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Court of Appeal delivers judgment in important regulatory case

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The Court of Appeal today handed down a significant judgment about the jurisdiction of the Upper Tribunal when it hears appeals against decisions of the Disclosure and Barring Service (DBS) to place people on the DBS barred lists. The Court of Appeal’s judgment clarifies the extent of the Upper Tribunal’s ‘mistake of fact’ jurisdiction under the Safeguarding of Vulnerable Groups Act 2006. The judgment will have wide-ranging consequences for the DBS, which is likely to have to hear oral evidence themselves before barring people, or call witnesses to give evidence in statutory appeals against barring decisions.

The case concerned a social worker, RI, who was accused of stealing money from a service user. She denied the allegation but her employer dismissed her. She maintained her denial in representations to the DBS. The DBS decided that on the balance of probabilities RI had stolen the money and placed her on its adults barred list. The DBS did not hear any oral representations from RI before it did so. RI appealed to the Upper Tribunal under section 4 SVGA 2006, which permits a person to challenge DBS barring decisions on the basis that the DBS has made an error of fact. She contended that the error of fact was the finding that she had stolen money, which she had not done. The Upper Tribunal heard her give evidence, which was tested by cross-examination and judicial questions. The Tribunal determined that her account was credible and found that she had not stolen any money. It ordered the DBS to remove the social worker from the barred list on the basis that the DBS had made a mistake of fact.

The DBS appealed against the decision of the Upper Tribunal on grounds that the Tribunal had simply re-assessed the evidence the DBS had already considered and reached a different conclusion, which is impermissible. The DBS contended that the social worker had given no new evidence in her oral testimony and that the Tribunal was not permitted to find that the DBS had made a mistake of fact merely because it believed the social worker’s denial was credible. According to the DBS,  the Tribunal was required to identify some other mistake of fact on which the decision to bar had been based, and only then was it permitted to evaluate the evidence for itself.

The Court of Appeal dismissed the DBS’s appeal. It observed that the DBS had acted ‘deplorably’ by failing to remove the social worker from its barred list for over a year after it was ordered to. The Court found that the DBS’s arguments for restricting the jurisdiction of the Upper Tribunal in this area were ‘chilling’ and unjust because it would mean that people like RI would have no opportunity to appeal to the Upper Tribunal on the basis that they simply didn’t do the alleged act which led to their barring.

Instead, the Upper Tribunal was entitled to find a mistake in any material error of fact, and the Court confirmed the legal principles set out in PF v DBS [2020] UKUT 256 (AAC) The Court of Appeal endorsed the submissions of Ed Kemp and Tom Gillie, who represented the successful Respondent to the appeal, as an accurate description of the Tribunal’s mistake of fact jurisdiction: the Upper Tribunal is entitled to make a finding that an appellant’s denial of wrongdoing is credible, such that it is a mistake of fact to find that the appellant did the impugned act. In so doing, the Upper Tribunal is entitled to hear oral evidence from an appellant and to assess it against the documentary evidence on which the DBS based its decision. That is qualitatively different from merely reviewing the evidence that was before the DBS and coming to different conclusions (which is not open to the Upper Tribunal). The Court also ordered the DBS to pay costs to the Access to Justice Foundation.

Tom Gillie and Edward Kemp were involved in this case.

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