Factual and Procedural Background
This appeal concerns a teacher ("Appellant") who challenged a decision of the Upper Tribunal (Administrative Appeals Chamber) ("UT") dismissing his appeal against a decision by the Disclosure and Barring Service ("DBS") made on 15 September 2020 to include his name in the children's barred list ("Barring Decision"). The case raises issues about whether the DBS or the UT is bound by findings of fact made in disciplinary proceedings before a competent body, here the Teachers' Regulation Authority ("TRA"), and if not, whether legal constraints exist on departing from those findings without fresh evidence.
In August 2019, allegations arose that the Appellant had formed an inappropriate relationship with a 16-year-old former pupil ("Pupil A"). The allegation was initially made by Pupil A's father, who witnessed Pupil A entering the Appellant’s car. Pupil A later admitted to a relationship involving communication via Snapchat, several lifts in the Appellant’s car, and four kisses. The police investigated but did not charge the Appellant. The School dismissed him and referred the matter to the DBS and TRA.
The DBS issued a "minded to bar" letter in April 2020 and, after representations, decided in September 2020 to place the Appellant on the barred list based on the balance of probabilities regarding the relationship and conduct. The TRA initiated disciplinary proceedings, alleging unacceptable professional conduct including inappropriate meetings, Snapchat communications, and physical contact with Pupil A.
The TRA professional conduct panel held hearings in May and August 2021, with evidence from the Appellant, Pupil A’s father, and the School’s head teacher. Pupil A did not give oral evidence but provided a witness statement. The panel found the Appellant had given Pupil A lifts on two occasions after she left the School and had engaged in an inappropriate relationship but did not find other allegations proved or that the conduct was sexually motivated. The panel concluded the conduct did not amount to professional misconduct or bring the profession into disrepute.
The UT admitted the TRA decision and materials into evidence for the appeal against the Barring Decision. The Appellant argued that the TRA findings, made after a contested hearing, disproved the DBS conclusions and that the Barring Decision was based on mistakes of fact. The UT identified key legal issues including the significance and binding nature of the TRA decision and whether the Barring Decision was based on a mistake of fact. The UT concluded the DBS was not bound by the TRA findings and that the Barring Decision was not mistaken.
The Appellant appealed the UT decision on four grounds related to alleged errors of law, misdirection, exceeding jurisdiction, and misunderstanding res judicata principles. The appeal was ultimately dismissed.
Legal Issues Presented
- Whether the DBS or the UT is bound by findings of fact made by a competent body (TRA) in disciplinary proceedings under paragraph 16 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.
- Whether the Barring Decision was based on a mistake of fact, specifically concerning findings that the Appellant had an exploitative attitude, formed a personal relationship with Pupil A for gratification, and engaged in sexual activity by kissing her four times.
- Whether the UT erred in law by reopening findings of fact made by the TRA or misunderstanding the application of the res judicata principle.
Arguments of the Parties
Appellant's Arguments
- The UT erred by failing to give significant weight to the TRA decision, which disproved the DBS conclusions.
- The UT misdirected itself by allowing findings of fact to be made on almost identical evidence to that considered by the TRA panel but reached different conclusions.
- The UT exceeded its jurisdiction by reopening findings of fact made by the TRA panel.
- The UT misunderstood the principle of res judicata and improperly permitted relitigation of a cause of action already concluded.
- The inability to challenge TRA fact-findings in DBS representations under paragraph 16(3) of Schedule 3 indicates the importance and weight to be afforded to those findings.
Respondent's (DBS) Arguments
- Paragraph 16 of Schedule 3 only precludes challenging fact-findings before the DBS at the representation stage, not on appeal to the UT.
- The DBS and TRA serve different statutory functions; the DBS is not bound by TRA findings and may reach different conclusions based on risk assessments.
- The UT has jurisdiction to make its own findings of fact and is not bound by previous determinations by the TRA.
- The principle of res judicata does not apply as the DBS and TRA proceedings involve different parties, causes of action, and statutory schemes.
