EB v Disclosure and Barring Service
[2023] UKUT 105 (AAC)
MSB v Disclosure and Barring Service
27 February 2024
[2024] UKUT 61 (AAC)
Upper Tribunal
A childminder was wrongly put on a list of people banned from working with children and vulnerable adults. A court reviewed the case and found many mistakes. Even though one small mistake was made, the court decided it was unfair to keep the childminder on the list because she had been a good childminder for many years after the mistake. The court ordered her name to be removed from the list.
Key Facts
- •MSB, a childminder, was added to the children's and adults' barred lists by the Disclosure and Barring Service (DBS).
- •The DBS's decision was based on two findings: failure to notify Ofsted of critical concerns regarding household members (relating to rape allegations against MSB's son), and failure to notify Ofsted of her husband's conditional discharge for battery against his son.
- •MSB appealed to the Upper Tribunal, arguing mistakes of fact by the DBS.
- •The Upper Tribunal found that the DBS made mistakes of fact in most of its findings.
- •The Upper Tribunal considered whether to remit the case to DBS or direct removal from the barred lists.
Legal Principles
The Upper Tribunal's jurisdiction in appeals against DBS decisions is limited to reviewing mistakes of fact and law, as defined in section 4 of the Safeguarding Vulnerable Groups Act 2006 (SVGA).
Safeguarding Vulnerable Groups Act 2006, section 4
The Upper Tribunal can direct the DBS to remove a person from a barred list if removal is the only lawful decision in light of the law and facts as found by the Tribunal. This is determined by applying the test, not examples from case law.
Disclosure and Barring Service v AB [2021] EWCA Civ 1575
The Upper Tribunal's assessment of appropriateness of barring is limited; if there's a question of appropriateness, the matter should be remitted to the DBS.
Disclosure and Barring Service v AB [2021] EWCA Civ 1575
A failure to report to Ofsted may constitute relevant conduct under Schedule 3 SVGA, although this was not definitively decided in the case.
Schedule 3 SVGA, paragraph 3 and 4
Outcomes
The Upper Tribunal directed the DBS to remove MSB from both barred lists.
The Tribunal found that the DBS made significant mistakes of fact. Only one finding (failure to report husband's conviction in 2012) remained, which in the context of the entire history, warranted removal from the lists as it would be irrational to bar her in light of the circumstances.