Court of Appeal clarifies approach to proportionality in barring decisions

18.07.12 |

The Court of Appeal has today handed down judgment in Independent Safeguarding Authority v SB (Royal College of Nursing intervening), which is now the leading case on the application of the barring scheme to protect children and vulnerable adults established by the Safeguarding Vulnerable Groups Act 2006. Although the Court of Appeal quashed the Upper Tribunal's decision on the facts of SB's case, it confirmed that the Tribunal must decide for itself whether barring decisions are proportionate, giving appropriate weight to ISA's decisions in so doing. The Royal College of Nursing was represented by Ian Wise QC and Stephen Broach in its intervention.

Although the Court of Appeal held that the Upper Tribunal was correct to determine the question of proportionality for itself, it erred in (1) failing to accord appropriate weight to the ISA's original decision and (2) failing to specifically address the question of whether public confidence in the barring scheme would be undermined by allowing the appeal. Although the tribunal in SB went too far in giving the ISA's decision no weight, it is clear from the Court of Appeal judgment that it would be wrong for the tribunal to give any 'deference' to the ISA's decision.

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