DF v Disclosure and Barring Service (Tribunal procedure and practice (including UT) : evidence) [2015] UKUT 199 (AAC)
UKUT-AAC
DF v Disclosure and Barring Service (Tribunal procedure and practice (including UT) : evidence)
[2015] UKUT 199 (AAC) · 2015-04-23
[60]This approach limits the scope of the Hunter approach in relation to collateral challenges to decisions in civil proceedings. In Secretary of State for Trade and Industry v Bairstow [2004] Ch 1 ; [2003] EWCA Civ 321 , it was accepted in the light of Arthur J.S. Hall & Co v Simons that Hunter could in principle apply in relation to civil proceedings but the Court of Appeal did not consider it to be unfair to require the Secretary of State to call one witness, rather than using the Judge’s order in the earlier proceedings as a short cut. More importantly for present purposes, it was also held that, in the light of Hollington v F Hewthorne & Co Ltd , the judge’s findings of fact, as opposed to his order, in the earlier proceedings were not admissible in the later proceedings. See also Conlon v Simms [2008] 1 WLR 484 ; [2006] EWCA Civ 1749 . 61. In the present case, the Respondent relied not just on the evidence before Judge Rylance but also on his findings, which were in some instances based on the relative credibility of two witnesses, whom he heard and saw give live evidence and be cross-examined, or on his impression of the ABE interview, which he watched on DVD whereas the Respondent and we have seen only a written summary and not even a full transcript. 62. However, in our judgment, the DBS and the Upper Tribunal are not obliged to take quite such a strict approach to relevance as the courts still take in this area. In ordinary life, the opinion of others is often considered relevant to the forming of one’s own opinions. The identity of another person, the circumstances in which an opinion is formed and the reasons given for the opinion are matters that go to the weight that his or her opinions are given. 63. Even courts are now entitled to receive hearsay evidence in written documents. How much weight is given to such evidence depends on the circumstances. Courts and tribunals may consider such evidence to be worthless but, if it is important, this requires balancing the possible unfairness to one party in being required to call the witnesses to give oral evidence (which may also involve cost and inconvenience to the witnesses themselves and to the tribunal system) against the risk of unfairness to the other party through an error of fact being perpetuated. The fact that the Upper Tribunal may receive written evidence does not mean that it is always fair to do so; it has to consider whether fairness demands that there should be an opportunity for cross-examination. On the other hand, the fact that there has been cross-examination in earlier proceedings may make it less necessary to allow cross-examination again. 64. In making these judgements, regard has to be had to realities of litigation and to the relative importance of the other proceedings, to the quality of reasoning behind the court’s findings and, of course, to the availability of new evidence that may change “the aspect of the case”. The realities of litigation and the relative importance of proceedings may, for instance, be relevant when considering whether a party could reasonably have been expected to call evidence in, or appeal against a decision given in, earlier proceedings. 65. Here, the question is whether the Respondent, and now the Upper Tribunal, is entitled to place weight on findings made by a court exercising a jurisdiction co-ordinate to that of the Upper Tribunal, where the judge gave detailed reasons for his decision. Moreover, the care proceedings before that judge were far more important to the Appellant, and generally, than the present proceedings and she was represented in those proceedings. Her counsel cross-examined the local authority’s witnesses and was able to call evidence on the Appellant’s behalf, including the Appellant herself. 66. The Appellant has said in general terms that she was not able to put her case in the care proceedings, but that is plainly not true. Both her witness statements and Judge Rylance’s record of her case show that the case she was making then was fundamentally the one she makes now. No doubt all represented litigants think that there are times when they would have asked different questions or have made slightly different submissions from those asked or made by their representatives but we are quite satisfied that no point that could realistically have made any difference was not put to Judge Rylance. 