DMR v Disclosure and Barring Service: [2024] UKUT 426 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Church on 13 December 2024
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Judicial Summary
This case raises issues about the extent to which the sharing by an individual of their personal beliefs on controversial topics can amount to ‘relevant conduct’ for the purposes of the Safeguarding Vulnerable Groups Act 2006 and the extent to which barring a person on the basis of their having shared their personally held views may be proportionate.
The panel decides that, while it would clearly be improper for the DBS to act as “thought police”, barring people for the views that they hold or for expressing those views privately, the DBS did no such thing in this case.
The Appellant’s opposition to gay marriage, his opposition to abortion in all but very limited circumstances, his belief that there are “only two biological genders” and his belief that transgender people require psychological help, are all beliefs which he is entitled to hold, and his simply holding those beliefs gives rise to no risk of harm to children. Neither does his expressing those views in his private life.
However, a person who works in regulated activity with children, such as a teacher, must take care when addressing such sensitive topics given the particular vulnerability of children, especially adolescent children, in relation to topics such as gender identity, sexuality and abortion. Making statements about such topics without taking such care is capable of amounting to ‘relevant conduct’ in relation to children because it may cause emotional harm or, if repeated, may risk emotional harm.
We find that it was irrational of the DBS to rely on DMR telling offensive jokes to colleagues as establishing ‘relevant conduct’ in relation to children in the absence of compelling evidence that he might repeat such conduct in relation to children. This was in error of law, but it was not material to the Barring Decision because the DBS was entitled to find that the things he said to students amounted to ‘relevant conduct’ in relation to children, and it would have placed DR’s name on the children’s barred list without relying on DMR telling such jokes. Given the potential for emotional harm as a result of his words, its decision to do so was not disproportionate. Sutcliffe v Secretary of State for Education [2024] EWHC 1878 (Admin) discussed.