SM v Disclosure and Barring Service: [2025] UKUT 86 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Stout on 11 March 2025
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Judicial Summary
The appellant was included by the Disclosure and Barring Service (DBS) on the children’s and adults’ barred lists because DBS concluded that she had verbally, emotionally and physically abused a vulnerable adult for whom she was caring as a live-in carer. The Upper Tribunal allows her appeal and remits her case to DBS for a fresh decision because the decision was materially unfair as a result of DBS having failed to give her an effective opportunity to make representations on the decision. The Upper Tribunal decides that:
(i) An error of law must be a material error to constitute a mistake for the purposes of section 4(2) of the Safeguarding of Vulnerable Groups Act 2006 (SVGA 2006);
(ii) A procedural error will be a material error of law if it might make a material difference to the outcome or the fairness of the decision;
(iii) As a public authority decision-maker, DBS is required to act fairly. Fairness in a particular case may require DBS to do more than simply comply with the letter of the SVGA 2006. In particular, fairness requires that a person be given an effective opportunity to make representations, not just “the” opportunity as required by paragraph 16(1) of Schedule 3 to the SVGA 2006;
(iv) Paragraph 16(1) requires that the individual be given an opportunity to make representations on “all the information on which DBS intends to rely”. This is an obligation to provide access to information, which may be complied with by offering to make arrangements to view evidence (such as video evidence in this case). It is not an obligation to disclose documents, but in most cases (including this one) it will require DBS to provide all the documents it has received on the case, not just a summary of that information in a letter. Even if DBS is not itself ‘relying’ on some of those documents, fairness may require that they be provided;
(v) A failure by DBS to give someone an effective opportunity to make representations will normally make a material difference to the fairness of the decision because: (a) the right to make representations is fundamental to natural justice; and (b) a failure to afford such opportunity deprives the individual of the opportunity of having DBS fairly consider whether it is appropriate for them to be included in a barred list – a question in respect of which no right of appeal lies to the Upper Tribunal (s 4(3) SVGA 2006);
(vi) A procedural failure may cease to be material if DBS considers late representations or carries out a review and issues a new decision, or if the individual is successful in an appeal to the Upper Tribunal on another ground (whether of law or fact);
(vii) DBS has discretion in all cases to extend the prescribed 8-week period for making representations where there is “good reason” to do so: regulation 2(6) of The Safeguarding Vulnerable Groups Act 2006 (Barring Procedure) Regulations 2008 (SI 2008/474) (the 2008 Regulations)). In this case, DBS had failed lawfully to exercise that discretion. The Upper Tribunal gives guidance on the factors relevant to the exercise of that discretion;
(viii) After a decision has been made, DBS has an open discretion to give permission for late representations to be made and considered under paragraph 17(2) of Schedule 3 to the SVGA. The requirements of natural justice, the Human Rights Act 1998 and public policy factors, mean that, in most cases, DBS should give permission for late representations to be made even where there is no reason why representations were not made earlier. In this case, DBS had failed lawfully to exercise its discretion.