Court of Appeal confirms that DBS not bound by regulatory decisions

In the recent case of XYZ v Disclosure and Barring Service [2025] EWCA Civ 191, the Court of Appeal confirmed that when making a barring decision, the Disclosure and Barring Service (“DBS”) (and the Upper Tribunal if an appeal against that decision is made), is not bound by findings of fact made by a regulatory body, even if the findings relate to the same set of facts. This is primarily because the DBS and regulators have different functions, and so their analysis of the evidence affecting their decision may result in different findings.

The facts

An allegation was made to the police by Pupil A’s father in August 2019 that he had discovered that Pupil A and teacher XYZ were in a relationship. Pupil A had left the school at which XYZ taught after her GCSE exams that summer. The police investigated the allegations but took no further action as it appeared nothing incriminating was found and Pupil A refused to support the police investigation.

Following its own internal investigation after the allegations were made known to it by the local authority, the school dismissed XYZ in September 2019. The headteacher referred the matter to the DBS and the Teachers’ Regulation Authority (“TRA”).

In September 2020, the DBS decided that XYZ’s name be placed on the children’s barred list, which would prevent him from working with children. The Barring Decision was based on the DBS caseworker being satisfied on the information before them, on the balance of probabilities, that XYZ had formed a relationship with Pupil A, he had given her lifts in his car and he had kissed her on four occasions. XYZ appealed this decision to the Upper Tribunal.

Two weeks after the Barring Decision, the TRA notified XYZ that it had decided to refer allegations to a professional conduct panel that he was guilty of unacceptable professional conduct and/or conduct that may bring the teaching profession into disrepute by engaging in and/or developing an inappropriate relationship with Pupil A by:

a. Meeting up with and/or taking Pupil A on one or more occasions

i.  In your car
ii. In/to [the town] on or around 13 August 2019
iii. Outside of the School.

b. Instructing and/or inviting Pupil A to communicate with you via Snapchat, which did not retain copies of your messages.

c. Communicating with Pupil A on one or more occasions between December 2018 and September 2019 using Snapchat.

d. Kissing Pupil A on one or more occasion.

e. Cuddling Pupil A on one or more occasions.

It was also alleged that XYZ’s behaviour was of a sexual conduct and/or sexually motivated.

During the course of the disciplinary proceedings, XYZ admitted that he had twice given Pupil A a lift in his car. He explained both occasions were after Pupil A had left the school and he had bumped into her by chance. On one occasion Pupil A asked XYZ to drop her home and on the other as they were going in the same direction, XYZ offered. He denied that there was any sexual motivation but conceded that in hindsight it was inappropriate behaviour, although as she was no longer a pupil at the school, he thought there was nothing wrong with giving her a lift.

The TRA panel found the particulars of allegation (a) proved. They did not find the other allegations or sexual motivation proved. They held that whilst XYZ’s behaviour had breached the Teachers' Standards and demonstrated “exceedingly poor judgement”, it was not so serious as to constitute misconduct. The conduct would not have a negative impact on XYZ’s status as a teacher or damage the public’s perception. He was therefore not guilty of conduct that may bring the profession into disrepute and no further action was taken against him by the TRA panel.

The Upper Tribunal admitted the TRA’s decision and all the evidence before the panel into the appeal hearing against the Barring Decision. It was submitted on XYZ’s behalf that the findings of the TRA panel, which followed a contested hearing before an expert panel at which live evidence was given and the parties were legally represented, established that the Barring Decision was based on mistakes of fact and should be set aside.

The Upper Tribunal concluded that the findings of fact by the TRA panel were not binding on the DBS or itself. It held that it must give the findings of the TRA panel appropriate weight, but it must also give appropriate weight to the Barring Decision and all the other evidence before it and make its own assessment of all the evidence to decide whether the Barring Decision was based on a mistake of fact. It concluded the Barring Decision was not based on a mistake of fact.

XYZ appealed against the UT’s findings.

