Introduction

The case of Disclosure and Barring Service v RI ([2024] EWCA Civ 95) represents a significant development in the interpretation of the Safeguarding Vulnerable Groups Act 2006 (SGVA). This comprehensive commentary delves into the intricate legal nuances of the judgment delivered by the England and Wales Court of Appeal (Civil Division) on February 9, 2024. The primary parties involved are the Disclosure and Barring Service (DBS) and an individual referred to as RI, whose inclusion and subsequent removal from the Adults' Barred List form the crux of this legal dispute.

At the heart of this case lies the procedural and substantive aspects of the DBS's authority to bar individuals from regulated activities involving vulnerable adults. The key issues revolve around the appellate jurisdiction concerning mistakes of fact made by the DBS in its decision-making process and the implications of allowing the Upper Tribunal (UT) to consider oral evidence in such appeals.

Summary of the Judgment

RI, a former support worker accused by her employer, Metropolitan Thames Valley Housing (MTVH), of financially abusing a vulnerable adult named RV, was included in the Adults' Barred List by the DBS following internal disciplinary proceedings that led to her dismissal. RI contested this inclusion, denying the allegations of theft, and an appeal was successfully made to the UT, resulting in her removal from the Barred List in May 2022.

The DBS sought to challenge the UT's decision, leading to an appeal to the Court of Appeal. The primary contention was whether the UT had erred in its approach to evaluating a "mistake of fact" under section 4(2)(b) of the SGVA. The Court of Appeal, with the majority judgment authored by Lord Justice Bean, upheld the UT's decision to remove RI from the Barred List, affirming a broader interpretation of the mistake of fact jurisdiction that accommodates the consideration of oral evidence and the appellant's credibility.

Analysis

Precedents Cited

The Court of Appeal's decision heavily references several key cases that have shaped the understanding of appellate jurisdiction concerning findings of fact:

• AB v DBS [2021] EWCA Civ 1575: This case emphasized the need for distinctions between findings of fact and value judgments, guiding how tribunals should approach mistakes of fact.
• PF v DBS [2020] UKUT 256 (AAC): Here, the Upper Tribunal clarified that a mistake of fact encompasses any incorrect, incomplete finding or omission, extending beyond merely differing conclusions.
• JHB v DBS [2023] EWCA Civ 982: Although initially presenting challenges to the interpretation of mistake of fact jurisdiction, subsequent judgments in Kihembo v DBS [2023] EWCA Civ 1547 reinforced the broader scope of the UT's jurisdiction.
• R (Royal College of Nursing) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin): This case provided foundational interpretations of mistake of fact within the SGVA framework.
• The Supreme Court's interpretation in Henderson v Foxworth Investments Ltd [2014] UKSC 41 further influenced the appellate reasoning by addressing the standards for appellate courts reviewing trial judge findings.

Legal Reasoning

The Court of Appeal focused on the nature and extent of the UT's jurisdiction to identify and correct mistakes of fact. Lord Justice Bean articulated that under section 4(2)(b) of the SGVA, a mistake of fact includes any incorrect finding, incomplete finding, or omission related to the core facts upon which the DBS's decision was based. Importantly, the UT's ability to hear and assess oral evidence means that its findings can be informed by a broader evidentiary base than that considered by the DBS, which primarily relied on documentary evidence.

The Court rejected the DBS's argument that the UT had overstepped by making a mistake of fact based solely on differing conclusions from similar evidence. Instead, it held that the UT was within its rights to evaluate the appellant's credibility and consider new oral evidence that was not previously assessed by the DBS.

Furthermore, the Court emphasized that the mistake of fact jurisdiction is not confined to mere disagreements on evidence evaluation but extends to any substantive errors in factual findings. This interpretation aligns with the idea that appeals should provide an effective remedy against wrongful inclusion on the Barred List, ensuring procedural fairness and the protection of individuals' rights.

Impact

This judgment significantly broadens the appellate scope for individuals challenging DBS's decisions. By affirming that the UT can consider oral evidence and assess the credibility of appellants, the Court of Appeal has strengthened procedural safeguards against erroneous or unjustified barrings. Future cases will likely see more appellants successfully presenting oral testimony to substantiate claims of innocence or to refute allegations, thereby enhancing the fairness and accuracy of the DBS's barred list processes.

Additionally, this decision may prompt the DBS to reconsider its reliance on purely documentary evidence and internal investigations, potentially leading to more rigorous standards of evidence before barring individuals. It underscores the judiciary's role in ensuring that administrative bodies like the DBS operate within lawful and fair boundaries, particularly given the severe consequences of being placed on a Barred List.

Complex Concepts Simplified

Mistake of Fact Jurisdiction

Under the SGVA, individuals can appeal to the UT if they believe the DBS has made a "mistake of fact" in its decision to include them on a barred list. A "mistake of fact" can involve incorrect findings, omissions, or incomplete facts that the DBS relied upon. This jurisdiction allows the UT to reassess the evidence, including new oral testimonies, to determine whether the original DBS decision was based on erroneous facts.

Adults' Barred List

The Adults' Barred List is a registry maintained by the DBS, listing individuals who are prohibited from working or volunteering in regulated activities with vulnerable adults. Inclusion on this list is intended to protect vulnerable populations from potential abuse or harm by barred individuals.

Upper Tribunal (Administrative Appeals Chamber)

The Upper Tribunal (Administrative Appeals Chamber) serves as an appellate body for decisions made by the DBS. It reviews appeals on grounds such as mistakes of law or fact, ensuring that administrative decisions are fair, accurate, and based on correct interpretations of the law.

Discretionary Powers of the UT

The UT possesses discretionary powers to either uphold the DBS's decision, order the removal of an individual's name from the barred list, or remit the matter back to the DBS for reconsideration. This discretion is exercised based on the thorough evaluation of all available evidence, including new oral testimonies provided during the appeal.

Conclusion

The Disclosure and Barring Service v RI judgment marks a pivotal moment in the administrative law landscape, particularly concerning the interpretation and application of mistake of fact jurisdiction under the SGVA. By endorsing the UT's broader evaluative scope and its capacity to consider oral evidence and assess credibility, the Court of Appeal has reinforced essential procedural protections for individuals facing inclusion on the Adults' Barred List.

This decision not only upholds the principles of fairness and justice but also ensures that administrative bodies like the DBS operate within the confines of lawful and accurate decision-making processes. Moving forward, appellants will have greater assurance that their appeals can be substantively reviewed, potentially leading to more accurate and just outcomes in the sensitive context of safeguarding vulnerable groups.

In the broader legal context, this judgment emphasizes the judiciary's role in overseeing and rectifying administrative decisions that carry significant personal and professional ramifications, thereby strengthening the accountability and integrity of public safeguarding mechanisms.