[2025] UKUT 036 (AAC)

In respect of the first core finding (the failure to secure the commode/shower chair), SB accepts that on the balance of probabilities the commode/shower chair was not appropriately tilted or secured and that the service user’s care plan stated that it should be. However, it is argued that the DBS erred in failing to make any findings of fact as to the role and responsibility of SB’s co-worker that day (“HA”). It is said by SB that HA was the service user’s regular carer at the time of the incident and that HA’s own evidence was that she sometimes did not secure the service user’s chair. SB argues that factual findings as to HA’s behaviour were plainly material to an assessment of SB’s responsibility and culpability. It is said by SB that the mistake of material fact here was the DBS’s failure to make findings of fact: per paragraph [39] of PF v DBS [2020] UKUT 256 (AAC).

The second mistake of material fact ground of appeal is about the second core finding in the DBS’s decision, that SB had failed to seek medical assistance for the service user and had moved her without assessing her injuries. SB argues the DBS here made a material error of fact in finding that the service user was “non-communicative” when it had previously (and SB says correctly) found the service user to be “non-verbal”. It is argued this was highly relevant because when the service user fell, she made no noise to indicate pain and, initially, showed no signs of injury, and SB therefore reasonably believed her uninjured and acted as she did (in moving the service user) on that basis. It is argued the DBS rejected this explanation as “not considered credible” on the erroneous basis that the service user “could not indicate her pain or injuries”. It is further argued that the statement that the service user’s injuries were not assessed is simply incorrect. It is submitted that SB (and HA) both initially believed that the service user was unharmed, they then assisted her to her bed where they performed an injury assessment.

In respect of the third core finding – that SB had failed to accurately record and report the incident – it is argued by SB that the DBS made a mistake of fact because she had been placed in an exceptionally difficult situation. Her colleague, HA, initially misled the service user’s daughter and another member of staff as to the cause of the service user’s injuries, but contradicting HA’s account would have meant SB undermining the trust developed in HA’s years’ long care relationship with the service user, which SB was reluctant to do before having discussed the incident with her superiors. It is argued that, nonetheless, at no point following the incident, did the SB make any false or inaccurate statements regarding the service user’s fall. HA had stated she would phone the employer, Excelcare, to report the incident, and HA did so. It was for this reason that SB did not report the incident herself by phone. However, it is said, SB did provide an accurate report of the incident to Excelcare on leaving the service user’s home. It is further argued that the third core finding incorrectly apportions HA’s misconduct to SB.

A further consideration in respect of the third core finding was raised when permission to appeal was granted. This is that whether SB had failed to record and report the incident might depend on what her then employer’s safeguarding policies and procedures required her to do in circumstances where at least two employees were involved in the incident.