Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 427 (AAC)

Fecha: 29-Nov-2024

Ground 1

Ground 1

The CQC report confirms at p 55 that the home was short-staffed on the occasion in question and that managers had not complied with the regulation regarding deployment of staff. This supports the appellant’s case that there were reasons why keeping residents safe overnight may have required rooms to be locked. Even if eight rooms were locked, that still left four staff (only three of whom provided personal care) with 38 residents to look after so the comment in DBS’s decision letter “You have not explained how or why you were so busy when the residents were locked in their rooms” is arguably unjustified.

72.

In response to this ground, DBS argues it has taken into account all relevant factors and no irrelevant factors and that it has not made any mistake of fact. DBS points out that in the SJP and final decision letter it has referred to the fact that the home was short-staffed on the night in question. DBS in its response argues that CQC had identified the locking of rooms as a deprivation of liberty and a health and safety concern and that there was no suggestion by CQC that inadequate staffing or safeguarding of residents was an explanation for the locked rooms. DBS notes at paragraph 26b of its response what CQC says about staffing numbers that night and adds that “there is no further comment on adequate staff-service user ratios” in the CQC report. DBS submits that its comment that the appellant had “not explained how or why you were so busy when the residents were locked in their room” was justified in context.

73.

We find that DBS has made three specific errors of fact and/or law in its consideration of this aspect of its decision as follows:-

It has failed to take into account the relevant fact that CQC did not speak to the appellant or LS and did not therefore have the opportunity to consider their accounts of why residents were locked in their rooms. As such, it does not assist DBS to point out that CQC had not identified these as being possible justifications for locking rooms. So far as CQC was concerned there was ‘no explanation’ for why rooms were locked because managers had been unable (or unwilling) to provide any.

DBS has failed, even in response to this appeal, to recognise that the CQC report does make “further comment on adequate staff-service user ratios” in addition to noting that they were that night short-staffed. As we have noted, CQC was highly critical of management’s care plans and risk assessments which had not been kept up to date and therefore could not in CQC’s view provide a proper basis for an assessment of the required staffing levels. This was a relevant factor that DBS left out of account.

As such, we consider that DBS’s comment that the appellant had “not explained how or why you were so busy when the residents were locked in their room” is simply wrong as a matter of fact. The appellant had explained that. She had explained that they were short-staffed, and the extent to which they were short-staffed makes it obvious that the three carers would likely be very busy. That is especially so given that those who were locked in their rooms without their consent were those who were not able to call out for or otherwise demand attention and who thus needed carers to go in and check whether they were all right at intervals whether doors were locked or not (and it has not been suggested that there was any failure by the appellant and her colleagues in that respect). By locking doors, the appellant and her colleagues were left with those residents who were wandering/active and demanding attention.

74.

It is convenient to add here, as it is relevant to our assessment of proportionality below, that, as the appellant stated in her representations to DBS (p 72), the home was frequently short-staffed; 60% of the time was the appellant’s evidence at this hearing, which we accept. As such, it is likely that the situation that led to doors being locked that night did occur relatively frequently and that, as CQC noted in the SJP (p 101), “the date in question was not the first occasion it happened”. While DBS regarded the fact that this was not the first occasion as further evidence of culpability on the part of the appellant, we consider that this is in fact a neutral factor in the evaluation because it is clear that the same difficulties that led to the appellant and LS locking doors on the night in question would likely have been present on other nights.

75.

We also add that the fact that CQC found someone calling out from behind a locked door does not in itself indicate any failure of care: at the point that CQC inspected rooms, they had told the appellant and LS to stand downstairs by the front door and thus taken them away from their work. The appellant’s evidence was also that the person calling out was likely to be resident M who asked for her door to be locked; the CQC report does not contradict this.