[2024] UKUT 239 (AAC)

The DBS’s second finding of relevant conduct was that:

We are not satisfied that DBS made any material 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 the material parts of the finding of fact as alleged.

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. They go to her propensity to commit relevant conduct and her reliability or credibility when giving evidence. We also take into account that she 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 action taken by the police against GR. The absence of any criminal proceedings or prosecution being instituted against GR in respect of the allegations in this finding is not determinative: it reflects the markedly higher standard of proof in such proceedings compared to the civil standard applied by the DBS and this Tribunal.

In her oral evidence to the Tribunal, GR denied the finding. A summary of her oral evidence at the OPH and during her evidence in chief during the hearing is as follows: GR says that N should have been supervised with 2 carers not 1:1 due to him making up false allegations; N had fabricated the allegations against GR because he was unhappy that GR had left the service without telling him; it was just his word against hers; she never took N to her home or allowed him to smoke cannabis; the dash cam and data from the car would have established that N never went to her house.

There are a number of reasons why we reject the Appellant’s evidence.

First, we are satisfied that N volunteered his two accounts of the alleged incident unprompted, relatively contemporaneously, to two different staff members and consistently. We are satisfied that the staff members’ records of N’s accounts are reliable and accurate.

N said the following unprompted to PS, a member of staff, on 14 April 2021 [52 & 57] which he took a note of:

N said the following to HP, a different member of staff, on 19 April 2021 who also made a note:

We are not satisfied that the fact N’s account is untested hearsay means it is unreliable. We are not satisfied that it lacks credibility – we are not satisfied N had any substantial motive to make up his account or lie. There is no independent evidence to support the suggestion that he was upset by GR’s resignation without notice.

There was nothing in N’s care plan to suggest that he had previously made false allegations or required 2:1 supervision. There were also contemporaneous notes to say that N and GR had got on well.

GR had already left the Home and N was not likely to have any further contact with her, so this is likely to reduce any motive to make up false allegations against her. This is reflected in the fact that he did not raise the issue until a minimum of 6 days after GR resigned. The assertion that N or the employer X has fabricated an allegation against GR [210] is unlikely. There was no need for N or X to do this - GR was in the currency of her notice period and was leaving her employment when the allegation arose.

We have also taken account N’s age and vulnerability (due to his conditions) but consider that the fact that he stated he did not want to get GR into trouble and was reluctant to be thought a ‘snitch’ supports the reliability of his account. N’s account also involved making damaging admissions as to his own use of prohibited drugs – again this reduces the likelihood it was fabricated.

The level of detail contained in the second account given by N to HOP and description of the interior of GR’s house are unlikely to be fabricated. The note was taken on 19 April 2021 by HP, the deputy manager, of a discussion between her and N [52 / 56]. N described GR’s home (lounge on the right, kitchen on the left, garden with shed and a wall, stairs in front of the entrance). N confirmed he smoked cannabis after GR had driven him. GR’s daughter and daughter’s boyfriend was present. He smoked the drugs in the garden. On the way back GR asked him to tell PS if he asked that they had been out for a long drive.

In respect of ‘N’ there is therefore a clear and detailed account given by him (repeated to two different managers PS and HP [56-57]). N’s ability to recall the layout of GR’s house (something which could be independently verified), supports his account. The internal part of GR’s home could not have been obtained from a view from the street.

The previous written warning received by GR which included consideration of an unproved allegation that GR took J to her house also provides some corroboration for the allegation. As does the record of trips taken with N in GR’s car and the lack of likely motive for N to lie.

There followed a disciplinary interview of GR with CV and LS on 20 April 2021 in which GR denied the allegations and which was recorded as follows [53]-[55]:

There was an investigation report dated 20 April 201 prepared by KH with a summary of findings at [50]-[51]. She concluded as follows:

As set out above, the disciplinary investigation report was produced on behalf of X services dated 20 April 2021 by a KH [48-55]. Various pieces of evidence were considered including the logs that showed that GR did take N out on trips in the car although there is no detail as to what the purpose of the trips was for. Further an ex-staff member confirmed that on one occasion GR was dropped off at a bus stop close to her home by an ex-staff member and N was present in the car.

