Kihembo v Disclosure and Barring Service: Reaffirming Standards for Inclusion on Barred Lists

Introduction

Kihembo v Disclosure and Barring Service ([2023] EWCA Civ 1547) is a pivotal case adjudicated by the Court of Appeal (Civil Division) of England and Wales on December 21, 2023. The appellant, Ms. Patricia Kihembo, challenged the decisions made by the Disclosure and Barring Service (DBS) to include her on both the Adults' Barred List and the Children's Barred List. These decisions stemmed from allegations that Ms. Kihembo, while employed as a live-in carer by Carers 4 U Ltd, had assaulted a service user, Ms. SJP, who suffers from cerebral palsy.

The core issues revolve around the DBS's decision-making process in barring individuals from working with vulnerable groups, the standards of evidence required, and the appellate mechanisms available under the Safeguarding Vulnerable Groups Act 2006 (SVGA 2006). This case examines the procedural fairness, evidential standards, and legal interpretations that underpin decisions to restrict individuals' employment opportunities in sensitive sectors.

Summary of the Judgment

The Court of Appeal upheld Ms. Kihembo's appeal on two of the four grounds presented. Initially, the Upper Tribunal (UT) had dismissed her appeal against the DBS's decision to bar her from working with both adults and children, sustaining the inclusion based on alleged repeated assaults. However, upon appeal, the Court identified procedural and legal errors, particularly concerning the burden of proof and the proper application of legal standards. Consequently, the case was remitted back to the DBS for reconsideration regarding the single incident of assault, while the UT's findings on the three-month pattern of conduct were upheld.

Analysis

Precedents Cited

The judgment extensively references previous cases to delineate the boundaries of appellate review over DBS decisions. Notably, PF v DBS [2020] UK UT 256 (AAC) and DBS v JHB [2023] EWCA Civ 982 were pivotal in shaping the Court's understanding of mistake of fact and the appellate tribunal's jurisdiction. These cases established that the Upper Tribunal must identify specific errors in law or fact rather than merely re-evaluating evidence afresh.

The case also draws on principles from Henderson v Foxworth Investments Ltd [2014] UKSC 41, emphasizing that appellate courts should focus on whether a mistake has been made rather than reassessing factual determinations made by the original tribunal. Additionally, references to Ladd v Marshall [1954] 1 WLR 1489 and Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56 underscore the limitations on introducing fresh evidence and the respect for the original decision-maker's factual findings unless a clear error is identified.

Legal Reasoning

The Court meticulously analyzed the grounds of appeal, focusing primarily on Ground 1 (error in remitting the matter) and Ground 3 (application of the burden of proof). The Court found that the UT had erred in not remitting the case back to the DBS when it identified mistakes of fact in the initial findings. Specifically, the UT failed to adequately justify not reconsidering the single incident of assault, thereby placing an improper burden on Ms. Kihembo to disprove the allegations.

Regarding the burden of proof, the Court noted that the UT seemed to reverse the standard by implying that Ms. Kihembo needed to disprove the allegations, contrary to the presumption that the DBS must prove the allegations on the balance of probabilities. This misapplication of the burden of proof constituted a significant legal error warranting the appeal's success.

The Court further elaborated on the scope of appellate review, affirming that the UT should not make its own factual findings but rather assess whether the DBS's decision was free from legal or factual errors. The decision emphasized that issues of appropriateness for inclusion on barred lists should remain within the DBS's purview unless a legal mistake is evident.

Impact

This judgment reinforces the integrity of the DBS's decision-making process while ensuring that individuals have recourse when procedural or legal errors occur. By clarifying the appellate tribunal's role in identifying mistakes of fact or law, the Court of Appeal delineates the boundaries of judicial intervention, promoting fairness and consistency in the administration of the SVGA 2006.

Practically, the case sets a precedent for future appeals, highlighting the necessity for tribunals to adhere strictly to legal standards without overstepping into re-evaluating evidence. It underscores the importance of correctly assigning the burden of proof and ensures that individuals are not unfairly penalized due to tribunal missteps. For the DBS, the judgment reaffirms the importance of thorough and accurate fact-finding in barring decisions, while for legal practitioners, it provides clarity on the limits of appellate review in similar contexts.

Complex Concepts Simplified

Conclusion

The Kihembo v Disclosure and Barring Service case serves as a crucial reaffirmation of the procedural and legal standards governing barring decisions under the SVGA 2006. By addressing and rectifying errors related to the burden of proof and the remit of appellate tribunals, the Court of Appeal ensures that individuals are afforded fair opportunities to challenge unjustified restrictions on their employment. The judgment balances the need for safeguarding vulnerable groups with the imperative of protecting individuals from erroneous and disproportionate penalties, thereby reinforcing the legal framework's integrity and fairness.