[2025] UKUT 221 (AAC)

Allegations 2 and 3 are linked and so we shall describe them in the same section of these reasons. They concern events at a registered children home (Home 2), also operated by the Priory Group, in late 2020. By this time, the Appellant was a member of Priory Group ‘bank’ night support staff, having resigned as an employee in April 2020, and it was in this capacity that he was working at Home 2.

An undated report prepared by Home 2’s management about events on 6/7 November 2020 (p.70) stated as follows:

“RDW [day staff member] arrived on shift at 7am and greeted CG and [Appellant], RDW asked for a Handover for the night from [Appellant]. [Appellant] reported that there were no disturbance during the night. RDW asked if anyone got up. [Appellant] said that [redacted] had been to the toilet once.

CG had been standing in the hallway when RDW arrived, he told RDW that he had heard talking in [redacted]’s bedroom. RDW went over to [redacted]’s bedroom door and listened at the door. RDW could hear giggling. Upon opening the door RDW saw that both [redacted] and [redacted] were in the bedroom. Both [redacted] and [redacted] were naked, [redacted] was laying on [redacted]’s bed looking relaxed and [redacted] was stood at the end of the bed.

…[redacted] said that [redacted] told him that if he took his clothes off that he would give him pocket money for three months. [redacted] said that [redacted] has been knocking on his door many times during the night and that after using the toilet he found [redacted] in his bedroom.

RDW walked out of the room to speak with CG. Whilst out [redacted] said to VS “He tried to fuck me””.

On 7 November 2020, Home 2’s registered manager, LW, had an ‘informal conversation’ with the Appellant. The written note of the conversation (p.71) included:

“LW: Can you tell me about last night’s shift?

Appellant: There was not anything that really happened. I was in the office I shut the door to read my book after my cleaning around 12:45. At 12:45 I turned off the toilet light and shut [redacted]’s bedroom door having observed him sleeping. At about half 2 I heard movement and when I opened the door to see who was walking I didn’t see anyone and I assumed that [redacted] had used the toilet. I noticed [redacted]’s bedroom door was shut, and I saw that the light in the toilet was on that’s why I believed he was the one who used the toilet. That was all that happened during my shift until this morning when he woke up around 7. He came to my office and asked what time was it, I said it’s 6:55 and that today is Saturday and he can go back to bed.

LW: After you heard movement and checked did you close the door again?

Appellant: I closed the office door again.

LW: Why did you close the office door?

Appellant: When I came on shift the upstairs light is always off to discourage [redacted] from coming out of his room. Each time I see him open his door I always ask him to close it.

LW: Did you record the activities for the night?

Appellant: No, because I could not find any pens I was thinking that on tonight’s shift I could document everything then.

LW: Did any other YP come out between [redacted] coming in the office and staff coming in on shift?

Appellant: No, I went downstairs to open the door for the day staff at 6:55-7:00am.

LW: Was you aware of any movement then?

Appellant: No not that I know of.

LW: Are you aware of the risks and behaviours the boys may display?

Appellant: Not really but there was a time I noticed something that could be a risk, 2 weeks ago around early in the morning. I wanted to open the front door for the day staff, [redacted] was in the toilet and [redacted] was also out he opened the bedroom door at the same time I needed to go downstairs to open the door for the day staff. I saw him going to [redacted]’s bedroom and I stopped and I didn’t go downstairs and I asked him to go back to his room, he hid by the toilet I had to be firm with him to go back to his room. In between the time [redacted] came to meet me where he was trying to distract me to get [redacted] into his bedroom. I insisted [redacted] to go back to his bedroom. He then went to his room, and [redacted] went to his room. KIA [day staff member] was on shift I do not know how she got in but someone let her in, she came to where I was and she helped.

LW: Did you hand it over to anyone?

Appellant: Unfortunately no I didn’t.

LW: Why?

Appellant: I do not know why because I know I’m supposed to document it to be discussed.

LW: Have you read the boys paperwork?

Appellant: No.

LW: Why?

Appellant: Each time I come to work there is a handover and there was no mention of any risk among the young people in the past or within the time I have worked here so I just thought that the young people were settle with no risks that could potentially put them in danger. The only thing I am aware of is I need to support them at night if they need my support. I asked on my first shift here if there is a need for me to do observations throughout the night whilst they are asleep and they said no.

LW: Do you know which staff that was?

Appellant: I can’t remember but I know I asked that question clearly if there is a need for me to check on anyone I am supporting throughout the night. If I am told no I believe the risks to be minimal and if I am cleaning in the night I tip toe and work quietly so I don’t wake them up.

LW: Are you aware that when working in all homes you are supposed to read their paperwork?

Appellant: Yes, I know.

LW: Is there anything else that you wish to add?

Appellant: If I understand the context of the interview, I might be able to say something.

LW: Currently I cannot disclose anything I will get back to you earlier next week with further information.”

The note of the informal conversation was signed by LW and the Appellant, with both adding “7.11.10” after their signatures.

On 18 November 2020, LW conducted an interview with the Appellant. The assistant manager, HP, was also present. The note of the interview included the following (p.73):

“LW: …there is an investigation that is ongoing relating to a safeguarding matter when you were last on shift on 6^th November 2020, and into the morning of 7^th November 2020 where two young people were found to be in each other’s bedroom. Both boys were naked and have made strong allegations against each other of a sexual nature.

Can you tell me about that night’s shift?

Appellant: Exactly what I said the last time that’s what it was I won’t be able to remember very clearly…

LW: Why did you close the door?

