[2025] UKUT 036 (AAC)

Before turning to address the grounds of appeal, we set out first the key aspects of the evidence SB gave at the oral hearing before us.

SB told us that she had worked as a teacher in Bangladesh, and as a teaching assistant in the UK from December 2021 until she was barred from working with vulnerable adults and children in March 2023. She had also worked in the care sector in the UK, with older people, for over 6 years. SB told us that she loves working with young people and older people, but has not worked in the care sector since the relevant incident (on 10 August 2022) that led to her being barred by the DBS.

In respect of that 10 August 2022 incident and the service user involved in it, VA, SB told us that she had started working with VA on 10 July 2022, but SB then took a week of holiday. SB said the care agency ought to have explained to her what care needs VA had and the agency did not tell SB to read VA’s care plan. SB told us she just did what her colleague, HA, told her to do in terms of VA’s care, though SB added that HA’s communication with her was not good. SB later clarified her evidence by saying she had not seen VA’s care plan and assumed HA would tell her about VA’s care needs. The care given to VA was given to her in VA’s home.

SB’s evidence to us was that VA did not have any means to speak but she could ‘scream’ if given too much food, and VA therefore could communicate when in pain or discomfort.

Turning to the incident on 10 August 2022, SB was working with HA in providing care to VA. HA had finished feeding VA and VA was then showered and dressed. They then put a sling on VA whilst she was sitting in the shower chair/commode. The sling was to aid transferring VA from the chair to the bed. HA would usually stand next to VA but on this occasion had moved from her side to make up VA’s bed. SB was standing a couple of feet away with her back to VA, putting some cream away. As SB turned around, she saw VA fall from the chair face down onto the floor. SB later told us that she did not know the chair had a tilted position, but it was (in her view) stable. It is common ground that the chair had not been secured in its tilted back position. SB initially told us that as neither she nor HA heard VA scream, they immediately lifted her back from the floor back onto the chair, and then checked VA over when she was in the chair. VA was then transferred to bed. SB then said that it was when VA was in the bed that she and HA “needed to see if she was okay or not on the head or the body”. This evidence was seemingly at variance with SB’s initial evidence that checks were made on VA when she was in the chair. In either event, SB’s evidence was that neither she nor HA had checked VA before moving her from the floor back to the chair.

VA had some swelling on her face 15 minutes after the fall. On seeing this, it was SB’s evidence that she told HA that they had to tell VA’s daughter the truth of what had happened. However, HA told SB they were going to to tell the daughter her mother (VA) had hit her head in the hoist, which was part of the mechanism used to move VA in the sling. SB told us she had said to HA “How can you say this?”, but SB then froze. As HA in SB’s view had a good relationship with VA’s daughter, SB wanted to see if HA would lie to the daughter. HA then suggested she and SB just left VA’s home, but SB’s evidence to us was that she told HA they could not do that and “no matter what we must tell the daughter the truth”. The daughter was in another room downstairs in VA’s house, and came into the room. The daughter was crying. When she asked what had happened, HA (wrongly) told the daughter her mother had hit her head on the hoist. SB told us that she was nervous and a new carer for VA, so all she said in answer to the daughter’s query was that she (SB) “didn’t do this intentionally”.

VA had fallen, SB told us, at about 9.30am on 10 Augut 2022. At around 10.15am that day, SB said that a third carer came to the property. That carer kept asking what had happened. SB did not answer her as she just froze, but HA told the third carer that VA had fallen into the hoist. It was the third carer who ran to the kitchen to get an ice pack to put on VA’s bruised face. SB had not done this, she told us, because she thought HA would do this and she (SB) did not have any information about the kitchen. Nor did SB or HA ring ‘999’. It was VA’s daughter who did this. SB’s reason for not ringing ‘999’ she told, us was because she thought VA was fine. We interpose at this stage that SB took this view notwithstanding the bruising to VA’s face or the fact that she had fallen flat on her front, face first.