67. Accordingly, in this case, we are satisfied that we can properly take into account Judge Rylance’s findings. The relevance of findings by competent bodies 68. There is no finding by a competent body relevant to this case, but we nonetheless make some observations about paragraph 16 of Schedule 3 to the 2006 Act. It would be odd if findings of the competent bodies mentioned in paragraph 16(4) carried more weight than those of a court and Ms Leventhal submitted that that was not the effect of the paragraph. She submitted to us that it did not preclude the DBS from undertaking its own review of the facts and going behind the competent body’s findings in exceptional circumstances, which might include the availability of new evidence or compelling evidence of a procedural unfairness in the proceedings before the competent body. That might be one reason for paragraph 16(3) being expressed in terms of the scope of permissible representations rather than in terms of findings being binding, although one might ask why the person concerned may not make representations on any point that the DBS is entitled to consider. It may also be arguable that, even if paragraph 16 limits the DBS’s powers, it does not have any relevance on an appeal to the Upper Tribunal when the Upper Tribunal is considering whether the DBS made a mistake of fact. Alternatively, it may be arguable that “findings of fact” do not include every minor finding of primary fact but only findings that particular allegations, comparable to counts on an indictment, are proved. On any of those bases, the effect of paragraph 16 may be merely to put findings of competent bodies in the same position as findings of other courts and tribunals, which would be sensible but is not the most obvious construction of the paragraph. Is the Appellant a person who “might in future be engaged in regulated activity relating to children”? 69. Before we turn to the main issue in the case, we consider whether the Respondent made a mistake of fact or law on 31 October 2013 when deciding that the Appellant might in future be engaged in regulated activity relating to children. Ms Leventhal accepted that, if it did, we could direct that the Appellant be removed from the children’s barred list on that ground alone, but she submitted that it did not. 70. The Respondent accepts that the Appellant has never been engaged in regulated activity relating to children but relies on a letter written by the Appellant on 14 October 2011 and received by the ISA on 17 October 2011 in which she said – “It is very hurtful to be on this register when I shouldn’t be on it. I also wish to work with children. I am studying on an Open Learning child care course.” 71. The Appellant’s case is simply that, while she then wished to work with children and still loves children very much, her experience with the care proceedings and now these proceedings has persuaded her that it would be too much trouble and stress for her. She has said – “… I do not intend getting employment with children. I love children, don’t get me wrong, but due to the fabrication that I have been set up with my own children, who in their right mind would want to be set up again by being employed with other people’s children?” 72. We quite understand the Appellant’s position and, of course, if she were removed from the list and she did then try to engage in regulated activity she would no doubt swiftly be included in the list again as matters now stand. (It is arguable that, even if we did consider that she will not engage in regulated activity, we could still deal with the other issues in the case (see Welsh Ministers v Care Standards Tribunal [2008] 1 WLR 2097 ; [2008] EWHC 49 (Admin) .) However, the threshold for finding that a person might in future engage in regulated activity is low – merely that there is a risk that is more than fanciful and therefore cannot sensibly be ignored – and it is material that having engaged in regulated activity in the past is sufficient as an alternative ground even without other evidence of there being a continuing risk. We also observe that, to the extent that the Appellant does not intend to engage in regulated activity, the practical disadvantage to her in being included in the children’s barred list is limited. Given the Appellant’s statements that she loves children, the fact that she no longer sees her own children and her comparatively recent desire to work with children, we are satisfied that the Respondent did not make a mistake of fact on either 14 November 2012 or 31 October 2013 in finding that the Appellant might in future be engaged in regulated activity relating to children. Did the Respondent make a material mistake of fact on any other issue? 73. Each of the six findings of fact made by the Respondent on 31 October 2013 was based on more detailed findings. For the reasons given above, we approach this case on the basis that if, for instance, we were to accept that the house in Surrey was in an unacceptable condition in March 2010 but we were to find that not all the detailed findings recorded in the Barring Decision Process document were made out, we should find there to have been a mistake of fact if, on our more limited findings, the Respondent might have made a different decision on the question whether it was appropriate for the Appellant to be included in the barred children’s list. We could not disregard such a mistake just because we would still have considered it appropriate for her to be included in the list, because that judgement is not for us to make. But, equally, if we were to be satisfied that facts not relied upon by the Respondent were proved and that in the light of those facts the Respondent would be bound to find that it was not appropriate to remove the Appellant from the list, we would not be obliged to allow the appeal. 