DL v Disclosure and Barring Service
| Jurisdiction | UK Non-devolved |
| Judge | Judge Brunner |
| Neutral Citation | [2024] UKUT 247 (AAC) |
| Published date | 03 September 2024 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
1
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Appeal No. UA-2020-000391-V
[2024] UKUT 247 (AAC)
On appeal from a decision of the Disclosure and Barring Service
Between:
DL
Appellant
and
The Disclosure and Barring Service
Respondent
Before: Upper Tribunal Judge Brunner KC, John Hutchinson and Suzanna
Jacoby
Decided on 12 August 2024 following a hearing on the papers on 19 July 2024
ANONYMITY ORDER
Pursuant to rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules
2008, I prohibit the disclosure or publication of—
(a) the appellant’s name
(b) any matter likely to lead members of the public to identify that
name.
Any breach of the order at paragraph 4 above is liable to be treated as a
contempt of court and punished accordingly (see section 25 of the
Tribunals, Courts and Enforcement Act 2007).
DECISION
1. The appeal is allowed.
2. DBS made mistakes in the findings of fact on which its decision was based. The
Upper Tribunal, pursuant to section 4(6)(a) of Safeguarding Vulnerable Groups Act
2006 (‘SVGA’), directs DBS to remove the appellant from the adults’ barred list.
2 DL v Disclosure and Barring Service
UA-2020-000391-V
[2024] UKUT 247 (AAC)
REASONS FOR DECISION
A. The decision to include DL in the adults’ barred list
1. On 12 August 2020, DBS included DL in the adults’ barred list on the basis of
this finding of fact: ‘On an unspecified date prior to the 23rd September 2019, you
borrowed money from JG (a service user in your care), failed to repay £20 and made
a further request for a loan of £20.’
2. The letter notifying MSB of the decision stated that the decision had been made
‘using our barring powers as defined in Schedule 3, paragraph 9 SVGA’.
B. The appeal to the Upper Tribunal
3. DL lodged an appeal, and submitted helpful representations from Citizens
Advice dated 25 February 2021 which pointed out inconsistencies in the evidence
relied on by DBS, and other matters. Upper Tribunal Judge Poynter gave permission
to appeal to the Upper Tribunal on 12 October 2021. Since then it has taken far too
long for this matter to reach a final hearing. There have been various reasons for the
delay but it is far from satisfactory for both parties that it has taken years to conclude
the matter.
4. In giving leave Judge Poynter wrote:
‘I acknowledge that those advising the appellant wish the Upper Tribunal to consider
the issue of whether the respondent’s decision was proportionate.
However, although I do not limit the grant of permission, I judge that the principal
issue is simply who is telling the truth: is it the appellant or is it the vulnerable adult
(‘VA’) whose identity I have ordered not to be disclosed?
I have given permission to appeal because, in my judgment, there is a realistic
prospect that the appellant’s version of events will be believed following the final
hearing of the appeal.
I will not be a member of the panel that makes the final decision and it therefore
would not be right to give detailed reasons as to why I have reached that conclusion.
However, one factor is that there are evidential inconsistencies on both sides.
It has also been a matter of concern to me that, although the appellant’s evidence
has been (and will be again) given first-hand and tested under cross-examination, the
same cannot be said of the evidence against her. She has not had an opportunity to
confront those accusing her or to test their evidence.
The mere fact that VA had capacity at the relevant time does not necessarily mean
that her evidence is credible. Every working day people whose capacity is not in
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