TM v Disclosure and Barring Service
[2023] UKUT 192 (AAC)
AD v Disclosure and Barring Service
7 November 2023
[2023] UKUT 280 (AAC)
Upper Tribunal
A man was put on a list that prevents him from working with children and vulnerable adults after he was acquitted of sexual offences but had behaved inappropriately towards a young patient. A court decided that the list was correctly applied based on his past actions, even though he's improved since then and might be removed from the list in the future.
Key Facts
- •AD, a 28-year-old former teaching assistant, was acquitted of sexual offences but the DBS included him on the Children's Barred List (CBL) and Adults' Barred List (ABL).
- •The DBS's decisions were based on findings of relevant conduct, including failing to maintain professional boundaries with a vulnerable 13-14 year old patient (RYH), allowing RYH access to pornography, and failing to report concerning behaviour.
- •AD appealed, arguing material errors of fact and law, and disproportionality.
- •AD provided a report from an independent Forensic Psychosexual Therapist (Ms Appleyard) stating he posed no future risk of sexual offending.
- •The Upper Tribunal considered the evidence and the DBS's reasoning.
Legal Principles
An appeal against a DBS decision can only succeed if the DBS made a mistake of law or a material mistake of fact.
Safeguarding Vulnerable Groups Act 2006, section 4(2)
The decision on whether it is appropriate to bar someone is not a question of law or fact and is not appealable.
Safeguarding Vulnerable Groups Act 2006, section 4(3)
The Upper Tribunal can review the DBS's factual findings, but it gives weight to the DBS's expertise in risk assessment.
PF v Disclosure and Barring Service [2020] UKUT 256 (AAC)
The appropriateness of barring is primarily for the DBS, and the Upper Tribunal will only interfere if there's a legal or factual flaw.
DBS v AB [2021] EWCA Civ 1575
Proportionality requires a fair balance between the individual's rights and the community's interests.
Belfast City Council v Miss Behavin’ Limited (Northern Ireland) [2007] UKHL 19
Outcomes
Appeal dismissed.
The Upper Tribunal found no material mistakes of law or fact in the DBS's decisions. While acknowledging AD's progress, the Tribunal's jurisdiction was limited to the 2020 and 2021 decisions, and the DBS's risk assessments were deemed rational at that time.