74. We do not consider it necessary to rely upon the convictions as providing support for any particular findings of fact. Plainly, by themselves, they do not support all the detailed findings made by the Respondent on 31 October 2013 and it is not necessary for us to consider what, if any, findings they might support. 75. However, for the reasons given above, we do consider Judge Rylance’s findings to be relevant and helpful, although not conclusive on any particular issue. He was not obliged to make findings on every tiny dispute before him and he did not do so. Thus, he did not make a finding as to the extent that the Appellant and the children might have been living at the chalet in Kent during March 2010. He did not need to do so because, as he pointed out when considering the ABE interview, once he was satisfied that the children had been living at some stage in conditions described by the police, it did not matter a great deal precisely when that was. We are in the same position. We have formed the same view of the claimant’s evidence to us as he did of her evidence to him and we see no reason not to rely on his impressions of the evidence he heard and that we have not. 76. The evidence that, on 18 and 23 March 2010, the Appellant’s house in Surrey was in a state that was not a fit environment for children is overwhelming and even the Appellant accepts that that was so and that the children were consequently not allowed into it. That some of the rubbish bags may have contained correspondence rather than rubbish and that some of the dampness on the floor may have been orange juice or water rather than urine is really beside the point. It is beyond doubt that there were dog faeces and urine in the house and that the state of the premises, particularly upstairs, was disgusting so that any dog or person walking in that part of the house was liable to come into contact with the faeces and urine. The house was simply not fit for human habitation. We see no reason not to accept Judge Rylance’s finding that there were also dirty nappies on the bathroom floor. The police officers’ statements are unequivocal and we agree that it is difficult to see why they should have wished to make anything up or why they should be mistaken on the most significant issues. 77. Judge Rylance did not hear oral evidence from the police or the local authority about the state of the Appellant’s home in 2004 and we are therefore in as good a position as him to form a view on this issue. We agree with his reasoning, based on the police report, and on the balance of probabilities we find that the house was a dangerous environment for a young child at that time, although the evidence is that it was not in as filthy a state as it was in 2010. The Respondent has not made any mistake of fact as to that. However, this might not by itself be a particularly significant finding in the present case. As the Respondent accepts, there is evidence that the home has been in a satisfactory state at some times. It is not in dispute that there was social services involvement with the family but the Respondent has not made any finding as to the precise nature of it so it is unnecessary for us to do so either. 78. We accept Judge Rylance’s finding as to the presentation of both of the Appellant’s children on 23 March 2010 and of her daughter on previous occasions. He has described the evidence he heard and we are not surprised that he made the finding he did for the reasons he gave. The Respondent’s reliance on Judge Rylance’s findings is entirely appropriate and we are satisfied that it has not made a mistake of fact. It has carefully considered the points raised by the Appellant and we agree with its reasons for rejecting them. The Appellant has also argued that the head teacher was prejudiced against Travellers and that that might have influenced her view of the Appellant’s daughter. However, her allegations were generalised and unconvincing and we reject them. What the head teacher said about the Appellant’s daughter’s presentation on previous occasions was entirely consistent with the evidence of other witnesses as to her condition on 23 March 2010. 