VM v Disclosure and Barring Service
[2024] UKUT 220 (AAC)
SJS v Disclosure and Barring Service
22 July 2024
[2024] UKUT 227 (AAC)
Upper Tribunal
A support worker was banned from working with children. An appeal court said the decision-makers made a mistake by not looking at a good reference from his previous job, so they have to make the decision again.
Key Facts
- •SJS, a support worker, was included in the children's barred list by the Disclosure and Barring Service (DBS) due to two incidents.
- •The 'van incident': SJS fell asleep on duty, leaving his van keys unattended, resulting in a 16-year-old child absconding in the vehicle.
- •The 'inappropriate language incident': SJS made inappropriate sexual comments to children at his workplace, resulting in a final written warning.
- •SJS appealed to the Upper Tribunal (UT), arguing mistakes of fact and law by the DBS.
- •The UT found that DBS made a mistake of fact by not considering a positive reference from SJS's previous employer.
- •The UT also found that DBS did not err in law by considering the two incidents as a single course of conduct reflecting a failure to maintain professional boundaries.
Legal Principles
The Upper Tribunal's jurisdiction and powers in appeals against DBS decisions are governed by section 4 of the Safeguarding Vulnerable Groups Act 2006 (SVGA).
Safeguarding Vulnerable Groups Act 2006
An appeal against a DBS decision can only be made on the grounds that DBS made a mistake of law or fact in its findings.
Safeguarding Vulnerable Groups Act 2006, section 4(2)
The appropriateness of including an individual in a barred list is not a question of law or fact for appeal purposes.
Safeguarding Vulnerable Groups Act 2006, section 4(3)
Proportionality in barring decisions must be assessed against the four questions outlined in B v Independent Safeguarding Authority [2013] 1 WLR 308.
B v Independent Safeguarding Authority [2013] 1 WLR 308
Outcomes
The Upper Tribunal remitted the matter to the DBS for a new decision.
The UT found that the DBS made a mistake of fact by failing to consider a positive reference from SJS's previous employer. This reference was relevant to the inappropriate language incident, a key factor in the DBS's decision. While other aspects of the decision were upheld, the omission of the reference required a new decision.