VM v Disclosure and Barring Service
[2024] UKUT 220 (AAC)
CNS v Disclosure and Barring Service (Safeguarding)
21 June 2024
[2024] UKUT 221 (AAC)
Upper Tribunal
A mom was barred from working with children after allegedly hurting her son. A court reviewed the decision. Although there was a minor error in the reasons for the bar, the main reason—the mom hurting her son—was correct. The court decided the bar was fair.
Key Facts
- •CNS (C) appealed a Disclosure and Barring Service (DBS) decision to include her name on the Children's Barred List (CBL).
- •The DBS decision was based on two findings: (i) assault of her son (H) in April 2021, and (ii) failure to inform her employer about a social services plan.
- •C argued that both findings were based on mistakes of fact and that the barring decision was disproportionate.
- •The Upper Tribunal (UT) held a remote hearing where C appeared in person.
- •The UT considered evidence from the DBS (including medical reports, social services records, and witness statements), and C's oral evidence and cross-examination.
- •The UT found C's evidence unreliable and incredible.
- •The UT found the DBS's first finding of fact (the assault) to be correct, but there was a material mistake of fact in relation to the second finding (failure to disclose).
Legal Principles
An appeal to the UT can only succeed if the DBS made a material mistake of law or fact.
Safeguarding Vulnerable Groups Act 2006, section 4(2)
The decision whether or not it is appropriate to include an individual on a barred list is not a question of law or fact.
Safeguarding Vulnerable Groups Act 2006, section 4(3)
The UT has jurisdiction to identify and make findings on evidence heard, determining whether a mistake of fact occurred. However, risk assessment generally remains the DBS's purview.
PF v DBS UKUT [2020] 256 AAC and DBS v RI [2024] EWCA Civ 95
In proportionality assessments, the UT must give appropriate weight to the DBS's decision as an expert body.
Independent Safeguarding Authority v SB [2012] EWCA Civ 977
Proportionality is assessed using the four questions outlined in *Huang v Secretary of State for the Home Department* [2007] 2 AC 167.
R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621
Outcomes
The UT dismissed C's appeal.
The UT found the DBS did not make material mistakes of fact or law. While a material mistake of fact existed regarding the second finding, the first finding (assault) alone was sufficient to justify the barring decision. The UT also found the decision was not disproportionate.