JHB v The Disclosure and Barring Service
[2024] UKUT 367 (AAC)
Disclosure and Barring Service v JHB
17 August 2023
[2023] EWCA Civ 982
Court of Appeal
A man was barred from working with children and vulnerable adults. A tribunal disagreed with the decision, but a higher court said the tribunal made mistakes and didn't follow the rules. The case has to be looked at again by the tribunal the right way.
Key Facts
- •JHB was convicted of a sexual offence against a 13-year-old child.
- •His name was included in the children's barred list and subsequently the adults' barred list by the DBS.
- •JHB appealed to the Upper Tribunal (UT), which found the DBS made mistakes of law and fact.
- •The UT remitted the matter to the DBS for a new decision, making its own findings of fact.
- •The DBS appealed to the Court of Appeal, arguing the UT acted beyond its powers.
Legal Principles
The UT's power on appeal is limited to identifying mistakes of law or fact made by the DBS; it cannot substitute its own assessment of the evidence or appropriateness of barring.
Section 4 of the Safeguarding of Vulnerable Groups Act 2006 (SVGA)
A finding of fact is distinct from a value judgment or assessment of risk; the UT cannot make its own findings of fact unless the DBS's findings are shown to be erroneous.
AB v Disclosure and Barring Service [2021] EWCA Civ 1575
On appeal, the UT must start with the DBS's decision as the correct position, unless it identifies an error of law or fact. The UT should not simply substitute its own judgment.
PF v Disclosure and Barring Service [2020] UKUT 256 (AAC)
The UT cannot consider matters not raised in the grounds of appeal or canvassed with the DBS during the hearing.
Kakh v ISA [2013] EWCA Civ 1341; B v ISA [2013] EWCA Civ 977
Outcomes
The Court of Appeal allowed the DBS's appeal.
The UT misunderstood its powers, made its own findings of fact without identifying errors in the DBS's findings, and considered matters not properly before it. The UT's actions exceeded its statutory jurisdiction.
The case was remitted to the UT for rehearing.
The Court of Appeal found the UT's decision to be unlawful due to procedural irregularities and misinterpretations of its statutory powers.