[2024] UKUT 427 (AAC)

Judge Stout granted permission in this case following the appellant renewing her application for permission to an oral hearing (permission having been refused on the papers by Judge Fitzpatrick). In granting permission, Judge Stout observed as follows. We have added in to these observations the numbering of the grounds as subsequently adopted by DBS in its response to the appeal:-

19.

I consider it arguable that DBS has erred in law and/or in fact in concluding from this evidence that the appellant has engaged in relevant conduct in relation to vulnerable adults and/or in concluding that she poses a future risk to vulnerable adults and/or in concluding that the conduct was sufficiently serious as to render barring a proportionate response bearing in mind the extent of the interference with the appellant’s Article 8 ECHR rights. The arguable errors arise in particular from the failure to take account of and/or to afford appropriate weight in the Article 8 proportionality assessment to the following matters:-

[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.

[Ground 2] - Risk of harm to self or others is a reason why deprivation of liberty by locking a resident in their room may be justified. DBS has failed to take account of or explained the basis on which it rejected the appellant’s case that she was trying to keep residents safe through her actions and that, if rooms had not been locked, there may have been a greater risk to residents.

[Ground 3] - As mentioned in the CQC report, there is a process for authorising deprivations of liberty in a care home in relation to an adult who lacks capacity by way of application to the local authority under the Deprivation of Liberty Safeguards (DoLS) regime. The appellant as a junior member of care staff is unlikely to have been responsible for that sort of decision, and there was no evidence before DBS that she was responsible for that decision.

[Ground 4] - DBS has failed to take into account and/or resolve the inconsistency in the facts as to how many residents had been locked in without consent. The CQC report says seven, but the employer’s case at the disciplinary hearing was four (p 41). There is also minimal evidence about the individual circumstances of the particular residents involved or the actual risk of harm that was posed to each of them.

[Ground 5] - The CQC report provides ample evidence of poor management practice at the home, which is potentially a significant mitigating factor in the appellant’s case. There is no evidence, for example, that management had provided guidance to the appellant about when doors may be locked or how that should be authorised.

[Ground 6] - No reference has been made to the anonymous statement at p 39 that contradicts the whistleblower in response to whom CQC carried out their inspection, indicating that there was no general practice of locking residents’ doors overnight.

20.

The second allegation related to verbal abuse of residents. I consider it arguable [Ground 7] 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.

21.

In her UT10 appeal form, and accompanying letter, and at this hearing, the appellant argues that she does have empathy for the people in her care and that she does not pose a risk to vulnerable adults in future. I was impressed with the appellant at this hearing; she came across as a kind and caring individual. I consider it arguable [Ground 8] that DBS erred in fact or in law in inferring from her written representations, which were written with a view to defending herself from charges of misconduct in respect of which the evidence is, in my judgment, weak (see above), that she lacks empathy and/or poses a significant risk of harm to vulnerable adults in future. It is also relevant in this respect that the principal conduct relied on is locking residents in rooms, which is conduct that it is inherently improbable someone would repeat once they understand, as it appeared to me the appellant now does, that locking a resident in a room without a DoLS authorisation in place is a dismissable offence.

22.

Finally, as to the finding that the appellant was hostile to the CQC inspector who visited, I am not [at present] persuaded that this is a material element of DBS’s reasons for its decision, but if it is then I consider it arguable [Ground 9] that DBS has placed too much weight on it in the proportionality analysis as it has arguably failed to take into account the appellant’s explanation for her hostility which was because she perceived the inspectors as being hostile to her, genuinely doubted whether she should let them in at 5am without phoning CQC to check the authenticity of their ID cards and had a need to go to a particular toilet at the time that they arrived for medical reasons.