Key Facts
- •Patricia Kihembo appealed a decision by the Disclosure and Barring Service (DBS) to include her in the Adults' and Children's Barred Lists.
- •The DBS's decision was based on allegations by a service user, SJP, that Ms. Kihembo repeatedly hit her with a shoehorn and spoon.
- •The police investigation concluded with no further action due to a lack of evidence.
- •The Upper Tribunal (UT) dismissed Ms. Kihembo's appeal, upholding the DBS's decision.
- •Ms. Kihembo appealed to the Court of Appeal.
Legal Principles
Appeals to the UT from DBS decisions can be made on grounds of mistake of law or mistake in findings of fact, but the UT cannot decide on the appropriateness of inclusion in a barred list.
Safeguarding Vulnerable Groups Act 2006 (SVGA 2006), section 4
Appeals to the Court of Appeal from UT decisions are confined to points of law.
Tribunals, Courts and Enforcement Act 2007, section 13
The burden of proof in DBS proceedings is on the balance of probabilities.
Paragraph 10 and the UT's reasoning
A disagreement about the evaluation of evidence is not an error of fact.
DBS v JHB [2023] EWCA Civ 982
The Court of Appeal can only direct removal from the barred lists if no rational decision-maker could have made a finding of fact adverse to the appellant.
AB v DBS and the Court's reasoning
Outcomes
The Court of Appeal allowed the appeal on Grounds 1 and 3.
The UT erred in law by not remitting the matter to the DBS for reconsideration (Ground 1) and by reversing the burden of proof (Ground 3).
The matter was remitted to the DBS for reconsideration.
The UT's finding that the three-month course of conduct was not proven should stand, but the alleged single incident should be reconsidered. A decision-maker without prior involvement should assess whether the single incident occurred and whether it is appropriate to keep Ms. Kihembo on the barred lists, considering the passage of time.