Medical and Regulatory Law Specialist Barristers | England, Wales, UK | London, Manchester & Regional
Disclosure and Barring Service (DBS) List Challenges and Appeals
We advise and represent individuals at risk of being placed on the DBS Child List or Vulnerable Adult List, and appeals to the Upper Tribunal arising from DBS decisions to bar. We also assist those individuals who wish to apply to be removed from the list. (England and Wales)
There are mandatory processes for inclusion on the lists, and discretionary processes. We mostly discuss here the law relating to discretionary processes. The legislation that governs this specialist area of law includes:
Safeguarding Vulnerable Groups Act 2006
Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698)
DBS Proposals to Add an Individual to a List (How the DBS Operates)
The DBS will write to an individual who they are considering barring from working with children or vulnerable adults, because of their conduct. The individual will be invited to make written representations. See our article: How to Respond to the Disclosure and Barring Service (DBS) When They Intend to Bar
The Decision
A decision will then be made by a DBS decision-maker as to whether to apply the bar. An indivisual who is put on the list cannot apply to be removed for a period of 10 years, and there will be no guarantee that they will be removed.
Impact of Being Barred
A person who is placed on such a list cannot work with the respective client group in a number of forums. An individual who knowingly or recklessly does so is at risk of being convicted of a criminal offence. See our webpage on Barred List Criminal Prosecutions and the legal services we provide.
Applications for Permission to Appeal
Where the DBS makes a decision to bar, the individual may apply to the Upper Tribunal for permission to appeal. If permission is not granted, one can consider a further appeal from that refusal to a higher court.
An appeal to the Upper Tribunal can only be brought where the DBS made a mistake (a) on any point of law; (b) in relation to any finding of fact on which the decision was based.The appellant will need to draft grounds of appeal to be submitted at the time permission to appeal is sought. The grounds of appeal must be sufficiently arguable for permission to be granted. Submissions should be carefully drafted, and the grounds of appeal carefully identified. The Upper Tribunal will determine whether to grant permission. An oral permission hearing can be requested, if needed, at the permission stage. CPR Part 52 that governs some civil appeals does not apply to Upper Tribunal appeals.Where permission is granted by the Upper Tribunal, the affected person can bring a challenge to the DBS’s decision to bar, at a substantive in-person hearing. The Upper Tribunal permits attendance by videoconference in some instances.
APPEALS FROM DBS DECISIONS:-
Mistakes of Fact: Challenges under section 4(2)(b) of the Safeguarding Vulnerable Groups Act 2006
How broad a meaning will the word ‘mistake’ be given on appeal from a DBS Decision to the Upper Tribunal?
“102 During oral submissions there was some debate about the meaning to be attributed to the phrase ‘a mistake . . . in any finding of fact’ within section 4(2)(b) of the Act. I can see no reason why the subsection should be interpreted restrictively. In my judgment the Upper Tribunal has jurisdiction to investigate any arguable alleged wrong finding of fact provided the finding is material to the ultimate decision.“
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Breaking that passage down:
(1) There must be a mistake of fact.
(2) The mistake of fact must be material to the ultimate decision to bar. This means there must be a key mistaken component that was taken into consideration by the decision-maker that should not have been taken into account, or a failure to take a material fact into account.
What is a ‘mistake of fact’ in DBS Decision-Making?
In another case (PF V DISCLOSURE AND BARRING SERVICE – UPPER TRIBUNAL CASE NO: V/0565/2019 [2020] UKUT 256 (AAC)), the Upper Tribunal put it like this (at para 39):
“93. There is no limit to the form that a mistake of fact may take. It may consist of an incorrect finding, an incomplete finding, or an omission. It may relate to anything that may properly be the subject of a finding of fact. This includes matters such as who did what, when, where and how. It includes inactions as well as actions. It also includes states of mind like intentions, motives and beliefs.”
This is a very useful summary. A mistake can therefore be held to encompass many aspects.
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Appeals Relating to Mistakes of Law
Firstly, The Upper Tribunal Has No power to consider then ‘appropriateness’ of the listing but can consider proportionality
Parliament has determined that the Upper Tribunal shall have no power to determine the appropriateness of an individual being added to the list. That is a matter for the DBS alone. This restriction is a significant curtailment on the power of the tribunal. It was confirmed in the case of B v Independent Safeguarding Authority (Royal College of Nursing intervening) [2012] EWCA Civ 977, [2013] 1 WLR 308, the Upper Tribunal (in a judgment in which the President of the Upper Tribunal sat) determined that an assessment of proportionality must take into account that the DBS is better placed than the tribunal to make decisions to bar. There must therefore be a degree of deference. At para 21, the tribunal held:
“21. …(1) unlike its predecessor, the Care Standards Tribunal, it is statutorily disabled from revisiting the appropriateness of an individual being included in a Barred List, simpliciter; and (2) whereas the Upper Tribunal judge is flanked by non-legal members who themselves come from a variety of relevant professions, they are or may be less specialised than the ISA decision-makers who, by paragraph 1(2) of schedule 1 to the 2006 Act ‘must appear to the Secretary of State to have knowledge or experience of any aspect of child protection or the protection of vulnerable adults’. I intend no disrespect to the judicial or non-legal members of the Upper Tribunal in the present or any other case when I say that, by necessary statutory qualification, the ISA is particularly equipped to make safeguarding decisions of this kind, whereas the Upper Tribunal is designed not to consider the appropriateness of listing but more to adjudicate upon ‘mistakes’ on points of law or findings of fact (section 4(3)).”
