AW v Disclosure and Barring Service
[2024] UKUT 258 (AAC)
EB v Disclosure and Barring Service
3 March 2023
[2023] UKUT 105 (AAC)
Upper Tribunal
A nighttime caregiver was wrongly put on a list that prevents her from working with kids or vulnerable adults. A judge heard her side of the story, found the accusations against her weren't true, and ordered her name removed from the list.
Key Facts
- •EB, a waking night support worker, was included in the Children's Barred List and the Adults' Barred List by the Disclosure and Barring Service (DBS).
- •Two allegations were made against EB concerning her care of a 13-14 year old child, KK, with complex needs.
- •Allegation 1: Inappropriate conduct and responses to a colleague, JP, in front of KK.
- •Allegation 2: Forcing KK to drink lemonade and preventing him from vomiting.
- •EB appealed the DBS decision under section 4 of the Safeguarding Vulnerable Groups Act 2006.
- •The Upper Tribunal heard oral evidence from EB and other witnesses.
Legal Principles
An appeal under section 4(2)(b) of the 2006 Act on the ground of a mistake of fact allows the Tribunal to make different or additional findings of fact.
Section 4(2)(b) Safeguarding Vulnerable Groups Act 2006
The Upper Tribunal must distinguish between findings of fact and value judgments or evaluations of the relevance or weight of facts in assessing appropriateness (as per section 4(3)).
Disclosure and Barring Service v AB [2021] EWCA Civ 1575
The Upper Tribunal can only direct DBS to remove a person from a list if that is the only lawful decision given the law and facts.
Disclosure and Barring Service v AB [2021] EWCA Civ 1575
A 'mistake' of fact can be an incorrect finding, incomplete finding, or omission, and can include states of mind.
PF v Disclosure and Barring Service [2020] UKUT 256 (AAC)
The Tribunal is not bound by the evidence before the DBS and can consider further evidence.
PF v Disclosure and Barring Service [2020] UKUT 256 (AAC)
Outcomes
The appeal is allowed.
The Respondent (DBS) made mistakes of fact when deciding to include the Appellant in the Adults’ Barred List and the Children’s Barred List.
The Respondent is directed to remove the Appellant from both lists.
The Tribunal found that, considering both allegations, no reasonable decision-maker could justify barring the Appellant based on the facts.