[2024] UKUT 443 (AAC)

On the 16 August 2021, Care Assistant, JT, reported that on or around the 12 August 2021, when he and JE were supporting PF with personal care JE failed to follow the correct moving and handling support for PF. JT stated that JE refused to use the hoist when supporting PF to go to bed and that she physically lifted PF from her wheelchair to her bed. PF is not able to weight bear. It is clearly stated in PF’s care plan that PF must be supported with all transfers with a hoist. JE was suspended on the 16 August 2021 pending an investigation.

JE was interviewed the same day during which she admitted to not following the resident’s care plan and that she had physically picked PF up and put her on to the bed.

The investigation was concluded on the 25 August 2021 with the recommendation to proceed to a disciplinary hearing, which was held on the 16 September 2021 where the allegations where considered proven and JE was dismissed.

The Appellant, by way of an appeal lodged on 7 November 2022, challenges the Respondent’s decision of 8 August 2022 whereby the Respondent decided to include the Appellant's name on the Children's Barred List and the Adults' Barred List.

UT Judge Jacobs gave permission to appeal on 23 May 2024 in the following terms:

“5.

I have given permission under section 4(2)(b) on the ground that DBS may have made mistakes of fact. Mr Khan disclaimed any reliance on mistake of law under section 4(2)(a).

6.

Mr Khan accepted that JE had not used a hoist, as required by the service user’s care plan. She denies lifting the service user alone, saying that she did so jointly with JT. She denies using a headlock. She denies having handled service users in the same way previously. She says that she was confused by the service user’s new chair. Mr Khan drew attention to the absence of previous complaints, JE’s training record (page 47), and the absence of any investigation into the allegation of rough handling. Taking those points as a whole, I consider that there is a realistic prospect of the Upper Tribunal making findings to justify at least referring the case to DBS for reconsideration.”

We had a 115-page bundle of evidence, a 79 page Authorities Bundle and a skeleton Argument from both the Appellant and Respondent. The Appellant also gave evidence.