AA v The Disclosure and Barring Service
[2024] UKUT 126 (AAC)
FH v The Disclosure and Barring Service
4 January 2024
[2024] UKUT 43 (AAC)
Upper Tribunal
A teaching assistant was accused of hitting a child. The DBS banned her from working with children. But a higher court heard new evidence and found that the DBS was wrong. The ban was overturned because the court found the witnesses unreliable and the original evidence incomplete. The court decided that the teaching assistant likely didn't hit the child.
Key Facts
- •FH, a teaching assistant, was accused of hitting a 5-year-old pupil (S).
- •The Disclosure and Barring Service (DBS) included FH in barred lists based on witness accounts from AML (a fellow teaching assistant) and EP (a site manager).
- •FH denied hitting S and appealed to the Upper Tribunal.
- •The Upper Tribunal heard evidence not presented to the DBS, including FH's account of the incident, her position relative to witnesses, background noise levels, and her gestures.
- •The Tribunal considered the reliability of AML and EP's accounts, noting inconsistencies and the limitations of their view and hearing due to distance and noise.
- •S's parents reported no unusual behavior in their son after the alleged incident.
Legal Principles
The Upper Tribunal can consider evidence not before the DBS to determine if a mistake of fact was made.
Disclosure and Barring Service v JHB [2023] EWCA Civ 982
A finding of fact can be wrong even if some evidence supports it, provided the evidence requires a different view.
Disclosure and Barring Service v JHB [2023] EWCA Civ 982, relying on Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56
The Upper Tribunal cannot reassess evidence unless an error of fact in the DBS's approach is identified.
Disclosure and Barring Service v JHB [2023] EWCA Civ 982
Under Section 4(6)(a) of the Safeguarding Vulnerable Groups Act 2006, if the Upper Tribunal finds a mistake of fact by the DBS, it must direct the DBS to remove the person from the barred list.
Safeguarding Vulnerable Groups Act 2006
Outcomes
The Upper Tribunal directed the DBS to remove FH from both barred lists.
The Tribunal found that the DBS made a mistake in its finding of fact due to overlooking crucial evidence regarding FH's position, background noise, and her gestures. The Tribunal concluded that the witness accounts were unreliable and that FH did not intentionally hit the child.