JHB v The Disclosure and Barring Service
[2024] UKUT 367 (AAC)
SD v Disclosure and Barring Service
17 August 2024
[2024] UKUT 249 (AAC)
Upper Tribunal
A support worker was barred from working with children and vulnerable adults. She appealed, saying she'd improved since then. The court said it could only look at whether the original decision was wrong at the time it was made, not whether she'd changed. The appeal was dismissed.
Key Facts
- •SD, a residential support worker, was included in the children's and adults' barred lists by the Disclosure and Barring Service (DBS) for failing to maintain professional boundaries with a child, JW, and failing to report safeguarding concerns.
- •SD appealed to the Upper Tribunal (UT), arguing that post-decision developments, including counselling and self-reflection, showed a change of circumstances and that the DBS decision was disproportionate.
- •The central legal issue was whether the UT could consider post-decision evidence to determine if the DBS made a mistake of fact under section 4(2)(b) of the Safeguarding Vulnerable Groups Act 2006.
Legal Principles
An appeal against a DBS decision under section 4(2)(b) of the SVGA 2006 can only be based on mistakes of fact as they existed at the time of the DBS decision.
Safeguarding Vulnerable Groups Act 2006, section 4(2)(b)
The UT's jurisdiction is limited to identifying mistakes of fact or law made by the DBS at the time of its decision; post-decision changes of circumstances are not grounds for appeal.
Safeguarding Vulnerable Groups Act 2006, section 4
While the UT can consider evidence not before the DBS, this evidence must relate to the facts as they existed at the time of the decision, not to subsequent changes in circumstances.
Case law (including KB v Disclosure and Barring Service [2021] UKUT 325 (AAC))
Schedule 3, paragraph 18A of the SVGA 2006 provides a separate mechanism for DBS to review its decisions in light of new information or changed circumstances.
Safeguarding Vulnerable Groups Act 2006, Schedule 3, paragraph 18A
Outcomes
The UT confirmed the DBS's decision to include SD in the barred lists.
The UT found that SD's post-decision evidence, while demonstrating positive developments, did not show that the DBS made a mistake of fact at the time of its decision. The UT's jurisdiction is limited to reviewing the facts as they were at the time of the DBS's decision, not considering subsequent changes in circumstances.