[2025] UKUT 075 (AAC)

We consider first whether DBS has made a material mistake of fact in any respect in its decision in the way alleged by the appellant in her grounds of appeal.

The appellant in her grounds of appeal denied sleeping on shift. At the hearing, however, it became apparent that the appellant does not deny sleeping on shift. Indeed, she has accepted from the outset that she fell asleep while on shift. That part of DBS’s decision is therefore not in error.

The focus of the appellant’s case is, rather, that she did not intend to sleep on shift. On this issue of fact, we have accepted the appellant’s evidence for the reasons set out in our findings of fact above. We have found that she did not intend to sleep on shift. She did not bring in a quilt from home. We are sufficiently certain about our findings of fact in these respects that in our judgment DBS was wrong to conclude otherwise in its decision. These are mistakes of fact in DBS’s decision. As such, DBS’s conclusion that the appellant was also at fault in not alerting other staff that she was planning to sleep on a break is also a mistake of fact. Not only was there, we find, no phone that the appellant could reasonably have used to alert other staff, but there was nothing she could reasonably have alerted them about because she was not planning to sleep. Nor was there any other procedure to be followed by the appellant that she failed to follow. The practice in the home was for staff to sit and rest when they could during their shifts. They were required to remain awake and alert, but there was no prohibition on sitting down for a rest when checks on residents had been completed and all was quiet.

In these respects, therefore, we find that DBS made mistakes of fact in regarding the appellant’s case as one in which she had deliberately planned to sleep and failed to alert other staff so as to ensure adequate cover for service users. We consider these to be material mistakes of fact as it is apparent from DBS’s decision letter that it placed considerable weight on these factual elements of the appellant’s case, drawing inferences from these primary facts as to the risk that the appellant might pose in the future. Although DBS did in its decision refer in the alternative to the appellant having chosen a course of action that made it more likely she would fall asleep on duty, and we have agreed with DBS’s assessment in that respect, much of the reasoning in DBS’s decision letter falls away if in fact the appellant’s conduct was not deliberate. That fact potentially puts a very different complexion both on the incident itself and the risk that DBS may consider the appellant poses in future.

The appellant’s other ground of appeal was that DBS erred in law in determining that it was proportionate to bar her in all the circumstances. There are a number of facts that we have found that are relevant to this ground of appeal that might potentially lead to a different conclusion in relation to proportionality. These include the mistakes of fact already identified about falling asleep not being deliberate and also the following:-

The legal principles that we have identified in the legal framework section of this judgment make clear that it is a matter for this Tribunal to determine proportionality, but also that we must place due weight on DBS’s view.