Disclosure and Barring Service entitled to come to different conclusion than Teachers Regulation Agency, Court of Appeal rules

The Court of Appeal has unanimously dismissed a former teacher’s appeal against a finding by the Disclosure and Barring Service (DBS) that he had developed an “inappropriate relationship” with a pupil - and therefore would be precluded from being a teacher - despite a separate TRA disciplinary panel finding he was not guilty of professional misconduct.

In XYZ (Appellant) v DISCLOSURE AND BARRING SERVICE (Respondent) [2025] EWCA Civ 1, Lady Justice Andrews concluded that the Teachers’ Regulation Authority (TRA) proceedings could “never be determinative” of whether the statutory right to make a barring decision existed, “or even of the question whether the DBS was entitled to exercise its right to do so on the facts.”

In August 2019, an allegation was made that the teacher, “XYZ”, had formed an inappropriate relationship with a 16-year-old girl, Pupil A, who had left the school at which he taught after sitting her GCSE exams.

Allegations were made that he sent her messages on snapchat, gave her lifts in his car and kissed her on four occasions.

The allegations were investigated by the police, but the teacher was neither arrested nor charged with any offence. They were also investigated by the school concerned. The head teacher dismissed XYZ and referred the allegations to the DBS and the professional regulator, the TRA.

The DBS was satisfied on the evidence that all the allegations were true, and that XYZ’s behaviour was sexually motivated. It decided to enter his name on the Children’s Barred List, which precludes him, among other things, from being a teacher.

XYZ appealed to the Upper Tribunal on the basis that the DBS decision was based on “material mistakes of fact”.

In the meantime, a TRA disciplinary panel found that by his own admission, XYZ had acted “inappropriately” by giving Pupil A lifts in his car on two occasions, but that this behaviour was “not sexually motivated”.

The panel held that although the teacher’s behaviour displayed poor judgement, he was not guilty of professional misconduct or bringing the profession into disrepute.

The Upper Tribunal (UT) admitted the TRA’s decision and all the material that was produced for the hearing before the TRA in evidence on the appeal against the barring decision, which was heard in person in November 2023.

It was submitted to the UT 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 at which the parties were legally represented, established that the barring decision was “based on mistakes of fact and should be set aside”.

The UT identified the legal issues it had to address including the following:

i) What is the significance of the TRA Decision? In particular, are the findings of fact made by the TRA Panel binding on the DBS, or indeed on the Upper Tribunal?

ii) Was the barring decision based upon a mistake of fact? In particular …

Was the DBS mistaken in its findings that XYZ holds an exploitative attitude, formed a personal relationship with Pupil A for his own gratification, and holds a significant sexual interest in teenage girls, having engaged in sexual activity with a 16 year old pupil by kissing her on four occasions?

The Upper Tribunal held that neither it nor the DBS were bound by the fact-findings of the TRA panel and, after evaluating the evidence before it (including oral evidence given by XYZ) dismissed his appeal on the basis that the DBS was not mistaken.

XYZ appealed to the Court of Appeal on four grounds:

• Ground 1: The UT 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];
• Ground 2: The UT made a material misdirection of law on a material matter when it held that it was open to it to find that facts, particularly those at [142] to [143] of its decision, occurred after considering almost identical evidence to the same standard of proof when an earlier Tribunal considered that these facts did not occur.
• Ground 3: The UT made a material misdirection of law by exceeding its jurisdiction and re-opening various findings of fact in the TRA decision.
• Ground 4: The UT erred in law by misunderstanding the application of the res judicata principle and permitting the relitigating of a cause of action which had already concluded.

Considering the case, Lady Justice Andrews said: “It is easy to understand why XYZ should feel aggrieved that the UT found that he had done the things of which he had been expressly exonerated by the TRA panel, when both tribunals were considering essentially the same evidence, and applying the same standard of proof.

“The sense of grievance would be heightened by the fact that, despite being cleared of professional misconduct by his professional regulatory body, he can no longer teach.”

She added: “Nevertheless, if it is accepted that as a matter of law the UT (and the DBS) were not bound by the fact-findings of the TRA Panel, the weight to be afforded to those findings and whether they demonstrated that the Barring Decision was based on factual errors were quintessentially matters for the UT, subject only to a rationality challenge (which, quite understandably, has not been made).

“Ultimately, for reasons I shall go on to explain, I have concluded that that is the correct analysis, and that in consequence this appeal must be dismissed.”

Lady Justice Andrews observed that in the Safeguarding Vulnerable Groups Act 2006, Parliament had specifically addressed the situation where the facts found by a “competent body” (including the TRA) might potentially conflict with those found by the DBS.

If the disciplinary body made its decision first, the individual concerned could not challenge its fact-findings in representations to the DBS as to why it should not make a barring decision, but the DBS itself was not bound by those findings.

However, if a barring decision were appealed to the Upper Tribunal, the individual could challenge that decision on the grounds that it was based on material mistakes of fact, and, in so doing, could rely on evidence that was not before the DBS, including subsequent findings by a disciplinary body or by the High Court on appeal from that body.

There was nothing in the 2006 Act which expressly or by necessary implication bound the Upper Tribunal to adopt the fact-findings of the disciplinary body.

It was noted by the Court of Appeal that on the contrary, Parliament had “deliberately” left it open to the disciplinary body and the DBS (or the Upper Tribunal on appeal) to reach different factual conclusions even if the evidence and the factual issues were identical.

Lady Justice Andrews observed that the functions of the DBS and the TRA are different. The TRA is concerned with upholding professional standards, the DBS with minimising risks to children.

She said: “The TRA proceedings, which in this case were second in time, could never be determinative of whether the statutory right to make a barring decision existed, or even of the question whether the DBS was entitled to exercise its right to do so on the facts, because that was simply not a matter which the TRA panel had to (or could) decide. The TRA panel only determined whether it was established that XYZ had behaved in a way which amounted to professional misconduct or brought the profession into disrepute.”

Dismissing the appeal, she concluded: “The UT was right to conclude that it was not bound by the fact-findings of the TRA Panel, whether in consequence of the operation of the principle of res judicata, the Hunter principle, or as a matter of construction of paragraph 16 of Schedule 3 to the 2006 Act. 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.

“There was no failure to take into account any material considerations. The UT considered and properly applied the relevant legal principles, examined the evidence with conspicuous care and reached a decision that it was entitled to reach for the reasons that it gave.”

Lady Justice Elisabeth Laing and Lord Justice Jeremy Baker agreed.

Lottie Winson