XYZ v DBS
[2024] UKUT 85 (AAC)
PQ v The Disclosure and Barring Service
5 June 2024
[2024] UKUT 161 (AAC)
Upper Tribunal
A teaching assistant was barred from working with children after several schools raised concerns about his behaviour with students. Even though some of the specific concerns weren't fully proven, enough evidence remained to show he acted inappropriately. A court upheld the decision to bar him, as the organization responsible for barring people from working with children had followed the correct procedures.
Key Facts
- •Appeal against the Disclosure and Barring Service's (DBS) decision to include the Appellant (PQ) on the Children's Barred List.
- •Allegations of inappropriate conduct towards multiple female students at three different schools.
- •Allegations included unprofessional conduct, suspected grooming behaviour, inappropriate physical contact, and social media interactions.
- •Police investigation found insufficient evidence for criminal charges.
- •LADO (Local Authority Designated Officer) convened three ASV (Allegations against Staff and Volunteers) meetings.
- •ASV meetings concluded PQ posed a risk of harm to children and was unsuitable to work with them.
- •Agency dismissed PQ for gross misconduct.
- •DBS received two referrals and conducted its own investigation.
- •DBS's final decision found PQ engaged in relevant conduct and that barring was appropriate.
- •Appeal to the Upper Tribunal was based on insufficient evidence, unfair process, and disproportionality.
- •Upper Tribunal heard oral evidence from PQ and reviewed documentary evidence.
- •Upper Tribunal upheld five of the six allegations, finding one allegation lacked sufficient evidence.
Legal Principles
Appeal against a DBS barring decision can only be made on the grounds of a mistake of law or fact by the DBS; the appropriateness of barring is non-appealable.
Safeguarding Vulnerable Groups Act 2006, section 4(2), (3), and (5)
The DBS can rely on hearsay evidence; the question is the weight attached to it, not admissibility.
R (on the application of SXM) v The Disclosure and Barring Service [2020] EWHC 624 (Admin)
The Upper Tribunal can make its own findings of primary fact, considering both oral and written evidence.
DBS v RI [2024] EWCA Civ 95
In proportionality assessments, the Upper Tribunal must consider the legislative objective, rational connection of measures, necessity, and fair balance, while affording weight to the DBS's judgment.
R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621 and ISA v SB and RCN [2012] EWCA Civ 977
Outcomes
Appeal dismissed.
The Upper Tribunal found no material mistake of fact or error of law in the DBS's decision. While one allegation was dismissed for lack of evidence, sufficient remaining evidence supported the barring decision.