LM v Disclosure and Barring Service

The decision of the Upper Tribunal is to allow the appeal. The DBS made a mistake of fact in finding the allegation against the appellant proved. The appellant should be removed from the Children’s barred list. REASONS FOR DECISION Factual background

1. The appellant was employed as a supply teacher at the school on 17 March 2022. It is alleged and accepted by the DBS that she grabbed a child by the arm aggressively told her to stop talking and slapped her on the cheek. The appellant denies hitting the child at all. We refer to this child as Child A.

2. The allegation was first made that afternoon by a friend of the child allegedly slapped. We refer to her as Child B. Child B told her mother immediately on leaving school in the playground where her mother was waiting. Child B said to her mother that her friend had been slapped by the teacher. Child B’s mother told her daughter that the teacher should go to prison. Child B’s mother later that evening sent a text to Child A’s mother asking whether anything had happened to her daughter. Child A’s mother’s initial response on What’s App was that her daughter had said the teacher tapped her on the shoulder and told her to shut up. This text was deleted in the evidence given to the police and this later came up at the trial of the appellant at the magistrates’ court. We have no transcript of the trial and so we have gleaned some information from the appellant’s solicitors note.

3. A meeting was held with the Head Teacher, the class teacher and Child A and her mother the day after the allegation, on 18 March 2022. In the notes of the meeting the Child A said that the teacher had grabbed her and tapped her on her left cheek. The word “tapped” accords with the first report to her mother the day before. After using the word “tapped” the Head Teacher said, “so she tapped you on the cheek?” Child A then changed the words to slapped.

4. In this meeting it is clear that other parents knew of the allegation already and had contacted Child A’s mother. It was agreed at the meeting that the class teacher would speak to the class to reassure them the incident was being dealt with.

5. In Child A’s statement to the police dated 6 April 2022, nearly three weeks after the allegation, she said she went to the office. In her statement she says “I went down to the office but I didn’t say anything I just said my cheeks hurting, and they didn’t ask why.” No staff at reception could recall this happening. She also reported another teacher had seen this but she did not know her name. In the evidence before us there was no other teacher who witnessed the assault. When asked how long the appellant grabbed her arm she said “maybe 5 minutes”.

6. The alleged victim Child A said that the appellant was standing when she hit her. Child B’s statement to the police was taken on 13 April 2022 which was nearly 4 weeks after the allegation. Child B said the appellant was on her hands and knees crawling on the floor. After she had slapped Child A she just kept on helping the other child with her maths. She also reports that on 18 March 2022 the class teacher said that “he told assembly that he wasn’t gonna say what happened, but a teacher did something to [Child A.]”

7. The appellant attended voluntary interview 14 April 2022. The appellant told the police she had taken a hairband out of the child’s hair who first made the allegation. She did tell Child A off as she was talking. She had made Child A and three others walk round the track when they went to the playground because of this before going to play.

8. The appellant said in the statement that she was told about the allegation the next day by the class teacher. She was told that the allegation was she grabbed the child’s arm and poked her in the cheek. She was a supply teacher and was only with the children for two hours. She had been teaching since 1978. She was told three other children corroborated the account and she said it did not happen. She has maintained this evidence throughout.

9. The mother of the Child A made a witness statement which is undated saying that her daughter’s face was slightly red on the left-hand side when she got home about 4pm. She initially thought it was from Child A running. She said Child A did not say anything when she first got home. After receiving the message from Child B’s mother saying that she had been slapped on the cheek she went to talk to her daughter. She took screen shots of the messages (but deleted the one which said her child had said the appellant had tapped her on cheek). In the statement she says that after receiving the message from Child B’s mother she talked to her daughter who burst into tears and said the appellant had slapped her around the face.

10. The class teacher’s witness statement to the police on 27 April 2022 about 5 weeks after the allegations. He met with Child A, her mother and the head teacher the next day. The child’s mother spoke first for about 10 minutes asking Child A to explain at times. He remembered that the Child A said she was hit in the cheek.

11. At the meeting he agreed to reassure the children in the class he would be teaching the children all day to them and if anyone saw what had happened to come and tell him. No one did come to him. When taking the children for a walk around the fields he noticed three children speaking to each other as a group they told him “She wasn’t a nice lady and that she was nasty to [Child A]”. These children were Child B and two other friends, Child C and Child D.

12. Child A told him there were 3 children who knew what happened and 4 who may have.

13. On 23 March 2022 he was asked to get mini statements from the children who were mentioned by Child A as people who would or may know what had happened. One child said she only knew what her mother had told her from the group chat. One said she didn’t see anything but she heard Child A being told off for wearing a red nose. Two children said they saw the appellant slap Child A (one of whom was Child B). One child said she heard a slapping sound and saw Child A with a tear in her eye and a red cheek. She said she asked Child A why her cheek was read and was told that the appellant had slapped her. Another child said they heard the appellant telling Child A off and two said they did not see or hear anything.

