Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 318 (AAC)

Fecha: 30-Jul-2024

Finding 5

Finding 5

27.

The evidence on which DBS relied for this finding was:

one co-worker recorded as saying (on 10 January 2022) that:

(i)

JP had begun to not eat or drink when RR had supported him; this appeared to be more frequently of late although JP at times declined to eat; it wasn't normally for more than 24 hours and JP would often still drink; the colleague noted that JP did not appear happy around RR

(ii)

RR seemed to "be in JP's face" all the time, not giving JP any space to just meander around the home as JP liked to do

(iii)

when asking JP to do something RR repeatedly asked and this unsettled JP

another co-worker was recorded, on the same date, as saying that RR “followed JP around” and this was off-putting for JP; the support worker was concerned about a change in JP's behaviour especially in relation to eating; JP appeared not to want to eat drink or engage when supported by RR, and looked unhappy

the locality manager is recorded as saying at the probation review meeting on 17 January 2022 that JP’s “not eating” happened “more frequently” when RR supported him; that perhaps RR came across as overpowering by trying too hard; that RR sat at the table looking at JP when JP was eating.

28.

RR argued that it was not his care that caused JP not to eat; JP had “not eaten” on many occasions/periods prior to RR caring for him.

29.

We find it unlikely, given the undisputed fact of JP going into periods or phases when he would “not eat”, that that there was a causal link between RR’s care and JP’s not eating at around that time; the opinions of RR’s co-workers on causality are unconvincing, given that they were not qualified to opine on such medical/psychological matters.

30.

It follows that, in our view, Finding 5 was mistaken: it was not RR’s behaviour, or style of care, that caused JP to “not eat or drink” more frequently.

31.

However, this does not seem to us a material mistake, in that DBS’s decision was based on “definite concerns” in one area, “irresponsible and reckless” – and the factual findings cited with reference to this concern, on pages 104-105 of the bundle, do not include Finding 5. Moreover, even where Finding 5 is cited in respect of one of two areas where DBS had “some concerns” – that of “callousness/lack of empathy” (pages 103-104) – it is one of three factual findings cited, implying it was not in itself determinative of that area of concern.

32.

It follows that, in our view, DBS’s mistake in making Finding 5 was not a material one.