Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 442 (AAC)

Fecha: 31-Oct-2024

The Appellant’s case and Submissions

The Appellant’s case and Submissions

27.

We did not hear from the Appellant.

28.

Although the Applicant disputes the factual finding that she was asleep at the relevant time, as opposed to merely resting, that decision is not the subject of this appeal. It is recognised that that was a finding reasonably open to the BUPA disciplinary committee and, by extension, to the DBS, on the evidence received.

29.

This appeal is founded, however, on the basis that DBS erred in law by failing to take any, or adequate, account of the features set out in the Applicant’s representations, (summarised at paragraph 25 above) in determining the outcome. In doing so, it reached a decision that was disproportionate and unfair.

30.

Specific issue is taken with the following features of the decision:

(a)

The central conclusion that the conduct was ‘likely’ to be repeated. There was no evidence, or findings made, by the BUPA investigators to support the conclusion that this was part of a wider pattern of behaviour by the Applicant such that it presented a real risk of being repeated. Her dismissal was founded on the isolated finding of misconduct on 14 July 2022;

(b)

The reference to the Applicant’s early apology without any consequential analysis of its significance to, inter alia, her insight and the risk of repetition;

(c)

The reference to the Applicant’s long and unblemished record, without any acknowledgement of the fact that this characterised the conduct in question as isolated, outwith her usual practice and the impact this had on the risk of repetition. Instead, her long experience was factored in only as an aggravating feature on the basis that she “would have been fully aware that such behaviour was unacceptable”;

(d)

The absence of any consideration of whether the public interest lay in retaining the services of an otherwise valued and experienced professional;

(e)

The fact that no weight appeared to be placed on the Applicant’s submission that she had worked successfully since her dismissal, without further concerns being raised, because she “provided no documentary evidence of this”. This rationale was wrong and unfair and placed an improper evidential burden on the Applicant to prove a negative;

(f)

The reference to the Applicant’s reflections on the matter, for which no credit appears to have been given. They were deemed to be inadequate, without setting out clearly what ought to have been done or said to show ‘good’ insight, before concluding that she was ‘likely’ to cut corners in future;

(g)

The recognition that the Applicant did not intend to cause harm to the residents in question, without distinguishing this from cases where intentional harm is present, or attempting to analyse the significance of that as regards the overall seriousness of the case and the risk of repetition;

(h)

The reference to the Applicant’s unreserved apologies in her written representation, without any reference to its relevance to insight or any exploration of the impact of that on the risk of repetition;

(i)

The lazy assumption that the conduct in question, which was confined to her role in the Care Home, would likely be repeated in the context of the care of children.

31.

In summary, it is submitted that the Respondent failed to conduct an effective and fair analysis of the facts of the case. In doing so, its decision to place the Applicant on the Children’s and Adult’s barred lists was unreasonable, irrational and disproportionate.

32.

Though the conduct in question was undoubtedly serious and led, quite justifiably, to the Applicant’s dismissal by BUPA, it was an isolated incident in an otherwise unblemished and lengthy career. It is submitted that it was neither necessary nor in the public interest to place an indefinite bar on further practice with children and adults, with the inevitable consequences that has on the Applicant personally and professionally.