- There is no abuse of process or collateral attack in the UT making findings inconsistent with the TRA panel.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Hunter v Chief Constable of the West Midlands [1982] AC 529 |
Abuse of process principle preventing collateral attacks on final decisions of competent courts. |
Held that the principle did not prevent the DBS from defending the appeal by making different fact-findings from the TRA panel. |
| Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 21 |
Clarification of abuse of process doctrine and its limits in protecting rights and public confidence. |
Supported the view that the UT exercising its statutory jurisdiction is not an abuse of process. |
| Greene v Davies [2022] EWCA Civ 414 |
Confirmed that civil court findings do not necessarily preclude disciplinary proceedings on the same facts. |
Used to demonstrate that the UT was entitled to reach conclusions different from the TRA panel. |
| R (Mandic-Bozic) v British Association for Counselling and Psychotherapy [2016] EWHC 3134 (Admin) |
Issue estoppel and fairness in overlapping disciplinary proceedings by professional bodies. |
Distinguished on facts; not binding as TRA and DBS have different statutory roles and functions. |
| Secretary of State for Business, Innovation and Skills v Potiwal [2012] EWHC 3723 (Ch) |
Issue estoppel in directors' disqualification proceedings and unfairness in relitigation. |
Held that the fact-specific nature of estoppel limits its application in this context. |
| Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 |
Application of res judicata in public law proceedings and statutory schemes. |
Explained that res judicata applies only where statutory schemes intend finality and parties are the same; not applicable here. |
| Hillside Parks Ltd v Snowdonia National Park Authority [2020] EWCA Civ 1440 |
Limitations on res judicata in public law where statutory bodies must not fetter statutory powers. |
Supported the conclusion that res judicata does not bind the DBS in its statutory functions. |
| R(Coke-Wallis) v Institute of Chartered Accountants [2011] UKSC 1 |
Cause of action estoppel in disciplinary proceedings before independent adjudicative bodies. |
Referenced to explain that estoppel can apply but facts differ here as DBS and TRA are separate regimes. |
| DN (Rwanda) v Secretary of State for the Home Department [2020] UKSC 7 |
Obiter dicta on res judicata and finality in public law. |
Considered but did not assist the Appellant’s case. |
| Barnes v Chief Constable of Thames Valley Police [2023] EWHC 2737 (Admin) |
Res judicata and collateral attack principles in disciplinary and employment contexts. |
Confirmed that disciplinary powers and employment decisions are distinct and not subject to res judicata as alleged. |
| Secretary of State for Trade and Industry v Baker (No.4), Re Barings Plc [1999] BCC 639 |
Distinction between proceedings with different purposes and objectives. |
Used to illustrate the difference between DBS and TRA proceedings. |
| PF v DBS [2020] UKUT 256 (AAC) |
UT’s appellate jurisdiction to hear new evidence and make own findings on DBS decisions. |
Supported the UT’s approach in considering all evidence, including TRA findings. |
| Kihembo v DBS [2023] EWCA Civ 1547 |
Approval of UT’s approach to DBS appeals and evidence evaluation. |
Confirmed that UT is not bound by DBS findings and may make own assessments. |
| DBS v JHB [2023] EWCA Civ 982 |
Limits on overturning DBS findings by UT when evidence is identical and findings are not irrational. |
Distinguished as UT had additional evidence and made own findings here. |
| DBS v RI [2024] EWCA Civ 95 |
Clarification of when UT should overturn DBS findings based on same evidence. |
Confirmed that this principle does not bind UT to TRA findings and UT had additional evidence. |
Court's Reasoning and Analysis
The Court analysed the statutory framework governing the DBS and TRA, noting their distinct functions: the DBS’s protective, forward-looking role aimed at safeguarding children, and the TRA’s disciplinary role focused on professional conduct. It examined paragraph 16 of Schedule 3 to the 2006 Act, concluding it precludes challenging fact-findings before the DBS at the representation stage but does not bind the DBS or the UT on appeal.
The Court rejected the Appellant’s argument that the UT must give significant or greater weight to the TRA findings, holding that the UT must afford appropriate weight to all evidence, including the TRA decision, the DBS decision, and oral evidence, and make its own assessment. It found no statutory or principled basis to circumscribe the UT’s jurisdiction to make independent findings of fact.
The Court considered abuse of process and res judicata principles, finding no abuse or estoppel applicable since the DBS and TRA proceedings involve different parties, statutory schemes, and purposes. The UT was entitled to make findings inconsistent with the TRA panel’s conclusions.
Regarding the standard of proof, the Court found the UT’s concerns about the TRA panel’s approach misplaced and affirmed the UT’s role in assessing the reliability and persuasiveness of evidence. The Court also distinguished relevant precedents relied upon by the Appellant, emphasizing the unique statutory context and functions of the DBS and TRA.
Ultimately, the Court agreed with the UT’s conclusion that the Barring Decision was not based on mistakes of fact and that the UT had properly applied the law and carefully evaluated the evidence.
Holding and Implications
The Court’s final decision is to DISMISS the appeal.
The direct effect is that the UT’s decision upholding the DBS’s Barring Decision stands, meaning the Appellant remains on the children’s barred list and is prohibited from teaching. No new precedent was established beyond affirming the existing legal framework that the DBS and UT are not bound by fact-findings of the TRA panel and retain jurisdiction to make independent assessments on appeal. The decision clarifies the distinct roles of the DBS and TRA and confirms the UT’s appellate authority in barring decision appeals.