[2024] UKUT 250 (AAC)

in a finding of fact on which it is based (see PF v DBS [2020] UKUT 256 (AAC) at [39]: “There is no limit to the form that a mistake of fact may take. It may consist of an incorrect finding, an incomplete finding, or an omission. …”); or

on a point of law, in that it is failing to take into account something material to the decision.

Whichever way one looks at it (mistake of fact or of law), it seems to us the key question is materiality – might the decision have been different, if the omitted matter had been included in the findings of fact or in the reasoning - or was the decision bound to have been the same?

DBS was aware of JW saying that she could not change Miss X’s pad: (see page 110 of the bundle, last full paragraph); however, DBS did not understand why this was: see page 112, third full paragraph: “It is not stated throughout the evidence why JW could not change her pad, however, her employer does not appear to have disputed this with her”. In contrast, we have found (see paragraph 34 e above) that the reason for this was that two female carers were required to change Miss X’s pad. In our view, it was DBS’s lack of understanding on this point that led it to doubt JW’s credibility (see page 111, first full paragraph) as to the reason for Miss X waking during the night: in contrast, we have found (at paragraph 34 d above) that the reason was that Miss X wanted her pad changed.

DBS was also aware of JW saying that her role was to look after Mr Y (only); but, on page 111, DBS twice state that it did not appear “plausible” that JW “never” expected to provide “any” care to Miss X, “being the waking night staff member”. DBS went further, finding (on page 114, bottom paragraph) (based, it seems, on the care home management asking JW in the investigatory interview whether she had read Miss X’s care plans) that JW was “expected” to assist Miss X during the night. In contrast, our findings indicate a state of management dysfunction at the home (see paragraph 35 above) whereby the one person available to help Miss X during the night when she wanted her pad changed, could not do so, and was not equipped to deal with Miss X.

DBS found “no evidence that any other staff struggled with Miss X’s behaviour” (page 115, last full paragraph). In contrast, we find (see paragraph 22 above) that Miss X’s behaviour could be very challenging; it was not JW alone who found Miss X’s “behaviour” difficult.

DBS interpreted the final entry in the note of Q11 in the “investigation meeting minutes” of 15 June 2022 as showing that JW had “stated you were aware Miss X was known to attempt to pull out her PEG tube when distressed, and that she had tried to do so previously when you had held the door closed” – this is how it was put in DBS’s decision letter; in the “barring decision summary”, DBS said that JW “admitted that on a previous occasion, she knew that Miss X had admitted to pull out her PEG tube in response tobeing unable to leave her room.” DBS went further on pages 121 and 122, stating that JW “witnessed Miss X attempting [to pull out her PEG tube] on one occasion and continued to hold the door shut” (emphasis added by us in the foregoing quotations). In contrast, we find (see paragraph 29 above)that the note of Q11 is weak evidence and cannot support the inferences DBS draw from it; and whilst Miss X was known to try to pull out her PEG when upset, the note of Q11 does not comprise an “admission” by JW that this had happened specifically because of an instance of JW holding her door closed; and, more generally, JW’s motive in holding the door closed was to de-escalate the situation (see paragraph 26 above).

DBS refers to JW’s failure to “escalate” to her employer, the lack of clarity about her responsibility for Miss X. In contrast, we have found (at paragraph 35 above) there to have been a state of management dysfunction regarding Miss X’s care when she woke at night; that situation would have been perfectly evident to the management of the care home; it did not therefore call for “escalation”.