v27.5 (Yoast SEO v27.5) - https:\/\/yoast.com\/product\/yoast-seo-premium-wordpress\/ -->\n<title>SV v DBS - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/kohenavocats.com\/ru\/jurisprudences\/sv-v-dbs\/\" \/>\n<meta property=\"og:locale\" content=\"ru_RU\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"SV v DBS\" \/>\n<meta property=\"og:description\" content=\"On appeal from the Disclosure and Barring Service (\u201cDBS\u201d) DBS Reference: 00900357370 Final Decision Letter: 17 January 2020 The decision of the Upper Tribunal is to allow the appeal. The decision of DBS made on 17 January 2020 was made in error of law. 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