XYZ v Disclosure and Barring Service (DBS): [2024] UKUT 85 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Church on 19 March 2024.
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Judicial Summary
This appeal concerns the situation where Disclosure and Barring Service (DBS) makes a barring decision on the papers prior to the conclusion of regulatory proceedings (in this case, fitness to practice proceedings before the Teaching Regulation Agency) in which substantially the same allegations as were considered by the DBS are to be considered by the regulator but where the regulatory proceedings permit oral evidence to be heard and tested. The Appellant argued before us that it was improper and an abuse of process for the DBS on an appeal by a barred person to stand by its findings to the extent that they were inconsistent with the findings of the regulator made following a superior process where the findings of the regulator had not been successfully appealed. It was also argued that the Upper Tribunal too was bound to accept those findings and could uphold the DBS’s decision to bar the Appellant only if such a decision was still available notwithstanding the findings of the regulator, and that it would be res judicata and an abuse of process for the Upper Tribunal either to make findings of fact that contradicted the findings of the regulator or to find that the findings made in the regulatory proceedings were in error.
We decided that the DBS is not bound to accept the findings of fact made by a regulator in separate proceedings, and for it to resist an appeal on the basis that its findings of fact involved no mistake involved no impropriety or abuse of process.
We decided that the Upper Tribunal was not bound to accept the findings of fact made by such a regulator. We decided that on an appeal as to mistake of fact the Upper Tribunal’s role was to examine all the relevant evidence (including the evidence relating to the regulatory proceedings, as well as the evidence heard by the panel at the hearing before the Upper Tribunal). In doing so it must give appropriate weight to the regulator’s decision, just as it must give appropriate weight to the DBS’s decision. It must then decide, based on its own assessment of that evidence, whether the DBS’s barring decision was based on any mistake of fact.