[2024] UKUT 379 (AAC)

In respect of allegation 6, the allegation was that whilst working at a care home, he touched a 19-year-old female care worker which amounted to indecent assault. LM gave oral evidence about this and was cross examined. LM’s written account was that no charge was brought against him by the police, so that the DBS should not use this allegation as a basis upon which to decide. There are no witness statements or other information from the police save a short narrative account. The allegation was that LM had approached a female from behind, placed his hands on her hips and kissing her on the cheek, he had made inappropriate comments to her about coming to her house when her mum was asleep and had lifted her up from a sitting position, brushing his hands on her breasts while doing so. LM was interviewed by the police but there is no record of that interview, and no further action was taken against LM.

LM’s oral evidence was that nothing happened between him and the care worker. He said that the allegation was malicious. He told us that he had been working in the home for around 3 months. He said that nurses were not ordering medication as they should. He put a patch on a client which lasted for 72 hours, which was the last one, and said that a colleague agreed to order further patches. When he returned five days later, the medication had not been ordered, and the management asked him about why the medication had been missed. 48 hours later, the agency (for which he worked at the time) called him to say that he should not attend the placement as allegations had been made – the words he used was “girls are crying”. He then said that he had to wait for 6 or 7 weeks before the police came to his house to discuss matters with him. He accepts that the police interviewed him. He says that the allegation came from one particular individual. He also says that there were different accounts given by different women saying different things and said that he was not in the physical place where the young woman said that he was at the time of the alleged assault and that the investigation did not get further.

In cross examination, the DBS identified that this allegation took place in 2013, at the same time that LM was having problems at home (as identified above) and that this may have impacted upon the way that he behaved at work – as he had accepted that in 2018, he accepted that this actions at work were influenced by the pressures he was under at home.

The DBS accepted that the information from Hampshire Constabulary was limited.

We consider that LM’s view that the allegation was fabricated and made maliciously orchestrated by the manager of the care home is not convincing. Furthermore, the nature of the allegations is similar to those made in 2018, using a similar modus operandi (i.e. way of operating). The fact that there was no police prosecution does not mean that it is not relevant information which builds up a picture of entitlement to sex, as described in the DBS minded to bar letter. We take note of the fact that this incident took place in a separate care home, involving separate individuals, and took place whilst LM accepted, he was under significant strain.

In all the circumstances, we consider that the DBS have not made a material error of fact.