MFAG v The Disclosure and Barring Service: [2024] UKUT 330 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Brunner on 15 October 2024
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Judicial Summary
Safeguarding Vulnerable Groups Act 2006 - appeal against decision of the Disclosure and Barring Service to include the appellant, who had possessed indecent images of children, on both barred lists. Appeal refused. Analysis of authorities relating to proportionality. Independent Safeguarding Authority v SB [2012] EWCA Civ 977 followed, and approach adopted of objectively judging whether the DBS’s decision to bar was proportionate, undertaking the ordinary judicial task of weighing up the competing considerations on each side, but giving appropriate weight to the DBS’s views. ‘Appropriate weight’ was significant weight, because the central feature in this appeal was assessment of level of risk and prediction of future risk, which particularly engages the specialist expertise of the DBS. The Upper Tribunal did not not start afresh, or make a decision about proportionality de novo; it did not ignore the DBS’s decision and start again as if DBS had never determined the matter. A three-step approach proposed by the DBS for determining proportionality was rejected as unnecessarily complex and unsupported by authorities.