Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 126 (AAC)

Fecha: 18-Abr-2024

Conduct

(1)

Conduct

This case concerns an incident on the evening of 26 August 2020 at the residential home, while she was on shift there as a support worker. Three children lived there. One of them was a boy of nearly 13, L. He had ADHD, oppositional defiant disorder and ASD.

On the evening in question, the appellant was on shift with three other colleagues, AD, DJ and PR. It appears to be common ground, and we accept in any event, that, having returned to the home from a trip to the cinema and McDonald’s, L started spitting water at the appellant. This took place in an open area off which was, among other things, an office. This open area was referred to variously in the evidence as “the lounge”, “the lounge area“, the reception”, “the reception area” and “reception”. L was taking the water from his water bottle. The appellant told us, and we accept, that she took the water bottle out of L’s hand. We do not have the appellant’s contemporaneous account written in the hour or so that followed, when her memory was most fresh. She told the police three and a half months later, on 7 December 2020, that the child had then punched her and kicked her. The appellant’s solicitors said in their 18 March 2022 letter to the DBS, some 19 months after the incident, that L had punched the appellant and tried to kick her. By the time of the 28 February 2024 hearing before us, three and a half years after the incident, the appellant’s recollection appeared less precise; she recalled the kicking rather than the punching, although she did also refer at the appeal hearing to L hitting her. We accept that L assaulted the appellant, by kicking her and/or by punching or hitting her. We accept too that he had already assaulted her (as Mr Serr accepted) by spitting the water at her. We find that, when L assaulted the appellant by kicking her and/or by punching or hitting her, the appellant then screamed. We accept that, as appears from the Serious Incident Report (and accepted by Mr Serr), the part of the incident we have described so far occurred (i) out of AD’s sight and before AD came out of the office, and (ii) out of DJ’s sight. We find that, as is also accepted, it was also out of sight of PR; he had gone off-site to collect another child. We find that AD came out of the office on hearing shouting.

We find that the rest of the incident played out as set out in the following extract from the Serious Incident Report at pages 54 and 55, adduced by the DBS. We accept the entirety of this extract except that we make no finding as to whether it was AD who asked the appellant to write it down, given that the appellant says BD was the one who asked. Where this extract gives direct speech quotations, we find only that those things were said; we make no findings as to their truth—

“AD was in the office stock checking the medication and heard shouting from the reception area from [L] and [the appellant] (Agency staff). AD went immediately out into the reception area. [L] was standing near the front window of the reception area near the radiator and [the appellant] was standing in front of [L]. AD saw [the appellant] swinging her arms in an over arm motion in the direction of [L] connecting with his body (chest and shoulders)

DJ hearing the shouting immediately came out of the dining room and straight into the reception asking what was going on, unaware that PR had left the building to pick up young person SG.

[L] was shouting at the top of his voice and was standing in front of the chair near the radiator by the snug window, his t shirt soaking wet. [L] was raging, puffing up his chest and clenching his fists calling [the appellant] a fucking cunt and black bitch. [The appellant] was standing not too far away from [L]. [L]’s drinks bottle was lying empty on the carpet by [L]’s feet.

AD was trying to calm [L] down. DJ stood between [L] and [the appellant] asking [L] to calm down and tell her what was wrong. [L] said “that fat bitch has thrown water all over me and I’m going to punch her right in her fucking face the bastard” [L] was trying to get to [the appellant] by trying to barge past DJ, his fists were clenched and face was red with rage. AD and DJ asked [L] several times to calm down but he continued to try and get to [the appellant].

[The appellant] stood behind DJ, she said something that DJ couldn’t quite make out but AD heard [the appellant] say “if he hits me I’ll hit him back I’m not scared of him” AD guided [L] away with a half shield to his room. DJ followed and asked [L] again to calm down. He immediately went back into reception, calling [the appellant] a Black Cunt and that he was going to punch her.

[L] opened the front door and started to walk up the drive. AD offered to go for a walk with [L] to help him calm down which he refused and also refused the offer of a dry t shirt instead taking off his soaking wet one throwing it on the floor.

[L] started pacing around the drive. [L] picked something up, like a small stone, off the drive and threw it through the open door where [the appellant] was standing. [The appellant] then closed the front door and sat on the sofa in the reception area.

[L] then started to kick the front door continuing to threaten and swear at [the appellant] calling her a fucking fat black bitch and black cunt who he was going to “get” He asked if the car in the drive was [the appellant’s] as he was going to destroy it. DJ told [L] no it was hers.

[L] went to the side window and was punching it with some force. He then made a racial slur towards [the appellant] calling her a Fucking Nigger. DJ told [L] to stop it as he could be arrested by saying the N word. [L] said he didn’t care. DJ asked AD to ask [the appellant] to leave as it wasn’t helping that [the appellant] was sitting by the window in reception just staring out at us whilst we were trying to deal with [L].

AD went into the house and asked [the appellant] to go into the sleeping in room with a pad and pen and write down what had happened. DJ stayed outside with [L] who then facetimed his mum on his mobile. [L] told his mum that a member of staff had hit him and that he could call the police and get her sacked.”.

Acting Assistant Team Manager, BD, arrived on scene later the same evening. He spoke to the appellant alone in a separate room. He later alleged that the appellant had admitted to him in that conversation that she had hit L. We deal with that allegation in the analysis part of this decision.

BD sent the appellant home.

10.

The police attended the home the day after the incident, according to BD’s report dated the day after the incident. According to that report, the police spoke to AD and to L. The police later said they had no formal statements from anyone and that the other staff member, which must have been DJ since PR had not been a witness, did not wish to give a statement.

11.

At some point, DJ of the home had a meeting with TM of the home to brief him about the incident. TM is described on page 58 as “Team Manager / Assistant”. He appears to be senior to DJ, AD, PR and BD. DJ and AD initialled the undated debrief note of that meeting (pages 60 and 61).

12.

The appellant attended a voluntary interview with the police on 7 December 2020. The child did not wish to support a prosecution against the appellant. The appellant did not want charges brought against him; she cited his vulnerability.

13.

A Local Authority Designated Officer Joint Evaluation Meeting was held on 3 March 2021 (pages 106 to 110). It was attended by TM (said to be Team Manager at the home), BD (Acting Assistant Team Manager at the home, who arrived on scene the evening of the incident), DC Annmarie Brown of Northamptonshire Police, Andy Smith (Designated Officer) and Nicky Mitchell (minute taker). BR, the business manager of the employment agency which had supplied the appellant to the home, gave apologies and did not attend.