AD v Disclosure and Barring Service
[2023] UKUT 280 (AAC)
WW v The Disclosure and Barring Service
25 September 2023
[2023] UKUT 241 (AAC)
Upper Tribunal
A teacher was put on a list that prevents him from working with children after being convicted of raping his wife. The organization that made the decision didn't follow its own rules, so the judge sent the case back to be decided again correctly. The teacher will stay on the list until the new decision.
Key Facts
- •The Appellant, a teacher, was convicted of two counts of rape against his ex-wife.
- •The DBS decided to include the Appellant on the Children's Barred List (CBL).
- •The DBS failed to escalate the case to the Head of Service, despite their own guidance requiring escalation when public confidence is a deciding factor.
- •The Appellant had a long, unblemished career working with children before the conviction.
- •The Appellant maintained his innocence.
- •The DBS's decision relied on the seriousness of the offence, the Appellant's denial, and public confidence.
Legal Principles
Legitimate expectation and good administration require public authorities to follow their promises and practices unless there's a good reason not to.
R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 and R (WL (Congo)) v Secretary of State for the Home Department [2012] 1 AC 245
A decision by an authority not to follow its procedures is an error of law only if it results in unfairness.
AP v Independent Safeguarding Authority [2012] UKUT 412 (AAC)
The Upper Tribunal's role is to review for errors of law or fact, not to reassess the appropriateness of a barring decision.
Safeguarding Vulnerable Groups Act 2006, section 4(3), and DBS v AB [2021] EWCA Civ 1575
Unless removal from the barred list is the only lawful outcome, the matter should be remitted to the DBS for a new decision.
DBS v AB [2021] EWCA 1575
Outcomes
Appeal allowed.
The DBS failed to follow its own guidance by not escalating the case to the Head of Service, which constituted a material error of law.
DBS decision set aside.
The failure to escalate to the Head of Service was a material error of law.
Matter remitted to DBS for a new decision.
It was not clear that the only lawful decision was removal from the CBL.
Appellant's name to remain on the CBL until the DBS makes a new decision.
The Tribunal directed otherwise under section 4(7)(b) due to the complexities of the case.