Ruth Peters, specialist Disclosure & Service lawyer at Olliers Solicitors, describes the circumstances when it may be possible to appeal inclusion in the DBS Barred List.
What is the DBS Barred List?
There are effectively two Disclosure & Barring Service barred lists. One relates to individuals barred from working with children and one relates to those barred from working with vulnerable adults. Some individuals appear on both lists. Those on the list are barred from working in ‘regulated activity’ and it is a criminal offence for those included in the barred list to work in regulated activity. More information on regulated activity can be found here and here.
I didn’t make representations when I received the ‘minded to bar’ letter? Can I do this now?
Generally when the DBS are considering inclusion on the barred list they will send a ‘minded to bar’ letter or an ‘intention to include in barred list’ letter. This will detail the allegations against the individual and often contains an appendix of supporting evidence. It will invite an individual to provide representations as to why they should not be barred. If representations have not been provided at this stage and an individual is then included on the Barred List it may be possible to provide representations subsequently. Examples of situations when this may be allowed include occasions when an individual did not receive the original letter (perhaps due to changing address) or was in ill health at the time.
Representations should include information about the individual themselves and their personal circumstances and employment circumstances. It would generally be appropriate to include information in relate to the allegations leading to the referral and any supporting evidence. Often it is advised to provide character references and any medical reports that may have been obtained. If individuals have sought professional assistance e.g. counselling subsequent to any conduct then it would be appropriate to provide confirmation of the same. Olliers can assist in the preparation of representations to the Disclosure & Barring Service.
Is it possible for me to appeal inclusion on the Barred List?
An application for permission to appeal is lodged to the ‘Upper Tribunal’ (Administrative Appeals Chamber) which is one of the four chambers of the Upper Tribunal. Such body makes decisions in legal disputes and responsible for dealing with appeals against decisions made by certain lower tribunals and organisations. Initially permission for appeal needs to be applied for and only if permission is granted will an actual appeal be heard. There is no automatic right of appeal and appeals can only be lodged with the Upper Tribunal on the grounds that the DBS has made a mistake:
- on a point of law; or
- on a finding of fact made by the DBS on which the decision to bar was based.
For the purposes of an appeal to the Upper Tribunal, 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.
How can Olliers Solicitors help me?
Olliers Solicitors are specialist DBS lawyers with considerable experience of preparing representations to the DBS and thereafter advising on appeal and, if appropriate, lodging an application for permission to appeal to to the Upper Tribunal. Once an appeal has been lodged, the DBS will ‘review’ their initial decision. In two cases within the last month that we have been involved in, the DBS have ‘reviewed’ their original decision to bar an individual upon receipt of our application for permission to appeal. They have subsequently decided it was no longer appropriate to include such individuals on the barred list and removed them.
We can advise on whether it is appropriate to consider appealing and thereafter draft grounds for submission. We can then represent at hearings for permission to appeal and the actual appeal hearing itself.
Olliers Solicitors do not undertake such work on a legally aided basis and are only able to be instructed on a privately funded basis.
Our Disclosure & Barring Service team
Olliers have considerable experience of dealing with DBS Barring cases. If you require any assistance in relation to the DBS Barred List do not hesitate to contact us for an initial confidential discussion. We can advise how we may be able to assist you and give you a quotation for our services.