MS v Decision and Barring Service (V)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Church |
| Neutral Citation | [2022] UKUT 184 (AAC) |
| Subject Matter | Safeguarding vulnerable groups - Children’s barred list,Church,TH |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Published date | 01 August 2022 |
MS v DBS
[2022] UKUT 184 (AAC)
1
IN THE UPPER TRIBUNAL Appeal No. UA-2021-002013-V
ADMINISTRATIVE APPEALS CHAMBER (previously V/127/2021)
Between: MS Appellant
- v –
DBS Respondent
Before: Upper Tribunal Judge Church, and Members Bainbridge and Cairns
Decided following a remote oral hearing by CVP held on 05 May 2022
At 10:30.
Representation:
Appellant: In person
Respondent: Ms Carine Patry QC of counsel (instructed by DBS legal)
DECISION
On appeal from the Disclosure and Barring Service (“DBS”)
DBS Reference: 00898655289
Final Decision Letter: 21 October 2020
The decision of the Upper Tribunal is to refuse the appeal. The decision of DBS
made on 21 October 2020 to include the Appellant in the Children’s Barred List was
not made in mistake of law and was not based on any mistake of fact. The decision is
confirmed.
REASONS FOR DECISION
What this appeal is about
1. This appeal is about MS, who at the relevant time was a musician and band
manager at Bedford Town Band. It is accepted by MS that he developed a close and
intense friendship with a fellow band member (to whom we will refer as “AB” to protect
MS v DBS
[2022] UKUT 184 (AAC)
Case no: UA-2021-002013-V
2
her identity) which involved meeting up in person as well as exchanging over ten
thousand short text, email and WhatsApp messages. The messages exchanged
between MS and AB, while short, were very extensive. It was accepted by DBS that
the messages were not overtly sexual in nature, but some of them were very intimate,
covering topics such as AB’s periods. There was a distinct intensity to the exchanges.
At the relevant time AB was 15 years old and MS was 37 years old.
2. In September 2018 MS was referred to the Respondent, which carried out an
investigation. The outcome of the process was that the Respondent decided not to
place MS on either barred list. This was confirmed to MS in a letter dated 23 November
2018 (the “no barring action letter”), which stated:
“… having considered the full circumstances we have decided that it is not
appropriate to include you in the Children’s Barred List or the Adults’ Barred
List.
… We will keep any relevant information we hold on file in accordance with our
Data Retention Policy and may take it into account if we receive further
information in the future.”
3. In September 2019 DBS carried out a “special exercise” to determine whether
open cases could be better prioritised to expedite DBS’s decision-making processes.
This exercise resulted in the discovery that DBS had received a multi-agency
submission on 21 January 2019. On 11 September 2019 MS was informed of this
development, and on 21 May 20120 he was sent a “minded to bar” letter informing him
that DBS thought it might be appropriate to include him on the children’s barred list.
He was invited to make written representations, which he duly did.
4. DBS re-examined the case for barring MS, examining the new evidence but also
re-examining afresh the evidence that it had considered when it considered the initial
referral a year earlier. That process led ultimately to a decision to place MS’s name on
the Children’s Barred List (the “Barring Decision”), which was communicated to MS by
a “final decision letter” dated 21 October 2020.
5. MS disagreed with the Barring Decision and applied to the Upper Tribunal for
permission to appeal it. Permission was granted by Upper Tribunal Judge Church on
21 October 2020 on limited grounds.
6. While the threshold for a grant of permission to appeal to the Upper Tribunal is
“arguability”, the hurdle at the substantive stage is considerably higher: for an appeal
against the Barring Decision to succeed we must be satisfied that the Barring Decision
did involve the making of an error of law which was material, or that the decision was
based on a material mistake of fact.
The oral hearing of the appeal
7. The oral hearing of this appeal was conducted remotely via CVP on 05 May 2022.
8. The Appellant gave live evidence and made arguments in support of his appeal.
He was cross-examined by Ms Patry QC representing DBS.
9. No other witnesses were called to give evidence.
10. Ms Patry QC expanded on the arguments she had set out in her skeleton
argument. We are grateful both to the Appellant and to Ms Patry for their clear and
helpful submissions and for the respectful and measured way they conducted their
respective cases.
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