Also (at para 27):
“27. Finally, I acknowledge the difficulty faced by the Upper Tribunal in a case such as this. I can think of no other statutory regime in which a tribunal is expressly prohibited from revisiting ‘appropriateness’ but is obliged to address proportionality.”
The decision therefore confirmed that proportionality is a point of law that can be considered by the Upper Tribunal.
Mistakes on a Point of Law
See GM Eritrea v Secretary of State for the Home Department [2008] EWCA Civ 833 and the case of xxxx held (at para 44 to 46):
“44 … The role of the court is to correct errors of law. Examples of such errors include misinterpreting the ECHR (or in a refugee case, the Refugee Convention or the Qualification Directive); misdirecting themselves by propounding the wrong test on some legal question such as the burden or standard of proof; procedural impropriety such as a breach of the rules of natural justice; and the familiar errors of omitting a relevant factor or taking into account an irrelevant factor or reaching a conclusion on the facts which is irrational.
45 But the court should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the AIT’s assessment of the facts. Moreover, where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account.
46 We turn to the first of the Court of Appeal’s criticisms. In our view, the court was wrong to interpret paras 109 and 121 of the determination as if the AIT were saying that they were dismissing the appeal because MA’s account was incredible. In the light of the clear and impeccable self‐direction set out only a few paragraphs earlier (at para 105), and having regard to the need for restraint to which we have referred, the court should surely have been very slow to reach the conclusion that it did. It should only have interpreted these paragraphs in the way that it did if there was no doubt that this is what they meant. It is often easy enough to find some ambiguity or obscurity in a judgment or determination, particularly in a field as difficult and complex as immigration, where the facts may be difficult to unravel and the law difficult to apply. If, as occurred in this case, a tribunal articulates a self‐direction and does so correctly, the reviewing court should be slow to find that it has failed to apply the direction in accordance with its terms. All the more so where the effect of the failure to apply the direction is that the tribunal will be found to have done precisely the opposite of what it said it was going to do. The striking feature of the present case is that the Court of Appeal was of the view that at para 109, the AIT failed to apply the direction that they had set for themselves only four paragraphs earlier.”
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In summary, therefore, unless the Upper Tribunal finds that there is was a mistake of law or fact (that in turn had affected the DBS’s decision), the tribunal must uphold the DBS’s decision to bar.
If the tribunal finds that there was a mistake of fact or law, it has the discretion to:
(a) direct the DBS to remove the person from the list, or
(b) to send the matter back to the DBS for further consideration.
The tribunal may also set out those findings of fact that the tribunal has made, on which the DBS must base its new decision. Where the individual’s case is remitted back to the DBS for a further decision, the individual must be removed from the list until a new DBS decision has been made, unless the tribunal says otherwise.
The DBS has published guidance that may assist readers in interpreting the way the DBS interprets the law: DBS Referral Guidance: Frequently Asked Questions
See also the DBS guidance on bringing appeals in England, Wales or Northern Ireland: https://www.gov.uk/government/publications/dbs-barring-appeals/dbs-barring-appeals
Draft Grounds might therefore include:
(1) The DBS was wrong to find that the barred person may harm/represents a risk of harm to children, or failed to provide adequate reasons for that finding.
(2) The DBS was wrong to find that the barred person may harm/represents a risk of harm to vulnerable adults, or failed to provide adequate reasons for that finding
(3) The DBS was wrong to find it was proportionate to bar the barred person from working with children and/or vulnerable adults, or failed to provide adequate reasons.
These draft grounds are only for illustrative purposes. A full analysis of the points of law or factual disputes would be needed. The merits and prospects should also be evaluated.
It should be noted that there is no retrospective power enjoyed by the Upper Tribunal to retrospectively remove a person from the list, as though the listing had never occurred (see: SM v The DBS 11/4/23 Appeal No. UA-2022-000188-V).
Appeals from the Upper Tribunal lie to the Court of Appeal
The Court of Appeal has limited scope to interfere with a decision of the Upper Tribunal. The case of D v Secretary of State for the Home Department [2012] EWCA Civ 39 (January 2012) is a useful starting point to identify the narrow scope of such an appeal. Just because the Court of Appeal might have formed a different view does not mean that they can overturn the decision below. There must be defects in the decision-making process that justify interference.
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Alexander Chambers: We can advise and represent anyone who faces DBS Barring Decisions or who wishes to Appeal a DBS barring decision. For more details of how we can assist with DBS legal matters and appeals, whether it is by way of advice or representation, contact us on 0845 652 0451
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Telephone: 0845 652 0451