14. The DBS made this decision before the case was heard in Brighton Magistrates Court on 10 May 2027. The appellant solicitor notes the Judge said “she could not be sure given that there was a teacher of great experience and impeccable record, but equally children who seem, particularly in the case of Child B, an unprompted complainant. Legal framework

15. The relevant legislation is in the Safeguarding Vulnerable Groups Act 2006 . Inclusion in the children’s barred list is governed by section 2 of that Act and Part 1 of Schedule 3 to the Act . The basis for the decision in this case was relevant conduct, so paragraphs 3, 4, 5, 9 and 10 of Schedule 3 are relevant.

16. Section 2 of the Act requires the DBS to maintain the children’s barred list. By virtue of section 2 , Schedule 3 to the Act applies for the purpose of determining whether an individual is included in the list. Regulated activity is determined in accordance with section 5 of, and Schedule 4 to, the 2006 Act . The appellant was clearly engaged in regulated activity when she was teaching.

17. Schedule 3 to the Act provides for inclusion by reference to “relevant conduct” by the person included in the list. The appellant must have been engaged in relevant conduct and regulated activity in the past, present or future. Relevant conduct is described in the Act as conduct which endangers or is likely to endanger a child by harming the child or putting the child at risk of harm. If the allegation were proved and there is no mistake of fact the appellant was clearly engaged in relevant conduct.

18. Section 4 of the Act governs appeals. It provides that an appeal may be made to the Upper Tribunal against a DBS decision only on the grounds that the DBS has made a mistake on any point of law or in any finding of fact which the DBS has made and on which the decision was based. Subsection (3) of section 4 provides that, for the purposes of subsection 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.

19. In this case both parties agreed that we were considering mistake of fact. The appellant says the allegation did not happen. Permission was granted on the basis of mistake of fact.

20. Counsel for the DBS referred us to PF v DBS [2020] UKUT 256 (AAC) which gave guidance on the Upper Tribunal’s mistake of fact jurisdiction. That guidance was affirmed in Kihembo v DBS [2023] EWCA Civ 1547 , §26. In referring to PF, the Presidential Panel stated: “51. Drawing the various strands together, we conclude as follows: a) In those narrow but well-established circumstances in which an error of fact may give rise to an error of law, the tribunal has jurisdiction to interfere with a decision of the DBS under section 4(2) (a). b) In relation to factual mistakes, the tribunal may only interfere with the DBS decision if the decision was based on the mistaken finding of fact. This means that the mistake of fact must be material to the decision: it must have made a material contribution to the overall decision. c) In determining whether the DBS has made a mistake of fact, the tribunal will consider all the evidence before it and is not confined to the evidence before the decision-maker. The tribunal may hear oral evidence for this purpose. d) The tribunal has the power to consider all factual matters other than those relating only to whether or not it is appropriate for an individual to be included in a barred list, which is a matter for the DBS ( section 4(3) ). e) In reaching its own factual findings, the tribunal is able to make findings based directly on the evidence and to draw inferences from the evidence before it. f) The tribunal will not defer to the DBS in factual matters but will give appropriate weight to the DBS’s factual findings in matters that engage its expertise. Matters of specialist judgment relating to the risk to the public which an appellant may pose are likely to engage the DBS’s expertise and will therefore in general be accorded weight. g) The starting point for the tribunal’s consideration of factual matters is the DBS decision in the sense that an appellant must demonstrate a mistake of law or fact. However, given that the tribunal may consider factual matters for itself, the starting point may not determine the outcome of the appeal. The starting point is likely to make no practical difference in those cases in which the tribunal receives evidence that was not before the decision-maker.”

21. This case is about whether the appellant did assault Child A. As confirmed in PF above, if the Upper Tribunal finds that there is a mistake of fact in this case and it is material, we can take into account all evidence before us including that evidence that was not in front of the decision maker and we can make findings directly from the evidence. The grounds of appeal and the parties’ submissions

22. The DBS made their final decision to bar the appellant on 03 May 2023. The relevant part of the final decision letter is as follows;

23. “On 17 March 2022 whilst working as a Supply Teacher, covering a class teacher at (P) Primary School, you grabbed the arm of a 9 year old child, …, told her aggressively to stop talking and slapped her on the cheek.”

