[2024] UKUT 427 (AAC)

DBS submitted in response to this ground of appeal that it had made no error, but that in any event this was not a material element of the decision. We agree that it is not a material element of the decision. It was a make-weight referred to by DBS in the SJP as part of its reasons for concluding that the appellant had verbally abused residents, but that part of the decision has fallen away anyway for the reasons set out at Ground 7. On our reading of the decision letter it does not play a material role in the finding that the appellant lacked empathy or in the reasons why DBS considered it proportionate to bar.

However, as the appellant’s reaction to the CQC inspectors may have some bearing on proportionality, we make the following observations: first, the final decision letter is wrong to say that “a number of credible witnesses state that it was [the appellant] who was hostile”. There are in fact no witnesses who state this, all we have is a second-hand account from CS who was not present and the appellant’s own evidence. Secondly, there is a limit to the weight that can be given to anyone’s reaction to someone calling unannounced at 5am in the morning. Thirdly, we accept the appellant’s evidence that she genuinely thought she ought to phone to confirm the CQC inspectors were who they claimed to be, that the inspectors adopted a hostile approach to staff on arrival because of the reasons for their visit, and that they ordered the appellant to stand in a particular place at a time when she needed to go to the toilet for medical reasons. We consider that all contributed to creating a degree of tension that provides some mitigation for the appellant’s hostile reaction.