Disclosure and Barring Service v AB

Factual and Procedural Background

This appeal concerns the powers of the Upper Tribunal hearing an appeal against a decision by the appellant, the Disclosure and Barring Service ("the DBS"), regarding the inclusion of the respondent on the children's barred list, which prohibits certain activities involving children. The respondent, an organist and choirmaster, faced allegations from four female choir members of inappropriate sexual conduct, including sexual touching when the complainants were over 16 and, in one case, sexual intercourse when the complainant was over 18. The respondent was placed on the barred list in 2004 following these allegations.

In 2014, the respondent applied for a review of his inclusion on the list. The DBS reviewed but decided to retain his name on the list. The respondent appealed to the Upper Tribunal, which in an interim decision of 29 June 2019 found three errors of law in the DBS decision and allowed the appeal. In a final decision dated 11 March 2020, the Upper Tribunal held it had power to determine the appropriateness of retaining the respondent on the list and directed the DBS to remove his name.

The DBS appealed both decisions, contending errors in the Upper Tribunal's findings of law, fact, and powers. The respondent supported the Upper Tribunal's decisions. The appeal proceeded with consideration of the legislative framework, factual background, and submissions of both parties.

Legal Issues Presented

1. Whether the Upper Tribunal erred in law in identifying three errors in the DBS decision of 26 May 2016, specifically regarding implied assumptions about risk and failure to investigate incidents in 2002.
2. Whether the Upper Tribunal erred in making findings of fact in its interim decision beyond its jurisdiction.
3. Whether the Upper Tribunal misinterpreted its powers under section 4(6) of the Safeguarding Vulnerable Groups Act 2006 in deciding the appropriateness of retaining the respondent on the children's barred list rather than remitting the matter to the DBS.

Arguments of the Parties

Appellant's Arguments

• The Upper Tribunal wrongly found errors of law where none existed; the DBS decision did not rest on implied assumptions about the respondent's sexual interest or comparative risk.
• The DBS was entitled not to investigate the precise circumstances of the 2002 incidents as the admitted fact of sexual touching was sufficient.
• The Upper Tribunal improperly made findings of fact which it was not empowered to do, especially given the procedural nature of the alleged errors.
• The Upper Tribunal exceeded its jurisdiction by deciding on the appropriateness of retaining the respondent's name on the barred list; such decisions are reserved for the DBS, and the Upper Tribunal should remit the matter unless removal is the only lawful outcome.

Respondent's Arguments

• The Upper Tribunal correctly found that the DBS failed to provide adequate reasons for its conclusions and did not properly investigate the 2002 incidents.
• The Upper Tribunal was entitled to decide on the appropriateness of removal from the barred list and to direct removal rather than merely remitting the matter to the DBS.
• The 2002 incidents were not a continuation of earlier abusive behaviour but should have been investigated to assess their nature and relevance.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Independent Safeguarding Authority v SB (Royal College of Nursing Intervening) [2012] EWCA Civ 977	Role of the Upper Tribunal on appeals and limits of its powers regarding appropriateness of inclusion on barred lists.	The court noted this precedent was not directly on the scope of powers under section 4(6) of the Act but considered its principles relevant to the appeal.
MR v Disclosure and Barring Service [2015] UKUT 005 (AAC)	Whether the Upper Tribunal should direct removal only if it is the only lawful decision the DBS could make.	The court held that the present Upper Tribunal was not bound by MR and found that MR's approach was correct and consistent with statutory interpretation.
CM v Disclosure and Barring Service [2015] UKUT 707 (AAC)	Assessment of appropriateness by the Upper Tribunal in deciding to direct removal from the barred list.	The court referenced CM as an example where the Upper Tribunal assessed appropriateness but found the present Upper Tribunal erred in doing so.
Khakh v Independent Safeguarding Authority (now DBS) [2012] EWCA Civ 1341	Limits on the Upper Tribunal's jurisdiction to consider appropriateness and requirement for sufficient reasons.	The court relied on Elias LJ's judgment to affirm the Upper Tribunal's limited role to errors of law or fact and the nature of reasons required.
Fileccia v Secretary of State for Work and Pensions [2017] EWCA Civ 1907	Reported decisions of the Upper Tribunal command broad assent and guide interpretation of statutory powers.	The court cited this decision to support the binding nature of MR and consistent interpretation of section 4(6) powers.

Court's Reasoning and Analysis

The court began by examining the role and powers of the Upper Tribunal under the Safeguarding Vulnerable Groups Act 2006, emphasizing the statutory scheme's allocation of responsibility for assessing appropriateness of inclusion on barred lists to the DBS. The Upper Tribunal's role is limited to determining whether the DBS made an error of law or fact; it may not decide appropriateness when assessing errors.

Regarding the three alleged errors of law found by the Upper Tribunal, the court concluded that the DBS decision did not rest on any implied assumptions about the respondent's sexual interest creating a comparative risk, nor did it treat self-restraint as a less reliable mitigating factor than insight without explanation. The DBS's reasoning was based on the respondent's admitted conduct, lack of insight, and ongoing risk factors. Therefore, the Upper Tribunal erred in law in identifying these errors.

Concerning the failure to investigate the 2002 incidents, the court held that the DBS was entitled to rely on the admitted fact of sexual touching after the respondent's road traffic accident without further inquiry into the precise circumstances. This use of the information to assess risk negated the need for further investigation, and the Upper Tribunal's finding of error was unfounded.

The court further analyzed the Upper Tribunal's power to make findings of fact when remitting matters to the DBS. It emphasized the need to distinguish findings of fact from evaluative judgments and cautioned against the Upper Tribunal making findings that encroach on the DBS's role in assessing appropriateness.

On the critical issue of the Upper Tribunal's powers under section 4(6) of the Act, the court interpreted this provision as allowing the Upper Tribunal to direct removal only when that is the sole lawful decision the DBS could make. Otherwise, the matter must be remitted to the DBS to decide appropriateness. The Upper Tribunal erred by deciding appropriateness itself and directing removal.

Overall, the court found that the Upper Tribunal misunderstood the DBS's decision, exceeded its jurisdiction by making findings of fact and appropriateness determinations, and erred in law in both its interim and final decisions.

Holding and Implications

The court SET ASIDE both the Upper Tribunal's interim decision of 29 June 2019 and its final decision of 11 March 2020, including the direction that the respondent's name be removed from the children's barred list.

The case is remitted to a differently constituted Upper Tribunal for proper consideration of the respondent's grounds of appeal in accordance with the correct legal framework. This decision restores the statutory balance whereby the DBS retains primary responsibility for assessing appropriateness of inclusion on barred lists, and the Upper Tribunal's role is confined to reviewing errors of law or fact and exercising its remedial powers accordingly.

No new precedent was established beyond clarifying the limits of the Upper Tribunal's powers under the Safeguarding Vulnerable Groups Act 2006.