SB told us that had a problem with her own phone on the day in question so she could not call her employer’s office to report what had occurred. SB‘s evidence to us was that she had told HA to call the employer’s office and explain everything that had occurred and that she (SB) would go to the office later. She went to the employer’s (Excelcare’s) office at around 1pm-1.30pm that day (10 August) and explained to the staff member there what had happened. The record of SB’s statement is at page 74 of the Upper Tribunal bundle. It is a short but accurate description of VA’s fall, but wrongly implies or at least suggests by its closing words that when SB and HA saw VA’s face was swelling they called the daughter and told her what had occurred. Nothing in that short statement of SB sets out that her colleague had, at the very least, misled, or at worst, lied to, the daughter about what had occurred.

However, SB did tell her manager what HA had (wrongly) told VA’s daughter when SB was interviewed by her manager, on her statement, at 1.30pm on 10 August 2022. That interview begins at page 83 of the Upper Tribunal bundle. What SB is recorded as saying in that interview is largely consistent with her evidence to us. SB told her manager that VA had fallen from the chair, face first, onto the floor, and that she and HA had moved VA back into the chair before checking on her. SB also disclosed in that interview that HA had told the daughter that VA had got hurt on the hoist, whereas the hoist was nowhere near and VA had fallen and hit her face on the floor.

It was in an interview the next day with the same manager that it was put to SB that she and HA had discussed what to say to the daughter and had agreed, effectively, to lie to the daughter about VA having hit her head on the hoist. SB did not agree in that interview that she had agreed to this lie, and her evidence was to the same effect before us.

SB further told us that her manger told her she could resign and that, if she did, she did not need to attend the disciplinary hearing. She resigned in consequence.

SB’s evidence to us was that she had had no similar issues with those she cared for before 10 August 2022 or had faced any disciplinary proceedings. She has reflected further on the incident and understands further what went wrong. She realises, she told us, that she ought not have picked VA up from the floor and should have reported what had occurred immediately. She knows it was both her and HA’s responsibility to care for VA, but she thought HA would take the lead. SB told us she had learnt from the incident and evidenced this by referring to a neighbour who had fallen and for whom she had called an ambulance and then waited until the ambulance arrived. She had become more cautious that nothing should go wrong when working as a teaching assistant. Her dream job is to work with children but the barring decision had limited her career in this respect. SB said she deeply apologised for what had happened to VA. VA was like, and about the same age as, SB’s grandmother, and SB said she wanted to save VA otherwise the ambulance was going to come. She considered she had saved VA (by moving her from the floor) because VA’s face was down, she might not have been able to breathe and her condition could have worsened if she had been left lying face down on the floor. However, SB later accepted in cross-examination that they should not have moved VA after she had fallen to the floor and that they should have called the ambulance (and VA’s daughter) immediately. On the face of it, and consistently with what SB had told her employer on 10 and 11 August 2022, SB accepted that both the need to call the ambulance immediately and not to move VA arose from her (manual handling) training. However, she had been shocked by the fall and as a result those steps were not taken.

Further under cross-examination, SB accepted she had worked for 6 years as a carer before 10 August 2022 and was experienced in caring for older people. Moreover, this was the only time she had not read a person’s care plan. SB did not have VA’s care plan and had been told just to go to VA’s house and HA would tell her about VA’s care needs. She had asked HA about what exactly they had to do for VA, but HA had not given SB all the information and was quite bossy. In questions from the tribunal, SB told us that care plans for individuals were kept in their homes and on SB’s phone and “it was always suggested if going to a new home to read the care plan”. However, in this case SB had assumed HA would tell her what VA’s care needs were. SB’s evidence was that VA may have had a care plan in her home, but SB had not checked. Nor had she had “the opportunity” to say to HA that she (SB) needed to see the care plan, although this evidence was in our view somewhat undermined by SB’s later evidence that she had asked HA what VA’s care plan required, evidence which was itself somewhat undermined by earlier evidence of SB that she should have asked about the care plan.