79. It is also – as both Judge Rylance and the Respondent have noted – entirely consistent with the Appellant’s daughter having lived in the sort of filthy home environment that existed on 18 and 23 March 2010, as was her son’s presentation on the latter date. We are quite prepared to accept that the Appellant took the children to the chalet during March 2010 and that there may have been days when they drove up from there to Surrey in the morning and back in the evening due to the state that her husband had allowed the house in Surrey to get into. There was evidence before Judge Rylance that the journey would take about an hour with clear roads but much longer during rush-hour. We are also prepared to accept that, if that was so, the condition of the house might well have deteriorated in the Appellant’s absences. It is even possible that the Appellant made some use of the motor home during that period although it seems most unlikely that she made any extensive use of it because, if she had done so as a way of avoiding being in the house, it is extraordinary that, although there is a mention in one statement of the vehicle being outside the house, that the Appellant should not have made her use of it an important factor in her case before Judge Rylance. However, there was overwhelming evidence before Judge Rylance that the children had lived in the squalor for at least short periods. In particular, we rely on his findings in the light of the ABE interview. If the Appellant’s daughter was living there, it is reasonable to infer that her son was too, as her daughter in fact said. Moreover, as the Respondent observed, the fact that the Appellant’s son was in the premises on both 18 and 23 March 2010 is significant and we rely on Judge Rylance’s finding, made after he had heard oral evidence from both parents and PC Hench, that the Appellant’s son was upstairs by himself when PC Hench arrived on 18 March. 80. Finally, we also rely on Judge Rylance’s finding that the Appellant had coached her daughter to mislead the police and social workers on matters material to the criminal and care proceedings. Like him, we find it implausible that police or social workers would have brainwashed the Appellant’s daughter or put words into her mouth and he had the advantage of hearing oral evidence from the foster mother and watching the DVD of the ABE interview. 81. For these reasons, we are satisfied that the Respondent did not make any material mistake of fact within its six specified findings in the decision of 31 October 2013. 82. The Respondent also made a number of findings in its Barring Decision Process document under the headings “Cognitive Factors – Harm-supportive thinking, attitude and beliefs”, “Emotional Factors – Relationships” and “Behavioural Factors – Self management and lifestyle”. They are all made by reference to reports that were before Judge Rylance and which he generally accepted. Of particular relevance are findings that the Appellant had no insight into her failings, that her refusal to accept those failings made it difficult for her to work constructively with professionals, that there had been occasions when she had exhibited unwarranted hostility to professionals and that she had been prepared to lie in the care proceedings. Again we agree with these findings. Did the Respondent make any mistake of law? The decision of 31 October 2013 83. Although the Appellant did not raise any specific point of law, we have looked carefully at the decision of 31 October 2013. We are satisfied that the Respondent did not make any material mistake of law in that decision. Its reasoning is clear and full and its judgment that it was appropriate for the Appellant to remain included in the children’s barred list was one it was entitled to make. Indeed, it is difficult to see how it could properly have reached any other conclusion on the evidence before it, tested as it had been in the care proceedings. 84. In particular, the Respondent clearly took account of the opinions of the psychotherapist whose letters of support had been relied upon by the Appellant but it was equally clearly not obliged to place a great deal of weight on those opinions. It is clear that the opinions were substantially based on what the Appellant had told him and that he had limited knowledge of the facts of the case. His latest letter would not persuade us that it was not appropriate for the Appellant to be included in the children’s barred list even if we were entitled to make our own judgment on that issue. 85. However, we consider that the Respondent was wrong to rely on its “barring powers defined in Schedule 3, paragraph 3 of the Safeguarding Vulnerable Groups Act 2006”. Although, as Judge Rowland said when giving permission to appeal against the decision of 12 June 2012, making a care order implies a finding that there has been what would amount to relevant conduct for the purpose of paragraph 3 and so is plainly relevant to a person’s inclusion in the children’s barred list, the position here was that the Appellant had been included in the list under paragraph 2 and the review was carried out under paragraph 18A. Accordingly, the question was whether DBS considered that it should remove the Appellant from the list because it was satisfied that, in the light of the information that it did not have on 12 June 2012 or 14 November 2012 or in the light of any change of circumstances or any error by ISA, it was no longer appropriate for the Appellant to be included in the list. The decision should have been phrased in those terms, relying on paragraph 18A rather than paragraph 3. However, this is a matter of form rather than substance and does not justify allowing the appeal. 