JO v Disclosure and Barring Service
| Jurisdiction | UK Non-devolved |
| Judge | Judge Jones |
| Neutral Citation | [2023] UKUT 308 (AAC) |
| Published date | 12 January 2024 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
JO v Disclosure and Barring Service
[2023] UKUT 308 (AAC)
IN THE UPPER TRIBUNAL Appeal No. UA-2021-000790-V
ADMINISTRATIVE APPEALS CHAMBER
ON APPEAL FROM:
Appellant: JO
Respondent: Disclosure and Barring Service
DBS Ref No: DBS6191
Customer ref: 00941820405
DBS ID Number: P00031YQFPP
Between: JO Appellant
- v –
DISCLOSURE AND BARRING SERVICE Respondent
Before: Upper Tribunal Judge Jones
Tribunal Member Mr B Cairns
Tribunal Member MS J Heggie
Hearing date: 11 May 2023
Decision date: 12 July 2023
Representation:
Appellant: Did not appear and was not represented
Respondent: Mr Ashley Serr, Counsel instructed on behalf of the DBS
DECISION
The decision of the Upper Tribunal is to allow the appeal in part.
The decision of the Disclosure and Barring Service to include the Appellant’s
name in the Adults’ Barred List taken on 29 October 2021 did not involve a
mistake on a point of law but it did involve material mistakes in findings of fact.
However, some of the findings of relevant conduct did not contain mistakes of
JO v Disclosure and Barring Service
[2023] UKUT 308 (AAC)
UA-2021-000790-V
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fact and are confirmed. The case is remitted to the DBS to consider afresh
whether it is appropriate and proportionate to bar the Appellant in light of the
findings of relevant conduct which have been confirmed.
The Upper Tribunal further directs that there is to be no publication of any matter
or disclosure of any documents likely to lead members of the public directly or
indirectly to identify the Appellant or any person who has been involved in the
circumstances giving rise to this appeal.
This decision and direction are given under section 4(6) of the Safeguarding
Vulnerable Groups Act 2006 and rule 14 of the Tribunal Procedure (Upper
Tribunal) Rules 2008.
Introduction
1. The Appellant appeals the decision of 29 October 2021 of the Respondent (the
Disclosure and Barring Service or ‘DBS’) to include her name in the Adults’ Barred
List (“ABL”) pursuant to paragraph 9 of Schedule 3 to the Safeguarding Vulnerable
Groups Act 2006 (“the Act”).
2. Permission to appeal was granted by the Upper Tribunal Judge on the papers on
16 June 2022 in respect of all grounds raised by the Appellant in her notice of
appeal.
Proceeding in absence
3. We held an oral hearing of the appeal in Field House, London on 11 May 2023.
The Appellant did not attend and was not represented. The Respondent DBS was
represented by Mr Serr of counsel. We are grateful to him for his submissions.
4. We were satisfied that the hearing should proceed in the Appellant’s absence for
the purposes of Rule 38. She had been notified of the time, date and location of
the hearing in writing and was clearly aware of it.
5. The Appellant had indicated on 9 May 2023 (within the 14 day time period set in
the Tribunal’s Unless Order / directions of April 2023) that she did not intend to
attend the hearing because she would be at work. She did not apply for an
adjournment or postponement of the hearing or for the case to be heard on another
occasion.
6. On 10 May 2023, the day before the hearing, the Tribunal issued directions in these
terms:
1. The hearing of the Appellant’s appeal is to proceed tomorrow (on 11 May 2023 at 10.30am) as
currently listed.
2. The Appellant is urged by the Tribunal to attend the hearing even though she has indicated she
intends to be at work.
JO v Disclosure and Barring Service
[2023] UKUT 308 (AAC)
UA-2021-000790-V
3
3. She should not worry about attending the hearing alone or that she will be unrepresented (not
have a lawyer or other representative at the hearing with her). The Tribunal is used to hearing
from unrepresented Appellants and assisting them in putting their case. If the Appellant attends
it will enable her to explain her grounds of appeal more fully to the Tribunal (The Tribunal will
be able to give her help as appropriate – for example the panel can ask questions of the DBS
that she would like to be asked and help the Appellant give her evidence or, if she prefers,
simply hear her arguments). If she attends the hearing tomorrow, it will assist the Tribunal in
understanding the Appellant’s case as fully as possible and determine her appeal in a manner
that is just and fair.
4. The Appellant should understand that if she does not attend the hearing tomorrow, then the
Tribunal may proceed to hear the case in her absence if it is satisfied it is in the interests of
justice to do so. If it proceeds without the Appellant tomorrow, the Tribunal may still ask
questions of the DBS, test their evidence and reasoning, and consider everything that the
Appellant has written. However, it will not have the benefit of having heard from her in-
person. In all circumstances, the Tribunal will have to weigh up all the evidence, both oral and
written, that it hears and make relevant findings on the grounds of appeal.
Further Direction
5. If the Appellant would prefer to attend or participate in the hearing by internet video software
(CVP) or by telephone she should email the Tribunal by 3.30pm today (10 May 2023) and it will
inform the parties by 4.30pm of the form the hearing is to take.
7. The Appellant did not respond to these directions. Further, the clerk to the Tribunal
telephoned the Appellant on the morning of the hearing but was not able to contact
her.
8. The Tribunal was satisfied it was just and fair to proceed with the hearing in the
Appellant’s absence – in accordance with the overriding objective and in the
interests of justice. It was clear that the Applicant did not seek an adjournment of
the hearing so that there was no purpose in holding any further hearing as it would
not secure her attendance. The Tribunal had before it all the relevant submissions,
correspondence and representations made by the Appellant to the DBS and to the
Tribunal in respect of the appeal and took these into account on her behalf when
deciding the appeal.
Rule 14 order - Anonymity
9. At the outset of the hearing we made an order that there was to be no publication
of any matter likely to lead members of the public directly or indirectly to identify
the Appellant or any person who had been involved in the circumstances giving
rise to this appeal (witnesses or complainants) pursuant to rule 14(1)(b) of the
Tribunal Procedure (Upper Tribunal) Rules 2008. We were satisfied that the
Appellant, should not be identified, directly by name or indirectly, in this decision
but referred to as ‘JO’ (or ‘the Appellant).
10. We also made an order under rule 14(1)(a) that no documents or information
should be disclosed in relation to these proceedings that would tend to identify the
Appellant or any person who had been involved in the circumstances giving rise to
this appeal. Any documents sought to be disclosed would need to be redacted for
identifying information.
11. We made a further order under rule 14(1)(b) and (2) prohibiting the publication or
disclosure of any information or document which may lead members of the public
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