There is no documentary evidence within the interview that GR asked anyone to check the dashcam/data from the car which would have proved that N did not attend at GR’s house [62]. Nor is there any evidence of a co-worker stating that N admitted to fabricating the allegation as GR asserted during the OPH [210]. We have considered whether N might have a motive to lie or the account might be unreliable as untested hearsay but rejected this for reasons given above.

We have considered a number of matters that might be seen to support GR’s credibility. She has consistently denied the allegation regarding N since it was first put to her and contemporaneously. She has not changed her account on any material matter. Nonetheless, the allegations in relation to Finding 2 are more serious than in relation to Finding 1 so there is a greater motive to conceal the truth.

We accept that GR did make reasonable concessions in cross examination in relation to Finding 1 during the hearing, albeit that she only did so after giving an inconsistent account in evidence in chief and after being directed to the contemporaneous documents where she had originally made admissions.

We have also taken into account that her former employer, X Services, found the allegation insufficiently evidenced (the ‘allegation cannot be founded on the evidence’) in the investigation report and pointed to some potentially exculpatory material (which we have underlined). Nonetheless, the former employer X did then go on to find the allegations ‘substantiated’ in its ‘dismissal’ letter dated 22 April 2021. In any event, it is for us to assess all the evidence afresh.

Sadly, we have decided that it is more likely than not that the account that GR gave us in oral evidence was neither reliable nor credible. GR never previously suggested to her employer that the description of the layout of her house given by N was inaccurate. She had that opportunity over a long time and could have given a sketch, photos or videos of her house layout to the employer, the DBS or to us if she wanted to confirm that the layout described by N was inaccurate.

In oral evidence she accepted she did once have a shed in the garden but now it was removed. She never volunteered a description of the layout until asked by the Tribunal. The description of the internal layout of the house that GR then gave to the Tribunal on questioning towards of her evidence was largely consistent with the description that N gave.

Ultimately, the allegation of bringing N back to her house was consistent with the previous allegations that she had done so with at least one other child (J). Our finding is also consistent with the fact that she crossed boundaries in relation to child J and did so again in respect of N.

There was no drug paraphernalia found on a search of N’s room and the account N gave of others being at GR’s house – such as D[] – accords with other references to there being a person called D[] who was in a relationship with GR. We consider it unlikely that N was so angry with GR at her leaving that he made a serious and false allegation against her.

Ultimately, on balance, we have found that the Appellant did not tell us the truth about taking N back to her house. We also find that once there, N did smoke cannabis at her house under her supervision and with her permission – GR allowed him to do so and they smoked cannabis together. Whether GR supplied the drug to N or not is not material to the decision to bar and we have come to no conclusion on this point, given the seriousness of the main finding. It is inevitable that the DBS would have come to the same decision to bar GR on the basis that she brought N, a 16 year old vulnerable youth in her care, back to her house, permitted him to smoke cannabis (a prohibited drug) under her supervision and they smoked cannabis together.

There was no material mistake of fact by DBS in making Finding 2.

We are sorry to make these findings because GR was undoubtedly under a huge deal of stress at the time. We accept her evidence about her family difficulties, the health of her own two children and her own mental health difficulties. We also note that the period November 2020 to April 2021 during the time of Covid restrictions, would have been a stressful time to work in children’s Homes and there may have been staff shortages and reduced support. GR was also playing an important caring role for others as a professional and a friend and that is all to her credit. She had a long and unblemished career in doing so. She appears to have been well intentioned and motivated to care for J and N, and we are satisfied that she did not intend to cause either of them any harm and even sought to ‘befriend’ them’. Nevertheless, even though she did not intend it, her conduct was misguided, breached professional guidelines and boundaries and exposed vulnerable children to a risk of harm.

We therefore dismiss this ground of appeal – there was no mistake of fact in Finding 2.