Introduction

The case Disclosure and Barring Service v AB ([2021] EWCA Civ 1575) explores the boundaries of the Upper Tribunal's powers in reviewing decisions made by the Disclosure and Barring Service (DBS) regarding inclusion on the children's barred list. The respondent, AB, an organist and choirmaster, was accused of inappropriate sexual conduct with choir members, leading to his inclusion on the barred list. AB sought to have his name removed, challenging the DBS's decision through appeals that ultimately reached the England and Wales Court of Appeal.

Summary of the Judgment

The Court of Appeal set aside the decisions of the Upper Tribunal that directed the DBS to remove AB's name from the children's barred list. The core reasons for setting aside these decisions included:

• The Upper Tribunal erroneously identified three errors of law in the DBS's decision.
• It improperly exercised its jurisdiction by assessing the appropriateness of AB's inclusion on the barred list, a function reserved for the DBS.
• The Upper Tribunal misinterpreted Section 4(6) of the Safeguarding Vulnerable Groups Act 2006, leading to an unlawful direction for removal.

Consequently, the Court of Appeal mandated the Upper Tribunal to reconsider the case without overstepping its legal boundaries.

Analysis

Precedents Cited

The judgment references several key cases that delineate the roles and limitations of the Upper Tribunal in DBS appeals:

• Independent Safeguarding Authority v SB (Royal College of Nursing Intervening) [2012] EWCA Civ 977: Clarified that the Upper Tribunal should not engage in evaluating the appropriateness of inclusion on barred lists, focusing instead on legal and factual errors.
• MR v Disclosure and Barring Service [2015] UKUT 005 (AAC): Emphasized that the Upper Tribunal should remit cases back to the DBS unless removal is the only lawful outcome.
• CM v Disclosure and Barring Service [2015] UKUT 707 (AAC): Highlighted the Upper Tribunal's role in assessing appropriateness only when the DBS cannot lawfully make any other decision.
• Khakh v Independent Safeguarding Authority [2012] EWCA Civ 1341: Reinforced the limited scope of the Upper Tribunal in reviewing DBS decisions, focusing solely on errors of law or fact.

Legal Reasoning

The Court of Appeal's reasoning centered on the proper interpretation of the Safeguarding Vulnerable Groups Act 2006, particularly Section 4. The Tribunal erred by not confining its review to legal and factual errors but instead ventured into assessing the appropriateness of AB's inclusion on the barred list—a responsibility solely vested in the DBS.

The Court underscored that the Upper Tribunal lacks the authority to weigh the appropriateness of inclusion unless the DBS is legally bound to remove the individual from the list. In AB's case, since the DBS had not acted unlawfully, the Upper Tribunal should not have directed removal but rather remitted the matter back to the DBS for reconsideration.

Additionally, the Court highlighted that the Upper Tribunal's attempt to set out specific findings of fact was flawed. Such findings should emanate from a correct understanding of the decision letter and respect the DBS's primary role in assessing risk and appropriateness.

Impact

This judgment reaffirms the delineation of responsibilities between the DBS and the Upper Tribunal. It serves as a precedent ensuring that the Upper Tribunal does not overstep its legal jurisdiction by making determinations on appropriateness, thereby maintaining the integrity of the statutory scheme aimed at protecting children and vulnerable adults.

Future cases will likely reference this decision to prevent similar overreaches by the Upper Tribunal, ensuring that appellate bodies respect the defined boundaries of their review processes.

Complex Concepts Simplified

Roles of the DBS and Upper Tribunal

Disclosure and Barring Service (DBS): An independent organization responsible for maintaining lists of individuals barred from working with children and vulnerable adults. The DBS assesses the appropriateness of including or retaining an individual's name on these lists based on specific criteria.

Upper Tribunal: A judicial body that reviews decisions made by lower tribunals or organizations like the DBS. Its role is limited to identifying errors in law or factual findings made by these bodies. It does not assess the appropriateness of decisions unless constrained by legal errors.

Section 4(6) of the Safeguarding Vulnerable Groups Act 2006

This section outlines the remedial actions the Upper Tribunal can take upon identifying an error in the DBS's decision. The Tribunal can either:

• Direct the removal of an individual's name from the barred list if removal is the only lawful outcome.
• Remit the case back to the DBS for a new decision when multiple lawful outcomes are possible.

Importantly, the Tribunal cannot independently decide to remove a name unless it's legally compelled to do so due to specific errors.

Conclusion

The Court of Appeal's decision in Disclosure and Barring Service v AB underscores the strict boundaries within which appellate bodies like the Upper Tribunal must operate. By setting aside the Upper Tribunal's decision to remove AB from the children's barred list, the Court reaffirmed that determining the appropriateness of such listings remains the exclusive domain of the DBS, barring any procedural or legal errors.

This judgment serves as a crucial reference point for future appeals, ensuring that the protective framework for vulnerable individuals is upheld by maintaining clear separations of authority between decision-making bodies and appellate tribunals.