[2025] UKUT 075 (AAC)

Having considered the documentary evidence in the bundle, the oral evidence of the appellant and the submissions of the parties, we make the following findings of fact, applying the balance of probabilities standard. We do so as a preliminary step to considering whether DBS has made a ‘mistake of fact’ in any material respect in its decision. It does not necessarily follow that because our findings of fact differ to DBS’s findings in its decision that DBS has made a ‘mistake of fact’. We consider whether or not it has made a mistake in any material respect in our analysis and conclusions section.

Before setting out our findings, however, we make some general observations about the evidence from the appellant in this case.

It was evident to us from the appellant’s difficulties with the documentation for this hearing, and the way she dealt with documents to which she was referred by Mr Serr in the course of questioning, that she is not someone who finds it easy to take in documents of any length. She does not pay close attention to written text and does not react to or refer to words on a page in the way that some people do.

Her ‘Grounds for Consideration’ submitted to DBS and to the Upper Tribunal as Grounds of Appeal were drafted by a solicitor. Although the appellant was content to affirm the truth of the document at the start of giving her evidence, that document is not expressed in her words and although she was given time to re-read it before affirming it, we gained the impression that she was not really taking it in.

The appellant is also not always accurate in her speaking. For example, at the start of the hearing when we were asking her about the video evidence she wished to submit, we had to ask several times to work out how many videos there were and of what length. She said one and then four when in fact she meant three; it took some time to achieve clarity. A similar process of the appellant saying one thing, and then another, happened in relation to a number of questions that Mr Serr asked, for example in relation to the number of other people working in the home on the night of 27 September 2022.

In some cases, these sorts of issues might lead to us finding that a witness was not credible or, even, dishonest. However, in the appellant’s case, we considered that this was not the explanation. Rather, it seemed to us that the appellant is an honest witness who has some difficulties with word finding so that she does not always say what she means or mean what she says. Understanding what she means and what constitutes her genuine recollection requires careful attention from listeners and piecing that together with the documentary evidence. Sitting as a three-person panel was helpful in this respect as we were able to compare our understanding and impressions and we feel confident that our combined conclusions about the appellant and her evidence are robust.

We also need to make some observations about the documentary evidence and the other people involved in the evidence in this case from whom we have not heard.

The documentary evidence comprises the records of the employer’s internal disciplinary proceedings. Those proceedings followed a standard process of obtaining statements from other staff (AG, JO and SS), an invitation to an investigation meeting (19 October 2022, p 83) an investigation meeting with the appellant (21 October 2022; p 80 of our bundle), an investigation report prepared by the investigating manager (p 77), an invitation to a disciplinary hearing (1 November 2022, p 75), a disciplinary hearing (7 November 2022, p 70), and notice of dismissal (14 November 2022, p 66), following which the employer referred the appellant’s case to DBS. Meanwhile, the appellant appealed and an appeal hearing was held on 14 December 2022 (p 94) and the outcome notified on 23 December 2022 (p 90). Her appeal was dismissed, but (in a departure from the standard process) her employer sought by letter of 23 December 2022 to withdraw the referral to DBS.

We have before us written statements from three of the appellant’s colleagues (her manager AG and two ‘peers’ SS and JO). We also have notes of meetings prepared by others who were involved in conducting the employer’s internal disciplinary process. The internal process itself did not involve any questioning of witnesses (other than the appellant). While we are sympathetic to DBS’s normal practice of not calling witnesses in cases such as this, and understand that it may be seen as an unreasonable intrusion in the lives of other witnesses for them to be called, so far as we are aware they have not even been asked to attend. Witness orders could have been sought if witnesses were unwilling, but that has not happened. It does of course leave us in the position where, in case of conflict between the appellant’s evidence and a document or statement for which another (potential) witness is responsible, we in general give more weight to the appellant’s evidence than to the evidence of (potential) witnesses whose evidence (unlike the appellant’s) has not been given on oath/affirmation or tested by questioning.

There are further specific reasons why we place less weight on the written statements of AG, SS and JO than we might.

As to AG, she found the appellant sleeping on the night of 27 September 2022. She provided a typed statement for the disciplinary process. She did not normally do sleep-in shifts, but was doing one that night apparently specifically in order to check whether staff were sleeping as there had (according to her statement) been a safeguarding referral that mentioned staff “sleeping in the lounge and the conservatory”. Her statement indicates that she considered that, having caught the appellant sleeping on one occasion in the lounge, she had identified the ‘culprit’ referred to in the safeguarding alert. (We note here for clarity that there is no evidence that the appellant was at any point sleeping in the conservatory. The only evidence that the appellant had previously slept in the lounge on one occasion is that of JO and SS (as to which, see below).) AG’s statement says that on finding the appellant she “stood over her for 5 minutes then left to get my phone I had planned to take a picture as I knew MG would deny she was asleep”. AG’s statement contains no explanation for why, despite apparently being on a sleep-in shift to make checks, she: (i) did not wake the appellant up having found her; and (ii) did not return to take a picture. These omissions are significant and they diminish the credibility of her statement. We return to these points in our findings of fact below.

The appellant’s colleagues JO and SS made statements purporting to be about the night of 27 September 2022, and accepted as such by the employer at the disciplinary hearing stage, but the employer acknowledged at the appeal stage that these could not relate to 27 September 2022 as neither member of staff was on duty that night. It is further evident that their statements relate to an incident where they were unhappy because the appellant had challenged them because they were neither of them doing what they were supposed to be doing. Their statements may therefore have been motivated by a desire to undermine the appellant. For all these reasons, we place less weight on their statements.

We also note at this point that although the invitation to the first investigation meeting (p 84) stated that the appellant would be provided with the (non verbatim) notes of that meeting and asked to confirm their accuracy, there is no documentary evidence of her having been given that opportunity or having done so. The notes are evidently not a verbatim account of a meeting but appear to be retrospective in many respects, written as if the meeting was in the past and with interpolations that appear to be the notetaker’s recollection or opinion rather than a record of the meeting (for example the opening paragraph on p 80, the observation in the sixth bullet point on p 81 that what the claimant had said about timing was “not true” and the bracketed “she said for an hour” on p 81 in relation to the time for which the appellant was sleeping).

When Mr Serr put points to the appellant from the notes of the investigation meeting, she seemed genuinely surprised by their content. For example, Mr Serr put to the appellant that in that meeting she had agreed that by going to sleep she had “intentionally put the people we support at risk” (p 81). The appellant denied this in evidence to us and as it is inherently unlikely that the appellant would have agreed to such a statement given the rest of her evidence. All these factors lead us to put less weight on the notes of the investigation meeting than we would otherwise have done.

The notes of the disciplinary and appeal hearings appear more reliable, and do appear to have been reviewed by the appellant during the disciplinary process, but in reading those notes, we bear in mind our observations above about the extent to which the appellant pays detailed attention to written documents, and as to the appellant’s speaking style.