SA v Disclosure and Barring Service: [2026] UKUT 232 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Stout on 22 June 2026.
Read the full decision in .
Judicial Summary
The appellant, a former healthcare assistant, appeals against a decision of the Disclosure and Barring Service (“DBS”) to retain his name on the adults’ barred list following remittal of an earlier successful appeal. The case concerns two incidents of intimate care provided to vulnerable adult residents, in respect of which the first Upper Tribunal found that the appellant had no sexual intent but had acted in a manner that was “somewhat insensitive, or callous”, causing the service users to feel upset and uncomfortable.
The Upper Tribunal considers the proper approach to “second-time-round” appeals under section 4 of the Safeguarding Vulnerable Groups Act 2006 (SVGA 2006). It holds that where the Upper Tribunal has exercised its power under section 4(7)(a) of the SVGA 2006 to direct DBS to base its new decision on findings of fact made by the Tribunal, DBS is bound by those facts, but is not confined to those findings and may rely on additional facts. Further, the principles of issue estoppel, including the rule in Henderson v Henderson, apply to all the issues of fact and law determined by the first Upper Tribunal, or which could and should have been raised before the first Tribunal. Such issues cannot be (re-)litigated in the second appeal absent special circumstances.
In this decision, the Upper Tribunal finds that DBS materially erred in law and fact by departing from the binding findings of the first Tribunal and by making additional findings of fact that were unsupported by the evidence.
Although the errors rendered the decision unlawful, the Upper Tribunal is not satisfied that removal from the barred list is the only lawful outcome. The appeal is therefore allowed and the matter remitted to DBS for a new decision, which must be taken in accordance with the issues of fact and law determined by the Upper Tribunal in this decision. The Upper Tribunal further directs pursuant to section 4(7)(a) of the SVGA 2006 that DBS’s new decision must be based on the findings of fact made by both this Upper Tribunal and the first Upper Tribunal.