Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 427 (AAC)

Fecha: 29-Nov-2024

Ground 7: Finding (ii): verbal abuse of residents in her care

Ground 7: Finding (ii): verbal abuse of residents in her care:

Ground 7: I consider it arguable that DBS erred in law and/or in fact in concluding that this allegation was proven. There is no evidence in the bundle that the appellant was verbally abusive to residents. There is no statement setting out this allegation, or identifying when it occurred or what the nature of the abuse is said to be. The only evidence is the appellant’s response to the allegation, which was to the effect that she accepted she was on occasion “firm” with residents when they were being “very nasty and unwilling to co-operate”. There is nothing wrong in principle with a member of staff being “firm” with a resident who is exhibiting challenging behaviours. There is arguably no evidence that the appellant conducted herself in a way that was harmful to a resident.

87.

In its response to the appeal, DBS asserted that its conclusion that the appellant verbally abused residents was not in error because it was based on the appellant accepting she was occasionally “firm” with residents. At the hearing, Mr Ryan took the Tribunal to the SJP by way of further explanation as to DBS’s reasoning in this regard.

88.

Reading the SJP, it seems to us that there was a failure by DBS to give due consideration to the evidence regarding verbal abuse. DBS refers to the whistleblower’s allegation that there had been shouting and swearing at residents (by unnamed persons on unnamed dates and in unspecified terms) as if this is capable of constituting evidence that the appellant personally behaved in that way. In our judgment, it is not remotely capable of constituting such evidence.

89.

DBS then refers to the appellant’s locking of residents’ rooms as if that is evidence demonstrating a propensity to verbally abuse residents when in fact there is in our judgment no rational connection between those two very different types of conduct.

90.

DBS then concludes that “being very firm … could constitute verbal and emotional abuse”. We find this to be an irrational conclusion in this case. The expert panel members agree with the judge’s initial view that there is nothing wrong in principle with a member of staff being “firm” or even “very firm” with a resident who is displaying challenging behaviours. In the absence of any more specific evidence about what the appellant said or did on any particular occasion, DBS’s conclusion that this amounted to verbal and emotional abuse was perverse. It was also ‘wrong’. It was an error of fact and law.

91.

DBS submits that if it did make an error regarding this second finding, it was not material. We disagree. The final decision letter relies significantly on this finding. It forms part of DBS’s reasoning in relation to its conclusions that the appellant lacks empathy and has an irresponsible approach to her role.