We comment at this stage that if SB was (rightly) concerned to know the details of VA’s care needs as set out in her care plan, and if (as SB told us) HA was not giving her all the information and was not good at communicating with SB, it was for SB to find out that information for herself by locating the care plan in VA’s house and reading it.

As for the incident on 10 August 2022 itself, SB clarified that it was VA’s face that hit the ground first, the fall made quite a loud bang and HA at one stage had thought VA had died. When Mr Ryan (for the DBS) put to SB that she had accepted in the interview with her manager on 10 August 2002 that she knew (from manual handling training) that she should never support someone up from the floor following a fall, particularly where they have hit their head, and she should have called for medical assistance, SB said she and HA had panicked. Once VA was back in the chair, HA had checked her for injuries, and once VA was in the bed both SB and HA had checked VA for injuries. In questioning from the tribunal, SB told us that she had had first aid training two years before the incident and was herself a first aid trainer. SB accepted that when she saw the swelling on VA’s face she needed to tell the daughter so that the next steps to be taken could be identified. However, it had not come into SB’s mind that VA might have suffered a head injury as a result of the fall.

In relation to the chair and its tilting mechanism, SB said she did not know the chair could tilt and she had not asked HA about this. Moreover, SB accepted that she had not told her colleague that she (SB) had not read VA’s care plan. SB further accepted in cross-examination that she a responsibility to challenge HA.

In relation to whether SB and HA had agreed to lie to VA’s daughter about what had happened, SB’s evidence was in some respects equivocal. In cross-examination SB said she had told HA that they needed to tell the daughter, but said they then agreed not to tell the daughter. On SB’s evidence, HA then told SB they were going to lie and SB thought HA, as a care worker of more experience, knew best how to handle the situation, though she recognised what HA was doing was wrong. Furthermore, SB said she could not bear to tell VA’s daughter the truth about what had in fact occurred because the daughter was so upset.

It seems on the evidence before us to us, on the balance of probabilities, that SB did not positively agree to lie to VA’s daughter about what had happened, but neither did she take any steps to correct to the daughter the lie that HA had told VA’s daughter. This is supported by, and is broadly consistent with, the evidence SB subsequently gave to her employer in her two interviews with her employer on 10 and 11 August 2022.

One other area of the evidence we need to address is the “incident reporting procedure”. This is referred to within the DBS’s Barring Decision Summary document, and appears on page 209 of the Upper Tribunal bundle. What is there set out is:

“It appears that [SB] subsequently failed to follow policies or procedure on witnessing [VA’s] fall in that she failed to seek medical assistance and moved [VA] from the floor to the chair without conducting an assessment of her injuries, she failed to report the fall to her daughter and [the third care worker who arrived at on 10 August 2022 at 10.15am] and she failed to record the fall via the incident reporting procedure.” (the underlining is ours and has been added for emphasis)

In the DBS’s decision, this ‘failure’ to report to VA’s daughter and the third care worker was described as follows:

“It is accepted that [HA] contacted the office following the incident, however it remains concerning that you did not correct [HA] and provide the true version of events, when [VA’s] daughter was told of the accident. You had already confirmed you had left the home without providing a clear account of the incident. You therefore failed to report it accurately to others.”

The tribunal raised this issue with the parties. SB’s evidence was that she recalled this procedure but it was for HA, as the more senior carer (in the sense of HA having worked with VA for longer), to write this up. SB understood HA had made this record and report. SB told us that one person making such a report on behalf of two carers was fine. SB considered her attending the office and being interviewed at 1.30pm on 10 August 2022 was her ‘reporting’ the incident. She considered the ‘incident reporting procedure’ had been followed by HA contacting the office and reporting in the paperwork.

Having set out, and to some extent commented on, SB’s evidence, we turn to the grounds of appeal.

We will start with the grounds of appeal on which we consider SB should succeed. We will then explain why the other grounds of appeal are not, in our judgement, made out made.