[2024] UKUT 277 (AAC)

To decide whether DBS had made a mistake in making core factual finding a., we had to weigh conflicting evidence.

On the one hand, there was HA’s evidence, that there had been no sexual intimacy between him and AR.

On the other hand, there was a detailed account of sexual intimacy between them, in the document recording the ‘investigatory interview’ with AR on 25 July 2022. For shorthand, we shall refer to this as “AR’s account” of what happened.

On the face of it, AR’s account is credible and reliable: it is detailed; it was documented not long after the events in question occurred; and aspects of it were corroborated by HA’s own evidence (such as, the fact that AR’s mood was low at the time that he had a conversation with HA; and AR’s good relationship with HA).

HA presented multi-layered arguments as to why AR’s account is not to be believed. The first layer of argument is that the account is itself fabricated i.e. AR himself never gave the account of sexual intimacy with HA that he is recorded as having made on 25 July 2022. In our view, it is improbable that AR’s account was fabricated in this way:

In our view, therefore, it is distinctly improbable that AR’s account was fabricated; on the balance of probabilities, AR’s account was given by AR himself, and not fabricated by HA’s employer.

HA’s second layer of argument against AR’s account is that, even if it was genuinely AR’s own account, AR’s mental state was such that his account was not reliable: there is evidence, particularly that of GLW, that AR was something of a fantasist, and that he would make things up as a way of attracting attention to himself; HA’s arguments suggested that this could be connected to the neurological condition for which AR was in the centre. We find it improbable that AR’s account was “made up” by AR in this way: the detail of the account supports its veracity; AR’s initial unwillingness to give the account, also supports its truthfulness, in that AR was taking matters “seriously”, and hesitating before deciding to give his account – it does not support the idea that AR was “joking” in giving this account, or frivolously trying to attract attention to himself.

Nor are we persuaded by HA’s arguments that the sexual intimacy, as described in AR’s account, was unlikely due to physical constraints or the accessibility of AR’s room: AR’s account deals with the latter point by noting that HA closed the door at relevant times; and it seems likely that HA would have been able to carry out the intimate acts described in AR’s account, on his own.

It follows that we consider AR’s account to be strong evidence; and, consequently, that we find HA’s denial of sexual intimacy with AR to be less believable.

We have not therefore found DBS to have made a mistake in making core factual finding a.; and given the self-evident seriousness of that finding, from a safeguarding perspective, the other two core factual findings are not, in our view, “material”, in the sense that DBS’s decision would have been the same even if those findings had not been made. For completeness, however, we record our view that it was not a mistake for DBS to have found that the HA’s conversation with AR, relating to the “friend” of AR’s youth, AR’s sexuality, and HA’s sexuality, was “unprofessional”; but it was a mistake for DBS to have found that HA “failed” to report inappropriate behaviour from AR, in that we accept HA’s evidence that the “touching” behaviour from AR was well-known to staff at the centre and there was a general practice, which was tolerated by the management of the centre, of not making written reports of these incidents, but, rather, of mentioning them orally to the nursing staff; and that HA had conformed with this general practice.

We also record, for completeness, our view that DBS’s decision made no mistake on a point of law; in particular, given core factual finding a., it was not disproportionate to include HA in the adults’ barred list.