Court of Appeal Clarifies Upper Tribunal’s Power in DBS Appeal Cases

Citation: [2024] EWCA Civ 95
Judgment on

Introduction

In the recent judgment of the Court of Appeal (Civil Division) in the case of the Disclosure and Barring Service (DBS) v RI, legal precision has been given to the scope of the Upper Tribunal’s powers when hearing appeals on factual mistakes from decisions of the DBS under s.4 of the Safeguarding Vulnerable Groups Act 2006. This article sets out to analyze the key topics discussed and the legal principles applied in this case, elucidating on how the Court of Appeal has clarified the applicability of mistake of fact appeals under the Act.

Key Facts

RI, previously a support worker for vulnerable adults, appealed against the decision of the DBS to include her on the Adults’ Barred List for alleged theft from a service user. The Upper Tribunal (UT) allowed RI’s appeal, directing the removal of her name, based on a primary finding that RI did not steal any money. The DBS then appealed to the Court of Appeal, arguing primarily that the UT had adopted an impermissible approach to the mistake of fact jurisdiction on appeal from the DBS.

The critical legal principles addressed in this case revolved around the interpretation of s.4(2)(b) of the Safeguarding Vulnerable Groups Act 2006 and the extent to which the UT could make its own factual determinations upon appeal.

  1. Mistake of Fact Jurisdiction: The Court of Appeal clarified that the UT has jurisdiction to overturn the DBS’s decision if satisfied, on a balance of probabilities, that a mistake of fact was made by the DBS when it included a person on the barred list.

  2. Evaluation of Oral Evidence: The courts underscored that, where the UT hears oral evidence, it may assess this evidence as part of the entire evidentiary picture, contrary to the DBS’s paper-based decision-making process.

  3. UT’s Independent Judicial Assessment: The principles expounded affirmed the UT’s role as an independent tribunal with the power to make findings of primary fact and to draw inferences from the evidence before it.

  4. JHB and Kihembo Precedents: The judgments in DBS v JHB and Kihembo v DBS were considered, with the Court of Appeal indicating that the ratio in JHB should be confined to cases where the UT hears no oral evidence, or no evidence which is relevant to whether the barred person committed the relevant act.

  5. Policy Considerations: Policy arguments such as resource allocation and the DBS’s investigatory practices were not seen as relevant to the determination of the legal jurisdiction of the UT.

Outcomes

The Court of Appeal decisively dismissed the appeal from the DBS, upholding the UT’s finding and allowing RI’s name to be removed from the Adults’ Barred List. The decision reinforces the UT’s ability to independently evaluate evidence, including new oral evidence, and underscores the procedural safeguarding role of the UT in appeals from barred list decisions.

Conclusion

The DBS v RI case reaffirms the UT’s jurisdictional ability to overturn factual findings underlying DBS barred list decisions where new oral evidence is brought to bear. It underscores the UT’s role as a fact-finder and its power to consider appeal bases that the DBS, as an administrative decision-maker, would not have access to. For practitioners, this judgment reinforces the importance of the UT hearings as an avenue where new evidence can be presented and scrutinized, potentially altering the outcome of cases with significant personal and professional implications for individuals on the barred lists.