86. We add that there is no reason in principle why, in considering whether it is appropriate for a person to be included in a list under the new version of paragraph 2 of Schedule 3, regard may not be had to facts (including relevant conduct) other than the facts of which the conviction is evidence. The conviction merely provides a threshold, equivalent to relevant conduct under paragraph 3. Thus, even if a judgment in care proceedings is relied on to a greater extent than the conviction in deciding whether to include a person in a list, it would still usually be more appropriate to include the person in the list under paragraph 2, rather than paragraph 3, if at least some of the material facts are related to the conviction. The decision of 14 November 2012 87. As we have said above, we are not entirely convinced that a formal decision in respect of the children’s barred list was actually made on this date but the point is now academic in view of the decision of 31 October 2013. It has also ceased to be material that the decision does not make clear whether the review was paragraph 18A of Schedule 3 to the 2006 Act (on the basis that the amendments made to the 2006 Act by the 2012 Act had been a “change of circumstances relating to the [Appellant]”) or whether it was carried out under articles 8 and 9 of the Protection of Freedoms Act 2012 (Commencement No.3) Order 2012 (on the basis of a deemed application for review by the Appellant) or whether it was possibly carried out under both provisions on the basis that article 9 of the Commencement Order raised the question whether “the Appellant had been engaged or, on the date on which she was barred , might in the future be engaged in regulated activity relating to vulnerable adults” (our emphasis) but paragraph 18A enabled it to have regard to the question whether it had ceased to be likely that the Appellant would engage in regulated activity due to a change of circumstances. The decision of 12 June 2012 88. The decision of 12 June 2012 has also been overtaken by the decision of 31 October 2013 and we agree with Ms Leventhal that it has become unnecessary for us to consider whether there were mistakes of fact or law in the earlier decision. It is right to say that the Respondent did have evidence other than the computer records of the convictions themselves, including statements made by police officers for the purposes of the criminal proceedings, but it had not then obtained either the basis of plea or Judge Addison’s sentencing remarks and it had hardly any information about the care proceedings. Had it not obtained the further documentary evidence it considered on 31 October 2013, the Respondent might nonetheless have persuaded the Upper Tribunal that it was not necessary to call oral evidence in order to resist the appeal. However, that is by no means certain, whereas, if ISA had obtained Judge Rylance’s decision and the other documents in the care proceedings before it made its decision on 12 June 2012, it is unlikely that the Appellant would have been given permission to appeal. Conclusion 89. It would be open to us now to refuse permission to appeal against the decisions of 14 November 2012 and 31 October 2013 but, since those decisions have raised points of law of some interest, we prefer to give permission. However, we dismiss the appeals against those decisions and the decision of 12 June 2012 for the reasons we have given above. 90. We appreciate that this decision will be disappointing for the Appellant. We recognise that she is desperately sad about losing her children and that she has also been greatly affected by a termination she had in 2004 about which she also told us. We also accept that the state of the house may have been largely the fault of her husband on whom she is clearly very emotionally dependent. However, there is clear evidence that she did not protect her children from the risk of harm and that they were neglected in a number of ways. In these circumstances, it would clearly not be appropriate for her to engage in regulated activity with other people’s children. Signed on the original by the presiding judge Mark Rowland Judge of the Upper Tribunal 23 April 2015 Appendix - The Legislation 1. As in force at the time that the ISA made its decision on 2 June 2011, paragraphs 1 to 4 of Schedule 3, to the 2006 Act, relating to the children’s barred list, provided that – 1.(1) This paragraph applies to a person if any of the criteria prescribed for the purposes of this paragraph is satisfied in relation to the person. E+W(2) If it appears to the Secretary of State that this paragraph applies to a person the Secretary of State must refer the matter to ISA.(3) On the reference being made, ISA must include the person in the children's barred list. E+W 2. (1) This paragraph applies to a person if any of the criteria prescribed for the purposes of this paragraph is satisfied in relation to the person. E+W (2) If it appears to the Secretary of State that this paragraph applies to a person the Secretary of State must refer the matter to ISA. (3) On the reference being made, ISA must— (a) include the person in the children’s barred list; (b) give the person the opportunity to make representations as to why he should be removed from the children's barred list.