Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 239 (AAC)

Fecha: 10-Jul-2024

Ground 1

Ground 1

Material mistake of fact: first finding of relevant conduct – Finding 1

82.

The first finding of relevant conduct is that the Appellant:

• on 2/11/20 failed to follow strict policies and procedures which resulted in:

(i)

allowing J to use her mobile phone to listen to Spotify;

(ii)

gave her toys;

(iii)

purchased food for her using her own personal money; and

(iv)

dropped food off for a family member with J in the car.

83.

In summary, the Appellant’s response to this finding in her oral evidence in chief was as follows. GR says that the food for J was purchased as part of an order for the staff paid for by J out of her pocket money. The Harry Potter wand was given to J temporarily out of the boot of her car and the other staff were aware and GR asked for it to be removed from J’s possession at night once she was asleep. J did not use GR’s phone to access Spotify - she just chose the music from GR’s phone. She did not drop off food for a family member on the trip when she had J in the car.

84.

We are not satisfied that DBS made any mistake in finding that GR had committed this relevant conduct. We, like the DBS are satisfied “on the balance of probabilities” that the Appellant committed the relevant conduct, including all four sub-findings, as alleged.

85.

In coming to this conclusion, we have taken into account the Appellant’s character and professional references that speak highly of her previously unblemished career in the care sector. This goes to her propensity to commit relevant conduct and her reliability or credibility when giving evidence. We also take into account that GR gave oral evidence and was tested under cross examination unlike the witnesses relied on by DBS. We have also taken into account the fact that there was no dismissal by the employer in relation to these findings.

86.

Nonetheless, there are a number of reasons why we reject the Appellant’s evidence.

87.

The first is the contemporaneous documentation supporting this allegation (at [64-73]).

88.

The email of LR (team leader) at the Home to other members of staff dated 4/11/20 (some two days after the incident) supports the assertion that J was bought a meal and given toys by GR [64-65]. The email states as follows:

‘Monday 2/11/20 evening shift GR had been assigned to support J• (LR supporting P and RH supporting NR) LR could hear loud music coming from the lounge LR presumed this was J’s IPod. J walked passed LR later in the

corridor (LR believes the Time of this was around 1700 But cannot be more precise due to not having access to a clock, it was before dog therapy came.)

LR questioned who's phone was she using (said in a cheerful voice to J.. J■

replied [GR]'s she always lets me use it. GR was in the hallway with J and LR now. J stated that [GR] always lets me use it because I give it back when she gets a message. GR in a humorous way said you got me told off now and

we laughed gave the phone back . LR went to cook dinner dog therapy arrived and J interacted with this in the lounge.

LR cooked pasta for PCW and NR staff decided they didn't want to eat this and would get something later. Before 1900 LR RH GR and J9Mas in the kitchen with PCW walking around NR had just gone to the bathroom. Staff

were talking about what they might like for dinner J was making suggestions. Chips was mentioned J said you can have that to GR as it's your choice we laughed as this is a known saying that J uses about her choices. RH left the

room to be with NR. J asked if she could have chips LR reminded her that she had requested taco's and that it wasn't a house treat staff were paying with there own money for there food. J accepted this and was happy.

J and GR went out in GR car for a drive. When they returned home not much later than 1945 LR and RH was in the office GR and walked past J, had an armful of toys. LR questioned What have you got J responded my friend gave

them to me. LR asked who her friend was? J said my friend. LR asked what it was J first didn't want to show but when LR said it looks like a monkey, J then briefly showed LR and said yeah it talks.

LR went into the kitchen to get her food noticing the door was closed saw that J had been brought a child's meal. NR was eating some food that GR had shared with him. LR went out of the kitchen as PCW was watching TV in his

room.’

89.

GR had an investigatory and disciplinary meeting the same day in relation to the allegations. Certain admissions are recorded in the note of the meeting with GR in respect of the food and toys on 4/11/20 (at [67]).

‘Meeting with [GR] on the 4/11/10 to discuss whistleblowing concern of the 2/11/20

Did you let young person use your mobile phone on the 2/11/20 and access You Tube or Tik Tok?

Answer: yes, I stopped though as soon as L said. Did not access TikTok or You Tube as I don’t have it on phone. Only thing is Spotify to listen to music.

Did you buy J fish and chips on the 2/11/20? Did you leave her in the car?

Answer: yes I did. J hadn’t eaten dinner. I bought out of my own money. L and R asked me to pick something up for them as they didn’t like the pasta. J came in the fish and chip shop with me.

Did you drop off food to your home during the shift while the YP was in your care?

Answer: I gave food to T out of car window, she was waiting at the bus stop along the dual carriageway.

Had you asked permission to give J toys?

Answer: no I did not know I had to. Was only 2 harry potter wands and a monkey which I had in the car.

Has this YP or any YP ever entered your house?

Answer: No children have ever been in my house. MSH has been outside my house when he came with staff to pick up a sofa from outside. MSH did not know it was my house.

…’

90.

There was a further disciplinary interview with GR regarding the allegations. In the note of interview there are various other admissions by GR about letting J use the mobile phone and about giving J toys (she admitted it could look like favouritism and was horrified by her actions) [69-70]:

‘Point 1 - Allowing a young person use your own personal mobile phone

…

SD asks if GR has read and understand the mobile phone policy? GR agreed her understanding of this policy. GR refers to her supervisions where this has been discussed and there are no issues. GR explains that she has no Spotify on her phone.

LS refers to GR’s comment about Spotify as this is what J was listening to. GR corrects herself and advises Tik Tok is what GR does not have on her phone.

