CM V 4510 2013
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 29 June 2015 |
| Neutral Citation | 2015 UKUT 707 AAC |
| Subject Matter | Safeguarding vulnerable groups |
| Respondent | Disclosure and Barring Service |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | V 4510 2013 |
| Appellant | CM |
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow both appeals by the Appellant, CM.
The appeal against the original decision by the Disclosure and Barring Service (DBS) under reference 95/08442W, communicated by letter dated 14 August 2013, is allowed. This is because it involved the making of a mistake on a point of law.
The appeal against the review decision by DBS under reference 95/08442W/APP, communicated by letter dated 14 October 2014, is also allowed. This is because it involved the making of a mistake on a point of law or in a finding of fact.
ORDER: Disclosure or publication of the name of the Appellant or of any matter likely to lead members of the public to identify him is prohibited. Any disclosure or publication in breach of this Order is liable to be treated as a contempt of court and punished accordingly.
REASONS FOR DECISION
Introduction
1. We held an oral hearing of this appeal at Field House in London on 3 March 2015. We apologise for the delay that has followed in finalising and issuing our decision. The delay was principally caused by two factors. First, there were various further written submissions made by the Respondent after the hearing, and we wanted to ensure that the Appellant was given every opportunity to make any further representations in reply. Second, the panel’s final deliberations were delayed by a combination of periods of leave and assignment to other duties.
Summary of the Upper Tribunal’s decision
2. This is an appeal by CM (“the Appellant”), a gentleman now aged 60, against a decision by the Disclosure and Barring Service (DBS) made under the Safeguarding Vulnerable Groups Act 2006 (“the 2006 Act”). The DBS had decided that the Appellant should remain on the Children’s Barred List under the 2006 Act. On this appeal, the Upper Tribunal’s conclusion is that the DBS decision involved a mistake of law or fact. We further direct that the Appellant’s name be removed from the Children’s Barred List.
The oral hearing of the appeal to the Upper Tribunal
3. The Appellant attended and represented himself at the oral hearing. The DBS was represented by Ms Zoe Leventhal of Counsel, instructed by the Government Legal Department. We are grateful to them both for their oral and written submissions. Ms Leventhal put the DBS case with clarity and fairness. The Appellant, who had the obvious disadvantage of not being used to such a situation, nonetheless made his points with care and dignity. Furthermore, for the reasons that follow, we have come to the conclusion we can and should overturn the DBS decision.
The two decisions by the Disclosure and Barring Service
4. There are actually two decisions by the DBS which are under appeal in this case. To avoid confusion we call them the original decision and the review decision.
5. The original decision was contained in the DBS letter dated 14 August 2013. In this “Final Decision Letter” the DBS advised the Appellant “that it is appropriate to continue your inclusion in the Children’s Barred List”. On 8 November 2013 the Appellant sent a letter of appeal to the Upper Tribunal against that decision. On 23 April 2014, and for reasons that we will come to later, Judge Wikeley gave the Appellant permission to appeal to the Upper Tribunal against the original decision.
6. The review decision was contained in a subsequent DBS letter dated 14 October 2014, following a “minded to bar” letter dated 24 July 2014. In its October 2014 “Review Findings Letter” the DBS again advised the Appellant “that it is appropriate to continue to include you in the Children’s Barred List”. The Upper Tribunal has in effect treated the Appellant’s appeal against the original decision as also an appeal against the review decision.
7. In her helpful written Response on behalf of the DBS, Ms Leventhal made suggestions as to how we should deal procedurally with the issue of the two decisions (pp.390-392 at paragraphs §33-§41). We agree with her analysis that the appeal against the original decision is now, in effect, redundant. This is because the important decision that today affects the Appellant’s continued inclusion on the Children’s Barred List is the review decision. We therefore concentrate our own analysis on the Appellant’s appeal against the DBS review decision.
Previous problems in the handling of the Appellant’s case
8. We must recognise at the outset that there have been procedural problems in the way that the Appellant’s case has been handled in at least two respects. The background is that following his acceptance of a police caution in June 1995 for the offence of indecent assault, the Appellant was first included on the Consultancy Service Index (in September 1995) and then on the Department for Education and Employment’s “List 99” (in February 1997). Because of that listing, and following a review in 2000, the Appellant’s name was transferred to the list held under the Protection of Children Act (PoCA) 1999.
9. The first problem arose when PoCA was itself replaced by the system under the 2006 Act. The Appellant’s name was included on the Children’s Barred List in 2010 because he had failed to respond to a series of letters from DBS in the spring and autumn of that same year. It is now accepted that the Appellant never received those letters. The Appellant independently made his own request for a review of his listing in 2011. This led to a further review and eventually the original decision letter in August 2013. The mix-up in 2010 and the subsequent delays were undoubtedly unfortunate, but they do not impact on the lawfulness or otherwise of the review decision now on appeal to us.
10. The second problem concerns the original decision itself. In short, as Judge Wikeley noted when giving permission to appeal, it became plain that the original decision was based on a number of matters on which the Appellant had not actually been given a proper opportunity to make representations, as was his right under the 2006 Act. These included two alleged incidents in 1982 and a 2004 conviction. As Judge Wikeley observed, DBS had reached a decision taking those matters into account but without asking the Appellant for his comments on them. That was plainly unfair, as DBS very properly recognised in its letter of 14 May 2014. This in turn led to the reconsideration process resulting in the subsequent review decision. Again, the problems with the process adopted for the original decision do not directly affect the legality or otherwise of the review decision now on appeal to us.
The law governing the scope of any appeal against a DBS listing decision
11. The relevant law is contained in the 2006 Act and is set out clearly in Ms Leventhal’s written Response at p.390 (paragraphs §28-§32). We also take into account the relevant Court of Appeal case law, such as R v Independent Safeguarding Authority (Royal College of Nursing intervening) [2012] EWCA Civ 977 and Disclosure and Barring Service v Harvey [2013] EWCA Civ 180. For present purposes there are three main points to note about the relevant provisions in the 2006 Act.
12. The first point is that an appeal can be made from a DBS decision to the Upper Tribunal but only on the ground that the DBS has “made a mistake” either “(a) on any point of law” or “(b) in any finding of fact which it has made and on which the decision mentioned in that subsection was based” (according to section 4(2) of the 2006 Act).
13. The second point is that, according to section 4(3) of the 2006 Act, “the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.” It follows that if the only issue is whether listing, or continued listing, is appropriate then this is a matter for the DBS and not for the Upper Tribunal.
14. The third point is that, according to section 4(5) of the 2006 Act, “unless the Tribunal finds that DBS has made a mistake of law or fact, it must confirm the decision of DBS.” However, if we conclude that the DBS has made such a mistake, then we may either direct DBS to remove the person from the list or remit the matter to DBS for a fresh decision (section 4(6)).
15. We are acutely conscious that the combined effect of these statutory provisions is to place some limits on the powers of the Upper Tribunal when considering an appeal against a DBS decision. A consequence is that the right of appeal now is therefore now more limited than it was before the 2006 Act.
16. Before the 2006 Act came into force, appeals against listing decisions were heard by the Care Standards Tribunal (the CST). Under the listing regime then in force, the CST carried out what lawyers call a “full merits review” when hearing an appeal. In other words, the CST started entirely afresh when reconsidering the facts and was entitled to form its own independent view of all the facts.
17. The Upper...
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