The Appeal

The grounds of appeal were as follows:

1. The Upper Tribunal reached a conclusion which was plainly wrong or alternatively failed to take into account material considerations such as the significant weight to be applied to the TRA decision which disproved the conclusions reached by the DBS;
2. The Upper Tribunal made a material misdirection of law on a material matter when it held that it was open to it to find that facts occurred after considering almost identical evidence to the same standard of proof when an earlier Tribunal considered that these facts did not occur;
3. The Upper Tribunal made a material misdirection of law by exceeding its jurisdiction and re-opening various findings of fact in the TRA decision;
4. The Upper Tribunal erred in law by misunderstanding the application of the res judicata principle and permitting the re-litigating of a cause of action which had already concluded.  The res judicata doctrine means “a matter judged” and prevents a party from re-litigating any case or issue that has already been litigated.

The Court of Appeal unanimously dismissed the appeal on all four grounds. It held that the Upper Tribunal was right to reject the submission that it was bound by the TRA fact-findings. The legislation (paragraph 16 of the Schedule 3 Safeguarding Vulnerable Groups Act 2006) does not implicitly bind the DBS to accept the fact-findings of the TRA panel even if the TRA decision is first in time. Further, Parliament has deliberately left it open to the two bodies to reach different conclusions even if the evidence and the factual issues are the same. The fact they have reached different conclusions may call into question the soundness of one of the decisions, although not necessarily so.

As the Court of Appeal said:

“It would undermine public confidence in the administration of justice if the Upper Tribunal were to abrogate its role by deferring completely to fact-findings made by the TRA (or even the High Court on an appeal from the TRA), though of course it was obliged to consider and evaluate those findings. Indeed, it would be surprising if matters were otherwise.”

The Court of Appeal also distinguished between the functions of the DBS and the TRA. The DBS is concerned with an evaluation of whether the person poses a present and future risk to children. On the other hand, the TRA is concerned with a person’s professional conduct and fitness to be a teacher.

The Upper Tribunal was also not required to place “significant weight” on the TRA decision. The weight to be accorded any evidence before it was a matter for the tribunal. The only way this could be challenged would be on the grounds of irrationality, which was not suggested here.

Further, the principle of res judicata did not apply in this case. That applies to proceedings where there is the existence of a legal right between the same two parties. This was not the situation here; in one situation the TRA was a party and in another the DBS was a party. The functions of the DBS and TRA are different. The TRA proceedings could never be determinative of whether a barring decision should be made, or even of the question of whether the DBS was entitled to exercise its power to make such an order on the facts.

The Court of Appeal concluded that the Upper Tribunal was correct to conclude that it was not bound by the fact-findings of the TRA panel. Nor was it bound to afford any greater weight to those findings than it did when deciding if the Barring Decision was based on mistakes of fact.

Comment

Although the outcome of both proceedings could have been the same for the teacher, it is clear that the functions and purposes of the TRA and the DBS are very different. TRA proceedings look back at the teacher’s behaviour and consider whether as a result of the facts found proved, they are fit to be a teacher and/or have brought the profession into disrepute. If so, the Secretary of State must determine whether to make a prohibition order. The DBS, on the other hand, is forward-looking and considers the risks that person may pose to children at present or in the future. If the risks deem it appropriate, the person should be included on the children’s barred list. As the High Court summarised in R (SXM) v DBS [2020] EWHC 624 (Admin):

“…it is clear that the function of the DBS is a protective forward-looking function, intended to prevent the risk of harm to children by excluding persons from involvement in regulated activities. The DBS is not performing a prosecutorial or adjudicatory role and it is not engaged in considering complaints from individuals and imposing punishments. It may, as part of its task, have to form a view as to whether a person has engaged in conduct likely to endanger a child or sexually inappropriate conduct, or the case may involve conduct posing a risk of harm…it is not there to receive and adjudicate upon complaints from individuals.”

As a result, the findings of the TRA are not binding on the DBS (and vice versa). Each tribunal has to make an assessment on the evidence before it, and that may result in different factual conclusions being reached (and therefore different outcomes).