LS asks GR to confirm that even though there is a mobile phone policy, the phone was brought out for a young person to use and this was used with J

GR confirmed yes. LS asked GR the reasons GR allowed the use of her mobile phone when GR confirmed she knew of a policy?

GR did not think and as J asked her to listen to music, this happened.

LS expressed what could have been done and how if J wished to listen to music, this could have been via other sources.

GR understood the difference.

Point 2 - Giving of gifts to a young person in your care

SD asked GR to explain the gifts.

GR stated that this was a complete misunderstanding. Before GR had given a bag of clothes to a young person and did ask AA before. SD asked specifically about giving gifts to J

GR explained that J had lost her Harry Potter wand and as GR had one at home, GR gave it to her.

GR didn’t think this was an issue. J saw the wand and some other stuff in GR’s car and this is when J wanted the toys.

SD asked GR how does she think this is seen, giving gifts to J GR confirmed after thinking about it she can see that this looks like favouritism. GR can now see the bigger picture and GR is horrified about this.’

91.

So far as the allegation of buying food for J was concerned, GR admitted to taking J for a ride in her car while she purchased food for the staff and purchased J a meal as well as giving her own daughter groceries enroute [70].

‘Point 3 - Buying a young person food with your own money

SD asked GR to explain what happened to make GR buy J some food out of her own money.

GR explained that the cooking rota showed the Team Leader & another young person cooking dinner that night. LS asked who the TL was? GR confirmed LR.

GR arrived at the house at 2.40pm and LR did not come out of the office until approx. 8.00pm. GR stated that LR said that she “couldn’t be bothered” to cook. However, when GR went into the kitchen, two young people had eaten.

SD asked GR to confirm if LR did cook the meal? GR confirmed yes. GR continued to advise that LR then wanted fish and chips for their supper and asked GR to go and get some. J wanted a drive so went with GR in the car. GR stated she would normally question this. SD asked her why she did not question and GR confirmed that she was more concerned about getting J out.

GR proceeded to buy fish and chips for the home and J asked for some food. GR brought J a saveloy and chips kids’ meal.

SD asks if going out for food happens a lot for the staff?

GR states yes it does. The Deputy Manager and others asked to get McDonalds or asks people to take them.

Point 4 - Dropping food to a member of your own family whilst on shift and with a young person in your car

SD moves onto dropping food off for her own family whilst being in the car? GR confirmed that there was food in a Tesco bag in her car and her own daughter contacted her to see what was for tea. As GR’s daughter was walking home, GR advised her to meet her at a bus stop which GR confirmed was not near her home. GR’s daughter picked up the bag from the boot of the car.’

92.

Following the disciplinary proceedings, GR’s explanation was considered in respect of these four sub-findings in respect of ‘J’, in November 2020. There was not any serious challenge to the facts by the Appellant at the time. They were largely admitted at the time and were the subject of a final written warning that was not appealed.

93.

All four sub-findings were upheld by her employer (albeit that the fifth allegation of allowing J to visit GR’s house was not upheld). GR received a Final Written Warning and a training requirement on 10/11/20. The employer’s letter to GR stated [72-73]:

‘• You admitted, and your training record reflects, that you are fully aware that allowing a child any use of your personal mobile phone, even for an ostensibly "innocent" reason, is strictly forbidden under our safeguarding rules and procedures as this can be at best indicative of preferential treatment, and at worst providing them with access to unsuitable information and to your personal details.

• You are also aware that giving gifts to children is strictly forbidden and a serious breach of our safeguarding rules and procedures, as this can be indicative of preferential treatment designed to cultivate an unprofessionally, and inappropriately close relationship.

• Similarly, buying food for a child with your own money, and including them in a group order has the potential to cultivate in the child a feeling that they have privileged standing or access, and this is also strictly forbidden for the same reasons as the matter above.

• Your contract of employment requires that you devote the whole of your time and attention to your duties during working time, and the running of personal errands during work time is not permitted unless prior authorisation has been given.’

94.

These reasons explain why the four sub-findings amount to relevant conduct – conduct which is likely to cause a risk of (emotional or psychological) harm to J, a vulnerable child.

95.

This much was accepted by GR in her oral evidence to the Tribunal during cross examination.

96.

GR was given the right of appeal against the final written warning, which she did not exercise.

97.

GR therefore made extensive contemporaneous admissions and Finding 1 is supported by evidence from the team leader on the night.

98.

We are satisfied that the subsequent denials/explanations given to the Tribunal by GR at the OPH and in her oral evidence in chief regarding the four sub-findings during the hearing are not reliable.

99.

First, they are significantly inconsistent with the admissions she made in her more contemporaneous statements to her employer.

100.

Second, when she was cross examined, GR, sensibly, accepted the account she gave at the time as being largely accurate and accepted her behaviour had fallen short.

101.

Even during cross examination, GR did however continue to dispute that she ever handed J her phone in order to listen to Spotify, albeit that she accepted that she allowed J to choose the songs from her phone. She also continued to dispute whether J’s food was intended to be paid for her or by J – she stated that the intention was that she would be repaid from J’s pocket money.

102.

However, given the contemporaneous admissions and inconsistencies in her oral evidence, we are not satisfied these denials are reliable on the balance of probabilities. We are satisfied that all four sub-findings of relevant conduct are established on the balance of probabilities.

103.

We are therefore satisfied that the DBS has not made a mistake of fact in relation to the first finding of relevant conduct and the four sub-findings. We dismiss ground 1. There was no material mistake of fact in the DBS’s first finding of relevant conduct – the four sub-findings are established on the balance of probabilities.