24. Permission to appeal was granted on 19 February 2024 on the grounds of mistake of fact. This grant of permission was based on the appellant’s acquittal in the Magistrates Court which, although not determinative, was a factor to consider and the direct clash of evidence between the appellant and the facts as accepted by the DBS. The appellant’s argument was that the children’s evidence was not reliable, they were not questioned directly after the alleged incident occurred and a parent who gave evidence at the trial had deleted a text which was evidence that that the appellant had not hit the child.

25. The oral hearing of this case was on 21 June 2024 and the appellant was representing herself. Although the Tribunal took substantial evidence at that hearing we adjourned by consent to allow the appellant to submit further evidence. She was relying on evidence such as the deleted text message before the magistrate’s court. She said she could get further evidence from her solicitor and so we adjourned to give her that opportunity.

26. The appellant did lodge further evidence and the DBS responded to it. We convened to deliberate on 17 April 2025.

27. Essentially the appellant argues she did not hit Child A and the respondent argues that on the balance of probabilities the evidence says she did. Analysis

28. The appellant relies on the fact that the first text message of Child A’s mother was that Child A said that she tapped her on the shoulder. That message was deleted from evidence. We find this is significant because it does cast doubt on the evidence of Child A. Mr Tabori says that this does not take the appellant further as there are three messages which refer to a slap.

29. However, the appellant also relies on the fact that the next morning Child A said tap first and then said slap. This does not affect the evidence from the other children, but it does affect the evidence of Child A and along with the deletion of that text it is significant.

30. We accept the evidence of the appellant that there was significant talk and messaging between the parents about the allegation which would have been overheard by the children. The evidence before us showed that Child B’s mother specifically spoke to her daughter and told her that the teacher should go to prison.

31. In terms of the deletion of the text Mr Tabori says it is impossible to know what weight was given at the criminal court but one could see why such a deletion of a text in a criminal context might establish reasonable doubt. We agree. However, we find that the deletion of the text, the significant parental talk both to and around the children along with the first report of Child A about a tap and not a slap does cast doubt on the accuracy of the evidence given by Child A, particularly in light of the consistent denial of the appellant who has a long and impeccable teaching record.

32. The appellant also relies on the contamination of the witness statements. We accept that at the meeting the next day with the Head Teacher, Child A’s mother spoke for about 10 minutes before Child A was asked to speak. She had heard everything her mother had said. Even then Child A still used the word tap when she first described what happened to the Head Teacher.

33. The appellant also relies on the fact that there was significant chatter on messaging apps, to the children and around the children. It is inevitable that this chatter would have influenced them.

34. We looked specifically at the evidence from each child as the DBS rely on the consistency of that evidence. One child said she only knew what her mother had told her from the group chat. One said she did not see anything, but she heard Child A being told off for wearing a red nose. Two children said they saw the appellant slap Child A (one of whom was Child B). One child said she heard a slapping sound and saw Child A with a tear in her eye and a red cheek. She said she asked Child A why her cheek was red and was told that the appellant had slapped her. Another child said they heard the appellant telling Child A off and two said they did not see or hear anything.

35. There is great disparity in this evidence. The child who said that they heard Child A being told off for wearing a red nose, two who did not see or hear anything and another saying they heard Child A being told off against two who said they saw the slap and another who saw a red cheek. This is not consistent evidence particularly considering the chatter from parents, teachers, and children around the allegation.

36. We also considered when the witness statements from Child A and B were taken by the police. Both were taken a significant time after the slap is alleged to have occurred. During this time, we have already accepted there would have been significant gossip and chatter around the allegation. It was clear that by the evening of the allegation it had already started. The children would have been influenced by this and would have heard much of this from their parents and others.

37. There are two further pieces of evidence from Child A that we find significant, and which cast doubt on the accuracy of her statement. She said that a teacher was passing and saw the slap. We have no evidence that this was the case and if a teacher had seen this slap, they would have reacted in some way by intervening or at the very least reporting it. Child A said she went to the office to say she had a sore cheek but the staff in the office could not recollect this happening. There would be clear record keeping of this type of injury and the school had none.

38. The last persuasive factor for us was that much of the evidence produced by the appellant after the adjournment was not before the DBS when they made the decision. Based on this evidence, the inconsistency in the children’s evidence, the oral evidence of the appellant who had taught for many years without any allegations we are not satisfied on the balance of probabilities that this act was proved to have happened.

39. We heard evidence from the appellant who was consistent and credible. The DBS did not bring any witnesses to the hearing. We can and have come to a different decision to the DBS on the facts in light of the evidence before us.

40. We therefore allow the appeal, and t he appellant should be removed from the Children’s barred list. Sarah Johnston sitting as a Judge of the Upper Tribunal Authorised by the Judge for issue on 20 June 2025