DBS Barred List Appeals After SA v DBS: When Is the DBS Bound by the Tribunal?

Winning a barred list appeal is hard. The Upper Tribunal only interferes with a Disclosure and Barring Service decision where the DBS has made a mistake of fact or an error of law. Even then, the usual outcome is not removal from the list but remittal, which means the DBS takes the decision again. That raises an uncomfortable question which the law had never fully answered: when the DBS re-decides your case after you have won, how far is it bound by what the Tribunal found?

The Upper Tribunal has now answered that question in SA v Disclosure and Barring Service [2026] UKUT 232 (AAC), a decision of Judge Stout published in July 2026. It is the clearest guidance yet on “second-time-round” appeals. It matters to anyone facing a barring decision, whether they are at the start of the process or living with the aftermath of an appeal they thought they had won.

How Barred List Appeals Work

The DBS maintains the children’s and adults’ barred lists. A person included on either list cannot work in regulated activity with the relevant group, so a barring decision usually ends a career in care, healthcare, teaching or any other role involving vulnerable people.

Under section 4 of the Safeguarding Vulnerable Groups Act 2006, a barred person can appeal to the Upper Tribunal, but only on limited grounds. The appeal must identify a mistake in a finding of fact on which the barring decision was based, or an error on a point of law. The question of whether barring is appropriate is for the DBS, not the Tribunal, so an appeal has to be built around identifiable mistakes rather than a general sense of unfairness. Permission is needed before the appeal can proceed.

Where an appeal succeeds, the Tribunal has a choice. If removal from the list is the only decision the DBS could lawfully reach, the Tribunal can direct removal. Otherwise, it remits the case to the DBS to decide again. It can also direct, under section 4(7)(a) of the Act, that the new decision must be based on the findings of fact the Tribunal has made. What that direction actually achieves was the issue at the heart of SA.

The Case – A Win That Did Not End the Matter

SA was a healthcare assistant who was placed on the adults’ barred list over two incidents involving intimate care provided to vulnerable adult residents. He appealed, and the first Upper Tribunal found in his favour on the central allegation, holding that he had no sexual intent. The Tribunal did find that he had acted in a manner that was somewhat insensitive, or callous, and that the service users had been left upset and uncomfortable. Even so, the case the barring decision had been built on was substantially undermined. The matter was remitted to the DBS with a direction that its new decision be based on the Tribunal’s findings.

The DBS then decided to keep SA on the barred list. In doing so, it departed from the findings the first Tribunal had made, and it made additional findings of its own that the evidence did not support. SA appealed again, and it was this second appeal that gave the Upper Tribunal the opportunity to decide how second-time-round appeals should work.

What the Tribunal Decided

The Tribunal decided three things, and each one matters in practice.

The DBS is bound by the Tribunal’s findings of fact. Where the Tribunal has directed under section 4(7)(a) that the new decision must be based on its findings, the DBS cannot depart from them. In SA’s case, the DBS had done exactly that. The Tribunal held that this was a material error of law and fact which made the new decision unlawful.

But the DBS can still consider other matters. Being bound by the Tribunal’s findings does not freeze the whole picture. When the DBS looks at the case again, it can take other matters into account, as long as there is proper evidence for them. In SA’s case, the extra findings the DBS made had no proper evidential basis, which is one of the reasons he won. But the principle stands: a successful appeal narrows what the DBS can rely on, without always closing the case down completely.

Once something has been decided, it stays decided. The Tribunal confirmed that a legal principle known as issue estoppel applies to these appeals. In plain terms, neither side can argue again about something the first appeal has already settled. The rule goes further than that: points that could and should have been raised in the first appeal cannot be saved up and used in a second one, unless there are special circumstances. This cuts both ways. The DBS does not get another go at points it lost. But a barred person cannot hold back arguments or evidence for later either. You get one full opportunity to fight the facts, and it is the first appeal.

Applying all of this, the Tribunal allowed SA’s second appeal, because the DBS’s decision was unlawful. But it was not persuaded that taking him off the list was the only decision the DBS could lawfully make. So the case went back to the DBS again, this time with the DBS bound by the findings of both Tribunals.

