[2025] UKUT 008 (AAC)

Most of the allegations on which the barring decision was based, namely allegations 2 to 6, were of the ‘did not’ variety, i.e. omissions to act – did not seek medical attention, did not report the fall in accordance with procedure, did not disclose the fall to the NOK, did not disclose the circumstances to the manager and did not accurately record information on the service user’s file. On the facts, OS effectively conceded that he had not taken the necessary steps in each case. But Mr Atanda’s submission was that any such admissions by OS were irrelevant. Rather, he argued that in each instance the duty fell on Kim to take the required steps. This was, he said, because Kim was the supervisor, and OS was under her supervision, and so it fell to her to take the lead, while OS was merely shadowing her. In short, he was not responsible for these omissions because he was being supervised at the time.

We do not accept that submission. We accept that OS was still on probation with the care agency. However, Kim was not his senior, she just had more experience than OS had. However, they were both employed at the same grade (senior care assistant). Nor do we accept that OS was working under her supervision – he had been through all the necessary induction and training stages and was approved for solo working. Even if he was operating under Kim’s supervision – which we do not accept – it remains the case that they each had a personal responsibility to act in a professional manner.

Mr Atanda also emphasised what might be described as several mitigating factors – OS had only recently arrived in the UK, his training had all been on-line, he was still on probationary employment, he had just finished a night shift and was tired, this was the first time on which he had cared for Edward and – so he said, and we are prepared to accept in the circumstances as credible – he had not seen Edward’s care plan. OS had also worked for another agency for 9 months after the incident and before he was barred in the course of which there were no concerns expressed about his conduct. However, none of these factors points to any mistake of fact in the ‘did not’ allegations 2 to 6 inclusive. In addition, they are for the most part matters which were taken into account by the DBS in its Barring Decision Process document and/or final decision letter. Further, and in any event, they are all issues which go to the question of appropriateness, in respect of which the DBS has an exclusive and appeal-free jurisdiction.

We have already dealt with allegations 1 and 7 and repeat that they disclose no mistake of fact.

It follows that our conclusion is the mistake of fact grounds of appeal are not made out.