[2024] UKUT 277 (AAC)

an email of 25 June 2022 from KT, ‘consultant’ at HA’s employer, to DBS stating that the police had been, had interviewed HA, had decided there was no case, and would not be taking the investigation further;

a DBS referral form from HA’s employer dated 7 June 2022, showing KT as the referrer, and, amongst other things, describing HA’s work as ‘rehabilitation support worker for adults with neurological injuries’;

a further DBS referral form from HA’s employer, dated 7 August 2022, showing the referrer as CJ, HA’s line manager, and which, amongst other things: stated that AR was born in 1944 and said that he had had a brain stem stroke with severe right sided paralysis; that he could be confused and was vulnerable medically, physically and emotionally;

a timeline from HA’s employer, which included the following:

a hand-written statement of MW, saying that on Monday 23 May she was in AR’s room, with GLW, giving AR personal care; when she mentioned that HA was going to be on shift, AR said that HA “wants to have his way with him [AR]”, that HA “sticks [AR]’s lipstick up his bottom, and that HA “also ‘shoves his dick up his bum and cums on him’ “. MW’s statement said this really upset her and that AR was not known to usually speak like that;

a hand-written statement of GLW, dated 31 May 2022, as follows: “a couple of weeks ago while supporting personal carers, AR was talking with me and MW (support worker). I mentioned that HA was on shift as they get along and AR was laughing and said HA wants me and he carried on laughing. I asked why does he think this AR said because he is gay and wants to bum me and laughed again. During supporting this was not mentioned. A couple of weeks ago AR claimed there was a camera in his room (care noted). In my experience AR is becoming quite confused. While supporting AR says delirious stuff like there are cameras watching me. From what I have noticed while working with HA, HA has a good relationship with AR”;

31 May 2022 suspension letter from HA’s employer, signed by KT;

3-page typed “statement in regards to AR” from HA’s email timed at 11:13 am (undated); this said that on 23 May 2022 went into AR’s room for a wellbeing check; AR seemed to be in low mood; HA made him laugh by calling him “chicken”; AR showed signs of confusion; they had a conversation about a friend AR had in his youth who was “like” HA (and this seemed to mean, that he was gay); HA asked about the “stuff” they did together (and said it the note that it was “stupid” for him to have asked this); AR gave HA “some explicit details” but he had a wife and he let that friend “go” and never saw him again; the note then says that HA said “no well things were different then and things are different now [AR], look how much you adore me and I cherish you and I know you appreciate me being funny with you, and I said that after I separated from my ex husband I haven’t meet many people to date seriously but that don’t mean have to tell everybody about my dull life while laughing and making quote gestures or who have I met and kissed. That’s personal life, but listen I’m here for you and offered [AR] a hug and he took the gestures sweetly he gave me pat on my back …”; HA then checked AR’s pad; the note says that AR was “still saying a lot of things continuously but most of them were out of context and didn’t make much sense, even during our conversation I had to pay good attention and had to understand his words slowly and asked him to repeat after deep breath …”;

Note of “HA investigatory meeting” of 1 June 2022, chaired by KT. In this, HA was asked why the incident in HA’s 3-page statement (immediately above) was relevant the sexual allegations AR had made against him. HA’s response is recorded as follows: “It was relevant because the thing is I don’t understand where that would come from by talking and then he start talking about somebody that he used to know, somebody who was like me. I feel like, because I have discussed the whole thing with him, he’s telling me things that are in his nature. I think that somehow it binds it together, me asking him details. I did say to him if I had a gentleman as good as you are, as adorable as you are and if you were younger at this stage, you would be the perfect husband because you are so nice and he was laughing hysterically making himself cough at that”;

45 page transcript of a meeting on 21 July 2022 with CJ, HA and a union representative;

1-page typed note headed “28 June 2022” and signed by ER, assistant psychologist/rehabilitation support worker; this said that when ER was on shift on 26 June, sitting outside in the garden with AR, AR brought up that a staff member had made a comment to him about “sticking something up my bum”; the note said that AR had communication difficulties and could be difficult to understand; the note reported that AR said that someone had been to see him about this, and had told him that the police were involved; the note said that AR said that the same staff member had made him very uncomfortable as he was “heavy handed” and had made comments to AR in the past about being “in charge” and “knowing more than everyone else”; the note said that AR had told ER on previous occasions that the staff member had told him to have bed baths rather than showers, and that he is “too strong”. The note said that the conversation suggested to ER that AR was able to recall retrospective conversations with accuracy – he did get some days confused. The note said that AR “appeared to be able to recall events accurately and demonstrate accuracy and awareness around them”

notes of an investigatory interview with AR on 25 July 2022, chaired by CJ, with an handwritten note at the end stating that DC Vince attended on 1 August 2022 and read it to AR who verified it to be accurate;

letter to HA dated 30 July 2022 signed by CJ as “nominated individual”, dismissing him for gross misconduct;

another letter to HA of 30 July 2022 signed by CJ, concerning HA’s allegations that three staff members, including MW, had behaved in an unprofessional manner to him and had conspired against him;

character references for HA by six colleagues who had worked with him at the centre, including GLW;

DBS’s “barring decision summary” document: this recorded that two allegations were not proven (whilst finding that the allegations comprising DBS’s core factual findings were proven); it acknowledged that at the point of the disciplinary hearing HA was not being investigated in relation to the sexual abuse, due to the fact that AR had declined to support a police investigation – when had been spoken to, AR denied that any of this had happened; police then closed the case with no further action. The document also recorded that “as the behaviour involves abuse of position of trust to facilitate sexual contact with a vulnerable adult, the case will be progressed straight to minded to bar in line with current guidance”

a 38-page document from HA submitted to the Upper Tribunal and dated 28 August 2023 with submissions on various matters (including on DBS’s core factual findings), character references (including from JRL, RK and GLW), and copies of texts;