What This Means If You Win Your Appeal

SA has now won two appeals, yet at the time of the second decision he was still on the barred list, waiting for the DBS to consider his case for a third time. Winning an appeal does not always mean coming off the list, and it is important to understand that from the start.

What winning does mean is that the facts found in your favour are locked in. If the Tribunal found that you did not do what you were accused of, the DBS must decide your case on that basis. It cannot quietly go back to its original version of events, and it cannot build new findings on evidence that does not support them. That is exactly what the DBS did in SA’s case, and it is why he won his second appeal.

What winning does not automatically mean is removal from the list. Unless removal is the only decision the DBS could lawfully make, the Tribunal sends the case back for the DBS to decide again. When it does, the DBS must work from the facts the Tribunal found, though it can also take other matters into account where there is proper evidence. The aim of an appeal is therefore not just to win. It is to win in a way that leaves the DBS with as little as possible to hold against you when it looks at your case again.

What This Means Before Your First Appeal

The most important lesson in SA v DBS is for people who have not yet appealed. Because arguments cannot be saved for later, your first appeal has to contain everything: every fact you dispute, every piece of evidence that supports you, and every legal point in your favour. If something is left out that could have been included, you will generally not get a second chance to raise it.

The same thinking applies even earlier. The best outcome of all is never being barred, which is why the response to a minded-to-bar letter matters so much. That letter is your chance to persuade the DBS before any decision is made, and we have seen barring stopped entirely at that stage, including in a case where a doctor faced a false allegation. If you have already been barred, the appeal needs to be prepared as what SA v DBS confirms it is: your one full chance to challenge the facts.

How Legisia Can Help

We act at every stage of the barring process. That includes representations in response to minded-to-bar letters, appeals to the Upper Tribunal, and the second-time-round situations that SA v DBS now governs, where the DBS has re-barred after a successful appeal. Our DBS barring appeals service covers all of it.

If the DBS has departed from findings a Tribunal made in your favour, SA v DBS gives you a clear basis for challenging the new decision, and we can assess that quickly. If you are at an earlier stage, the case is a reminder that the work done now determines what binds the DBS later.

We offer a fixed-fee initial consultation where we will assess your case in detail and provide clear written advice on your options.

To discuss your case, contact us or call 020 8099 9051.

Frequently Asked Questions

Can I appeal a DBS decision to put me on a barred list?

Yes. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, a barred person can appeal to the Upper Tribunal on the ground that the DBS made a mistake in a finding of fact or an error on a point of law. Permission to appeal is required, and the appropriateness of barring itself is a matter for the DBS rather than the Tribunal, so the appeal has to be built around identifiable mistakes.

If I win my barred list appeal, will I be removed from the list?

Not always. The Upper Tribunal can direct removal where that is the only lawful outcome, but in many cases it remits the matter to the DBS for a new decision. Where the Tribunal directs that the new decision must be based on its findings of fact, the DBS is bound by those findings, although it may also rely on additional facts. A successful appeal narrows what the DBS can lawfully decide, but it does not always end the matter.

Can the DBS ignore the Upper Tribunal’s findings when it makes a new decision?

No. SA v DBS confirms that where the Tribunal has directed the DBS to base its new decision on the Tribunal’s findings of fact, the DBS is bound by those findings. In SA’s case, the DBS departed from the binding findings and made additional findings that the evidence did not support. The Upper Tribunal held that this was a material error of law and fact.

What is issue estoppel in a DBS barred list appeal?

Issue estoppel is a legal rule that stops points being argued again once they have been decided. SA v DBS confirms that it applies to barred list appeals, and that it also covers points that could and should have been raised in the first appeal but were not. In practice, neither the DBS nor the person appealing can re-open those matters in a later appeal unless there are special circumstances.

Do I need to raise everything in my first barred list appeal?

Yes, as far as possible. Because the rule in Henderson v Henderson applies, arguments and evidence that could and should have been put forward in the first appeal generally cannot be raised in a second one. The first appeal is the opportunity to establish the findings of fact that will bind the DBS afterwards, which is why it needs to be prepared comprehensively from the start.