(4) If it appears to ISA that it is not appropriate for the person to be included in the list, it must remove him from the list. 3. (1) This paragraph applies to a person if— E+W (a) it appears to ISA that the person has (at any time) engaged in relevant conduct, and (b) ISA proposes to include him in the children's barred list. (2) ISA must give the person the opportunity to make representations as to why he should not be included in the children's barred list. (3) ISA must include the person in the children's barred list if— (a) it is satisfied that the person has engaged in relevant conduct, and (b) it appears to ISA that it is appropriate to include the person in the list. (4) …(5) … 4. (1) For the purposes of paragraph 3 relevant conduct is— E+W (a) conduct which endangers a child or is likely to endanger a child; (b) conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him; (c) conduct involving sexual material relating to children (including possession of such material); (d) conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to ISA that the conduct is inappropriate; (e) conduct of a sexual nature involving a child, if it appears to ISA that the conduct is inappropriate. (2) A person's conduct endangers a child if he— (a) harms a child, (b) causes a child to be harmed, (c) puts a child at risk of harm, (d) attempts to harm a child, or (e) incites another to harm a child. (3) … (4) … (5) …(6) …” 2. Section 67 of the Protection of Freedoms Act 2012 made substantial amendments to paragraphs 1, 2, and 3 with effect from 10 September 2012. In particular, paragraph 2 has been remodelled so that the person concerned is now given the opportunity to make representations before being included in the list and both that paragraph and paragraph 3 now require a person to be put on the children’s barred list only if he or she “is or has been, or might in future be, engaged in regulated activity relating to children”. Thus paragraph 2 then provided – “ 2. (1) This paragraph applies to a person if any of the criteria prescribed for the purposes of this paragraph is satisfied in relation to the person. E+W (2) If the Secretary of State has reason to believe that— (a) this paragraph might apply to a person, and (b) the person is or has been, or might in future be, engaged in regulated activity relating to children, the Secretary of State must refer the matter to ISA. (3) Sub-paragraph (4) applies if (whether or not on a reference under sub-paragraph (2)) it appears to ISA that— (a) this paragraph applies to a person, and (b) the person is or has been, or might in future be, engaged in regulated activity relating to children. (4) ISA must give the person the opportunity to make representations as to why the person should not be included in the children's barred list. (5) Sub-paragraph (6) applies if— (a) the person does not make representations before the end of any time prescribed for the purpose, or (b) the duty in sub-paragraph (4) does not apply by virtue of paragraph 16(2). (6) If ISA— (a) is satisfied that this paragraph applies to the person, and (b) has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children, it must include the person in the list.(7) Sub-paragraph (8) applies if the person makes representations before the end of any time prescribed for the purpose.(8) If ISA— (a) is satisfied that this paragraph applies to the person, (b) has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children, and (c) is satisfied that it is appropriate to include the person in the children's barred list, it must include the person in the list.” 3. Paragraphs 7 to 10 of Schedule 3 have at all times made provision in respect of the adults’ barred list that is similar to the provision made by paragraphs 1 to 4 in respect of children’s barred list. 4. At the time of his decision of 12 June 2012 not to remove the Appellant from the lists, paragraph 16 provided – 16. (1) A person who is, by virtue of any provision of this Schedule, given an opportunity to make representations must have the opportunity to make representations in relation to all of the information on which ISA intends to rely in taking a decision under this Schedule. E+W (2) Any requirement of this Schedule to give a person an opportunity to make representations does not apply if ISA does not know and cannot reasonably ascertain the whereabouts of the person. (3) The opportunity to make representations does not include the opportunity to make representations that findings of fact made by a competent body were wrongly made. (4) Findings of fact made by a competent body are findings of fact made in proceedings before the Secretary of State in the exercise of the Secretary of State’s functions under section 141B of the Education Act 2002, or in proceedings before one of the following bodies or any of its committees— (a) …; (b) the General Teaching Council for Wales; (c) the Council of the Pharmaceutical Society of Great Britain; (d) the General Medical Council; (e) the General Dental Council; (f) the General Optical Council; (g) the General Osteopathic Council; (h) the General Chiropractic Council; (i) the Nursing and Midwifery Council; (j) the Health Professions Council; (k) the General Social Care Council; (l) the Care Council for Wales. (5)The Secretary of State may by order amend sub-paragraph (4) by inserting a paragraph or amending or omitting a paragraph for the time being contained in the sub-paragraph.” 