Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 250 (AAC)

Fecha: 22-May-2024

The evidence before the Upper Tribunal

The evidence before the Upper Tribunal

JW provided a witness statement, dated 20 December 2023, with several “exhibits”; she also gave oral evidence at the hearing, and was cross examined by Mr Tabori.

10.

On the day before the hearing, JW’s solicitors submitted a witness statement (dated that day, 21 May 2024) of Lisa Fletcher, who had worked at the same care home as JW, and in particular had worked with Miss X there. We were told that the reason for the lateness (case management directions had required details of the evidence JW intended to adduce, by late December 2023) was the difficulty in getting hold of Ms Fletcher.

11.

We decided, at the hearing, to admit Ms Fletcher’s late evidence, and permit her to give oral evidence (via video link); our natural concerns about unfairness to DBS by reason of “ambush” were assuaged by the fact that Ms Fletcher’s statement largely repeated material from her already in the bundle (exhibits to JW’s witness statement included emails from Ms Fletcher of 6 and 12 December 2023); in substance, the “last minute” development was not the evidence itself, but the fact that Ms Fletcher was making herself available to give oral evidence, and be cross examined; overall, it seemed to us fair and just to allow this to happen, so that relevant evidence could be fairly tested.

12.

The documentary evidence in the bundle included:

the barring referral form submitted by the management of the care home to DBS;

a 1-page hand-written document dated 14 June; this was signed by NJ (another care worker in the home) and said:

“5.30
(roughly) I came to check-in with the wake night (JW) in case of any issues, only to discover JW holding the door to keep Miss X in her room. I did ask JW about it. Her answer was she didn’t want to deal with Miss X till day staff arrived. Miss X’s behaviours became negative as a result. I did prep her meds and feed as requested but I had to try and settle her from agitation. I am blowing the whistle now as JW’s dismissive attitude to Miss X has turned to controlling acts [the next words are difficult to make out] on edge as Mr Y may be affected by this”

1-page typed investigation minutes, dated 14 June 2022, signed by NJ as “employee” and by the care home’s service manager as “investigator”; this says that when NJ went downstairs at the home at 5.30 “to check if there were any issues overnight”, he saw JW holding Miss X’s door and asking Miss X “to go back to sleep until day staff come in”; when questioned by NJ, JW reportedly said: “I can’t be dealing with Miss X until day staff arrive”

1-page hand-written document dated 15 June 2022 and setting out a list of 12 things that Miss X had “said” or “stated”; it was signed by named individuals as “a true statement of Miss X’s wishes”; it include that Miss X had said the following:

(i)

JW had held the door lots of times/more than 10 times

(ii)

JW held the door for some time – more than 1 hour

email exchange of 14 June 2022 between the care home service manager and JW, describing the incident that morning with Miss X, as follows:

“Miss X woke up at 6 pm, I [JW] went into her and said to her she can’t get up as day staff are not here. With that I stood outside her door and didn’t let her out. NJ came down and I said I would only let her out if NJ looked after her.
NJ proceeded to go into Miss X, he gave her feed and medication in her wheelchair. NJ came back to the lounge with Miss X in her wheelchair, Miss X was not happy she tried to kick the lamp over. I said to Miss X ‘I don’t like working with you because you are violent and unpredictable’, I went outside as I don’t like being abused by Miss X
NJ tried to get us both talking, I put her hair in a ponytail. She proceeded to kick at me in my lower back. No incident form was completed. …
I left at 6.45 when day [staff] arrived”.

hand-written investigation meeting minutes (4 pages), dated 15 June 2022; this had notes of 11 questions asked of JW by the care home’s service manager as “investigator”; the 10^th and 11^th of these are quoted at paragraph 27 below

a hand-written account by JW, dated 15 June

the care home service manager’s “internal investigation summary report” dated 16 June 2022 (2 pages)

disciplinary meeting minutes of 22 June 2022 (4 pages) signed by JW as well as care home’s “registered manager” as “chair”; in this, JW is recorded as saying that she did not work with Miss X; she did not understand sign language; she was not allowed to change Miss X’s pad, and that Miss X always wants her to; that Miss X became agitated when JW cannot change her pad, which results in Miss X kicking and hitting. It records JW saying that she felt it was a “no win” situation as between her and Miss X, as she was not able to change her pad; she did not want Miss X to get hurt but did not know how to pacify Miss X. It records JW as saying she had not read Miss X’s support plan as she had always been told she was not there for Miss X (she was there for Mr Y). It records JW as saying that incidents in which she had held Miss X’s door closed had occurred about three times

notice of termination of employment for gross misconduct, dated 24 June 2022

Miss X’s “communication passport”, created on 16 November 2021 (15 pages); it explains that a “communication passport” is a “simple and practical guide to understanding and supporting a person’s communication”

offer of employment letter to JW, dated 23 December 2019, for the role of support worker; and a job description

an undated 4-page representation letter from JW

DBS’s “barring decision summary” document. This found:

(i)

definite concerns with respect to “callousness/lack of empathy” and to “poor problem solving/coping skills”

(ii)

some concerns with respect to “irresponsible and reckless”.