AD v Disclosure and Barring Service
[2023] UKUT 280 (AAC)
TM v Disclosure and Barring Service
1 August 2023
[2023] UKUT 192 (AAC)
Upper Tribunal
TM was put on a list that stops him from working with vulnerable adults because of past crimes. He said the reason wasn't good enough, and a judge agreed. The judge sent the case back to be looked at again, and TM is off the list until then.
Key Facts
- •TM was convicted of several child sex offences in June 2020, including possessing indecent images and engaging in sexual communication with someone he believed to be a 14-year-old boy.
- •TM applied for an enhanced DBS check and was subsequently included in both the Children's and Adults' Barred Lists.
- •TM appealed only the inclusion in the Adults' Barred List.
- •TM's online conversations included a statement expressing sexual interest in 13-19 year olds.
- •TM argued the decision was disproportionate and based on inadequate reasoning.
- •The DBS argued that TM's behaviour demonstrated a risk to vulnerable adults, citing his online statements and actions.
- •The DBS acknowledged TM's efforts to address his offending but maintained the risk remained.
Legal Principles
Appeals against inclusion in a barred list can be made on points of law or fact, but a decision on appropriateness is only challengeable if wrong in law.
Section 4 of the Safeguarding Vulnerable Groups Act 2006
A "mistake" of law or fact is an error that might have made a difference to the outcome.
R (Royal College of Nursing) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin)
A proportionate measure must be appropriate and necessary to achieve its objective.
Implicit in the reasoning of the court
The DBS cannot differentiate on the basis of age when considering inclusion in the Adults' Barred List.
Schedule 3, paragraph 8 of the Safeguarding Vulnerable Groups Act 2006
Outcomes
The appeal was allowed.
The DBS did not provide adequate reasons for finding that inclusion in the Adults' Barred List was proportionate.
The DBS decision was set aside and remitted for a new decision.
The Upper Tribunal found insufficient reasoning regarding proportionality, while acknowledging a risk to young adults.
TM must be removed from the Adults' Barred List until the new decision is made.
The Upper Tribunal deemed it unnecessary to maintain the bar pending reconsideration.