5. Paragraph 18 provided for reviews after the minimum barred period but, from 10 September 2012, paragraph 18A was inserted by section 71 of the 2012 Act and provided – “ 18A. (1) Sub-paragraph (2) applies if a person's inclusion in a barred list is not subject to— (a) a review under paragraph 18, or (b) an application under that paragraph, which has not yet been determined. (2) ISA may, at any time, review the person's inclusion in the list. (3) On any such review, ISA may remove the person from the list if, and only if, it is satisfied that, in the light of— (a) information which it did not have at the time of the person's inclusion in the list, (b) any change of circumstances relating to the person concerned, or (c) any error by ISA, it is not appropriate for the person to be included in the list.” 6. At the time when the Appellant first submitted her appeal, section 4 of the 2006 Act provided – “ 4.– (1) An individual who is included in a barred list may appeal to the Upper Tribunal against— (a) a decision under paragraph 2 or 8 of Schedule 3 not to remove him from the list; (b) a decision under paragraph 3, 5, 9 or 11 of that Schedule to include him in the list; (c) a decision under paragraph 17 or 18 of that Schedule not to remove him from the list. (2) An appeal under subsection (1) may be made only on the grounds that ISA has made a mistake— (a) on any point of law; (b) in any finding of fact which it has made and on which the decision mentioned in that subsection was based. (3) For the purposes of subsection (2), 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. (4) An appeal under subsection (1) may be made only with the permission of the Upper Tribunal. (5) Unless the Upper Tribunal finds that ISA has made a mistake of law or fact, it must confirm the decision of ISA. (6) If the Upper Tribunal finds that ISA has made such a mistake it must— (a) direct ISA to remove the person from the list, or (b) remit the matter to ISA for a new decision. (7) If the Upper Tribunal remits a matter to ISA under subsection (6)(b)— (a) the Upper Tribunal may set out any findings of fact which it has made (on which ISA must base its new decision); and (b) the person must be removed from the list until ISA makes its new decision, unless the Tribunal directs otherwise. 7. Paragraph 44 of Schedule 9 to the 2012 Act made amendments to section 4(1) of the 2006 Act in consequence of the amendments to Schedule 3 that came into force on 10 September 2012. Paragraph (a) was omitted, references to paragraphs 2 and 8 of Schedule 3 were included in paragraph (b) and paragraph (c) was extended to the new paragraph 18A of the Schedule 3. Only the last of those amendments is directly relevant to this case. 8. Transitional provisions relating to amendments made to the 2006 Act by the 2012 Act include articles 7 to 10 of the Protection of Freedoms Act 2012 (Commencement No.3) Order 2012 (SI 2012/2234), which provided at the time of the ISA’s decision of 14 November 2012 – “ 7. Articles 8 to 10 apply from 10th September 2012. 8. —(1) Any person who is on the children’s barred list or the adults’ barred list (within the meaning of section 2 of the 2006 Act …), at the time that section 67 of … the [2012] Act comes into force, may apply to ISA for a review of their inclusion in the children’s barred list or the adults’ barred list (as the case may) in the circumstances set out in paragraph (2). (2) The circumstances are that the person considers that ISA would not, if it were now considering whether to bar that person under paragraphs 2, 3, 5, 8, 9 or 11 of Schedule 3 to the 2006 Act …, as amended by section 67(2) to (4) and (6) to (8) of … the [2012] Act, have reason to believe that the person is or has been or might in future be engaged in regulated activity relating to children or vulnerable adults (as the case may be). 9. On receiving an application under article 8, ISA must remove the person from the children’s barred list or the adults’ barred list (as the case may be) if it does not have reason to believe that the person has been engaged, or, on the date on which they were barred, might in the future be engaged in regulated activity relating to children or vulnerable adults (as the case may be). 10. Section 4 of the 2006 Act and Article 8 of the 2007 Order apply to any decision of ISA not to remove a person from the children’s barred list or the adults’ barred list (as the case may be) under article 10 of this Order.”