AD v Disclosure and Barring Service
[2023] UKUT 280 (AAC)
CD v Disclosure and Barring Service
17 September 2024
[2024] UKUT 291 (AAC)
Upper Tribunal
A teacher (CD) was wrongly banned from working with children and vulnerable adults. A court looked at the evidence again and found some things the banning agency got wrong. The ban wasn't completely lifted, but the agency has to make a new decision with the corrected information. The teacher remains banned until that happens.
Key Facts
- •CD was included in the children's and adults' barred lists by the Disclosure and Barring Service (DBS).
- •The DBS's decision was based on findings of fact relating to exposure, breaching professional boundaries, and fixation with a student.
- •CD appealed to the Upper Tribunal (UT).
- •The UT found the DBS made mistakes in its findings of fact.
- •The UT considered evidence from a Crown Court trial where CD was acquitted, police interviews, and statements from students and colleagues.
- •The UT found insufficient evidence to prove the exposure allegation.
- •The UT found that CD breached professional boundaries through inappropriate communication and behavior with students but did not support the fixation allegation due to inconsistencies in the evidence.
Legal Principles
The Upper Tribunal's jurisdiction and powers are set out in section 4 of the Safeguarding Vulnerable Groups Act 2006 (SVGA).
SVGA section 4
Appeals to the Upper Tribunal against DBS decisions can only be made on the grounds that DBS made a mistake in a point of law or in a finding of fact.
SVGA section 4(2)
The standard of proof in appeals to the Upper Tribunal is the balance of probabilities (civil standard).
Case Law Reasoning
A previous DBS decision not to include someone in a barred list does not prevent a later inclusion if new evidence emerges.
Case Law: *JT v Disclosure and Barring Service* [2022] UKUT 29 (AAC) and *SV v Disclosure and Barring Service* [2022] UKUT 55 (AAC)
The UT can remit the matter to DBS for a new decision if it finds a mistake of fact or law; or direct DBS to remove the person from the list.
SVGA section 4(6)
Outcomes
The Upper Tribunal found that the DBS made mistakes in its findings of fact.
Insufficient evidence to support the exposure allegation; inconsistencies and flawed reasoning regarding boundary breaches and fixation.
The matter was remitted to the DBS for a new decision based on the UT's findings of fact.
The UT could not direct removal from the list because its revised findings did not meet the test established in *Disclosure and Barring Service v AB* [2022] 1 WLR 1022.
CD remains on the barred lists pending the DBS's new decision.
The UT did not direct otherwise under SVGA section 4(7)(b).