[2024] UKUT 269 (AAC)

The question in this appeal is whether DBS made mistakes of fact in its core factual finding that TJO neglected the VA by failing to complete the welfare checks she was employed to carry out and/or failing to inform her employer that she had not completed these.

We find (and this was not disputed) that the “welfare checks” for which TJO was responsible involved her visiting the VA twice a day, morning and evening, to check that he was okay; and that it was part and parcel of these checks that TJO inform the employer if, having made the visit, she had found the VA not to be “okay” – or that she had been unable to make contact with him.

We also find that TJO made the twice-daily visits, as she was supposed to, on the Saturday, the Sunday, and the Monday morning in question. She made contact with the VA, and found him to be “okay” (in the sense of not seriously unwell or otherwise in a dangerous situation) on the Saturday morning. However, on the Saturday evening, on Sunday, and on Monday morning, TJO was unable to make contact with him: he did not respond to her knocking at the door; and TJO did not attempt to look in through the front window. It is common ground that TJO did not convey to her employer, by phone, email, text or other means (such as making a note in the employer’s electronic logging in system), the fact that she had been unable to make contact with the VA, on the Saturday night, the Sunday morning, or the Sunday night. (We do not accept TJO’s evidence that it was not possible for her to make a note of such things on the employer’s electronic system – it is clear from the 20 January 2021 meeting transcript (albeit in a section concerning a service user other than the VA), that this was possible (see page 42, at the top)).

There is reason to be wary of TJO’s uncorroborated evidence, given that her email to W on the Monday morning was, on its face, untrue (TJO’s explains this by saying that she was describing there what had happened two days earlier, on the Saturday morning). But even if we accept her relevant evidence at face value – that she tried to phone the office, or W, each time she failed to make contact with the VA over that weekend, and that it was not uncommon for the VA to be “out”, or to not answer, when she paid her visits – we nonetheless do not think that DBS made a mistake in its core factual finding. For TJO to have failed to make contact with the VA, and failed to follow up with an email or a text or a note on the internal system, once, on the Saturday night, would be one thing; but for her to do the same when the VA could not be contacted the next morning, and then do the same again when the VA still could not be contacted on the Sunday evening, does, viewed in the round, amount to her neglecting her core duty – to check the VA was okay and, if he was not, or if he could not be contacted, to tell her employer. By the third successive instance of her not making contact and being unable to reach W or the office by phone, TJO ought to have been sending “urgent” emails or texts, or putting such messages on the internal electronic system, and/or considering other ways of checking on the VA, such as looking in through the front window, as the police had done (even if this meant dealing with the long grass, and reflections, which TJO says were impediments to looking through that window).

Whilst we have no particular reason to doubt TJO’s evidence about the wider context – in particular, her efforts in the past to alert her employer to the terrible conditions the VA was living in, and her kindness in buying him food with her own money – we do not consider these points relevant to the question of whether DBS made a mistake in its core factual finding, being a discrete point about TJO’s conduct on the Saturday, Sunday and Monday in question.