Key Issues in the Kihembo v Disclosure and Barring Service Case: Burden of Proof, Mistake of Fact, and Appellate Jurisdiction

Citation: [2023] EWCA Civ 1547
Judgment on


The case of Patricia Kihembo v Disclosure and Barring Service presents a comprehensive analysis of the appeal process from administrative decisions concerning inclusion on barred lists, as established by the Disclosure and Barring Service (DBS). This article delves into the legal principles relevant to the case, discussing the court’s interpretation and application of the Safeguarding Vulnerable Groups Act 2006 (SVGA 2006), Judicial Review principles, the burden of proof, and the limits of appellate intervention in findings of fact.

Key Facts

Patricia Kihembo, a former live-in carer, appealed against the Upper Tribunal’s (UT) decision upholding the DBS’s inclusion of her name on the Adults’ and Children’s Barred Lists. The DBS decisions were based on allegations that Kihembo had repeatedly hit a service user, SJP, who has cerebral palsy. The police investigation was concluded with no further action due to insufficient evidence. The case brought into question the decision-making process of the UT when reviewing DBS’s decisions based on alleged factual mistakes and the application of the legal burden of proof.

Appeal Jurisdiction and Grounds for Appeal

The case underscores the specific appeal rights provided by s 4 of the SVGA 2006 and s.13 of the Tribunals, Courts and Enforcement Act 2007. The UT may only consider appeals from the DBS on the grounds that there has been a mistake in law or fact, effectively limiting its scope to issues akin to “conviction” and not “sentence.” This distinction draws a clear procedural boundary for appellants and tribunals alike.

Burden of Proof

Significant attention is given to the altered burden of proof by the UT’s erroneous approach of requiring Kihembo to disprove the allegations. The UT’s rhetorical question, “SJP has no mental health issues and is mentally competent, so why should we not believe her?”, implied an improper shift in the burden onto the Appellant, straying from the standard legal principle that the DBS carries the burden of proving the allegations on a balance of probabilities.

Mistake of Fact Jurisdiction

The Court of Appeal scrutinized the UT’s application of the mistake of fact jurisdiction. Based on the PF v DBS case, the principle clarifies what constitutes a mistake of fact and how the appellate tribunal is to regard decisions made by the DBS. Misinterpretations or disagreements over the evaluation of evidence do not qualify as such a mistake. The article considered the degree of deference owed to the DBS’s original decision, examining the circumstances under which fresh evidence is permissible and the influence of the DBS’s expertise and special understanding.


The appeal succeeded on the grounds that the UT had reversed the burden of proof (Ground 3), and that the matter should be remitted to the DBS for a fresh determination (Ground 1). It was decided that the tribunal should not have made a decision on the appropriateness of inclusion in the barred lists; rather this is a question for the DBS, once factual accuracy is assured. The matter is to be remitted for a new decision regarding the alleged single incident, while the UT’s findings regarding the non-existence of the three-month course of conduct should stand.


The Patricia Kihembo v Disclosure and Barring Service case reaffirms well-established legal principles regarding the scope of appeals in administrative law and the correct application of the burden of proof. The court’s guidance on the treatment of appeals on the basis of factual mistakes versus matters of appropriateness aids in understanding the correct procedural approach to appellate review in safeguarding contexts and more broadly in administrative appeal proceedings. It also ensures that future decision-making remains fair, grounded in evidence, and within the proper legal framework.

Related Summaries