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Disclosure and Barring Service v AB [2021] EWCA Civ 1575

An appeal concerning the powers of the Upper Tribunal hearing an appeal against a decision by the Disclosure and Barring Service, regarding the continued inclusion of the respondent’s name in the children's barred list.

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The Background

The appellant was the Disclosure and Baring Service ("the DBS") appealing a decision by the Upper Tribunal Hearing that it was no longer appropriate for the name of the respondent, ("AB"), to be included in what is known as the children's barred list, that is, a list of persons barred from engaging in certain activities relating to children.

AB was an organist and choirmaster in respect of whom allegations were made by four girls in the choir that they had engaged in inappropriate sexual conduct with him (when they were over 16 years old) one of whom went on to have sexual intercourse with him (when she was over 18 years old), which led to his name being placed on the children's barred list and then transferred to the children's barred list.

AB sought to have that decision reviewed by the DBS under paragraph 18 of Schedule 3 of the Protection of Children Act 1999 ("the 1999 Act"), on the basis that, although he recognised that his previous conduct was below the standard required, he had demonstrated an ability to modify his behaviour and the DBS granted permission for a review as this suggested a material change in his circumstances. Having conducted its review, the DBS decided that his name should remain on the list prompting AB to appeal to the Upper Tribunal.

In an interim decision, the Upper Tribunal found that decision of the DBS was based on three errors of law, namely (1) an implied assumption that AB's sexual interest in teenage girls created a risk, or more of a risk than that presented by other heterosexual men, of the behaviour being repeated without giving reasons for that assumption (2) the decision did not explain why AB's self-interest was less of a mitigating factor than insight into harm and (3) the DBS had failed to enquire into, or make findings of fact about, two incidents involving one of the four girls when she was 19 years old.

In its final decision disposing of the appeal, the Upper Tribunal held that it had power to determine whether it was appropriate for AB to remain on the children's barred list and decided it was not for the reasons already given in its interim decision and directed the DBS to remove his name from the list.

This DBS then sought to appeal both the interim and final decision of the Upper Tribunal on the grounds that it had:

(1) erroneously identified errors of law in the DBS decision of 26 May 2016;

(2) erred in its findings of fact;

(3) erred in its disposal of the appeal as it misinterpreted section 4(6) of the Act in its approach to remittal and incorrectly decided the question of appropriateness of the inclusion of the respondent in the list itself rather than remitting the matter to the DBS.

The Appeal

The leading judgment in the appeal was delivered by Lord Justice Lewis ("The Judge"), who, having addressed the legal framework for including the name of a person in a list of persons barred from working with children at [8-13], went on to analyse the decisions of the DBS [21- 23] and Upper Tribunal [24-35] respectively.

In delivering the court's decision, the Judge considered the law and submissions presented having divided the issues into errors of law and fact [37- 62] and the powers of the Upper Tribunal on an appeal [63-77].

Having done so, at [76] the Judge found, "significant parts of the fact finding exercise the Upper Tribunal conducted to be dubious." and, ultimately, concluded that [81]:

"The Upper Tribunal erred in its interim decision in finding that the DBS had failed to give adequate reasons for certain implied assumptions said to underlie its decision of 21 May 2016. On a fair and proper reading of the decision letter, the DBS had not made any such assumptions and it did not, therefore, err in law by failing to give reasons for such assumptions. The Upper Tribunal erred in finding that the DBS acted unlawfully by not investigating the circumstances, or making findings of fact relating two incidents involving EF in 2002. The Upper Tribunal erred in exercising its powers under section 4(7) of the Act to find certain facts in its interim decision. Further, the Upper Tribunal erred in its interpretation of section 4(6) of the Act. The Upper Tribunal may not consider the appropriateness of a decision to include a person's name in a barred list in deciding whether to direct the removal of a person's name from a barred list or remit the matter to the DBS. The Upper Tribunal ought only to direct removal where, as a result of its findings of law or fact, the only decision that the DBS could lawfully come to would be to remove the person's name from the barred list. I would set aside the interim decision of 29 June 2018 and the decision of 11 March 2020 and remit the matter to a differently constituted Upper Tribunal."

Finally, having made his decision, the Judge considered how the appeal should be disposed of given that, as an appeal on a point of law, this is governed by section 13 of the Courts, Tribunal and Enforcement Act 2007 ("the 2007 Act") and should be remitted to a differently constituted Upper Tribunal which, due to the passage of time, it might not be able to now tell whether the circumstances have changed. He concluded that this was the only realistic choice as AB remained entitled to have the decision reviewed by the Upper Tribunal and it was for him to decide whether to do so and whether to make an application under paragraph 18A as well as, or instead of an appeal, concluding that it is ultimately for the DBS to deal with as the appeal court can only exercise the powers conferred upon it by section 14 of the 2007 Act.

Case summary by Lucinda Wicks, Barrister, Coram Chambers

For full case, please see BAILII