Appellant: I closed the door because I don’t want to distract [redacted] with the light and closed [redacted]’s door so no light is left on upstairs, so if I open the door the light will be on the landing.

LW: You stated you closed the door to read a book, is there any possibility you could have fallen asleep?

Appellant: I’m a waking night so I don’t fall asleep.

LW: Are you aware of the safeguarding protocols and policies? You have signed the staff sheet to say you are.

Appellant: I signed one at [redacted] but not here, my understanding about the policy is to ensure the YP don’t go out at night without notifications and that children are not allowed into the bedrooms after 10 pm

LW: I spoke to you before on 5^th October when you came on shift at 09:30 and went into the lounge to watch match of the day. I informed you that you needed to be in the staff office on the middle floor with the door open to safeguard the children as they display sexualised behaviours, why did you then feel it was ok to close the door on the middle landing when on shift?

Appellant: Like I said I closed the door because of the light and maybe I had forgotten that you said to keep the door open. I have concerns about the policy-both were found in [redacted]’s bedroom naked what safeguarding did you put in place to ensure the yp are safe?

LW: the waking night is there to ensure the YP are safe.

Appellant: I’m not being rude just factual if we have noticed this and im part of this I need to let you understand things are lacking. The reason is as I’m a waking staff who is equally assigned to do the cleaning and the washing and ironing.

…LW: You told me before that there was no movement before 2am and that you had finished your cleaning duties at 12:45.

You previously stated there were no pens to complete the log-you arrived for shift at 930 and day staff were here until past 10pm. Why did you not ask for a pen at that point to sign in?

Appellant: When I came they were all in the office and gave me a key- I went on to start my cleaning, I didn’t sign in that day.

LW: Are you aware that when working in all the homes it is your responsibility to make sure you have read and signed all the YP paperwork as this tells you the risks and how best to support them, why was this not completed?

Appellant: I was not given them to sign, I don’t normally ask but been prepared by management for staff to sign.

LW: Is there anything else you wish to add?

Appellant: yes please, I was trying to pass across and be clearer, that the time the staff found the YP in the bedroom does not matter; it could have happened when I was cleaning up to roughly 1 am.

LW: you stated you heard movement at around 2am.

Appellant: before that moment I went downstairs to do the washing when I came back I shut the office door when I returned 10 mins after that I heard movement so when I went to see, the toilet light was left on and that was the reason I thought it was [redacted]. Because I was told they were settled in bed I wasn’t told I needed to do a visual check and I assumed [redacted] was the one who used the toilet and then went back to his room. I didn’t do the visual check because of the need to avoid him asking me to read a story as he normally does.

LW: Would it have been a problem to read him a story if needed?

Appellant: No but because I didn’t want to keep him awake unnecessarily, I want to know like I said if there is a concern I would do visual checks but because [redacted] has history of using the toilet which is by his bedroom I assumed it was him then went back to his room. It doesn’t matter if I closed the door.”

The note of the informal conversation was signed by LW, HP and the Appellant, with each adding “18.11.10” after their signatures.

A management report about the events of 6/7 November 2020, dated 14 December 2020, included the following (p.80):

“…Background to the service

[Home 2] is a five bedroom Children’s Home that meets the needs of young persons who have Behavioural, Emotional and Social Difficulties between the ages of 7-18 years.

…Due to the current risk of the young people within the home it is required there is 4 people on duty during the day and 2 people on duty throughout the night, unless risk assessed otherwise by management.

Background to the Employee

[Appellant] started working for the Priory Group on 18^th December 2017 as a full time waking night, he resigned from this permanent role on 9^th April 2020 and has since transferred over to a bank contract as of 10^th April 2020.

There is a previous allegation of [appellant] allegedly being found asleep whilst on a waking shift…The outcome was that he was not fully alert throughout his shift in order to adequately safeguard the young people in our care and he was issued with a final written warning…

Evidence review

[recountswhat was written in the report referred to in paragraph X above]

Young person 1 [in whose bedroom both young people were discovered] went on to make an allegation stating that young person 2 had tried to ‘fuck him’ and stated that ‘if he got naked he would give him his pocket money for the next 3 months’…

Young person 2 then went on to make an allegation against young person 1 stating that he ‘had throat slammed him on to the bed and laid on top of him and it hurt’…

[recounts what was written in the notes of the informal conversation referred to at paragraph X above, and the interview referred toatparagraphX, save that the management report does not mention the Appellant’s claim that he was told it was Home 2 policy to keep the office door shut to minimise light nor his claim that no paperwork about young people at Home 2 had been provided to him]

Young person 2’s core documents…highlight a previous safeguarding concern at the beginning of the year where an allegation was made against him of a sexual nature in receipt of toys and money.

In young person 1’s core documents…it states he can display sexualised behaviours towards others and that due to his FASD [foetalalcoholspectrum disorder] it increases his vulnerability and impacts upon his level of understanding.

[Appellant]’s training matrix…shows he is up to date with his safeguarding children, his sexually harmful behaviour FFG modules and his face to face safeguarding level 3.

…[Appellant] stated that he had noticed YP2 try and go into YP1 room prior to this incident and did not hand this over to the team, admitting that he knows he should have…

[Appellant] stated he did not see which YP came out of their room and assumed this was YP1. He did not enter bedrooms to double check any of the YP. He stated he didn’t check YP1 because he didn’t want him to ask [Appellant] to read him a story.

…[Appellant] failed to report concerns the first time he noticed YP2 trying to get into YP1 bedroom.

…[Appellant] did not check to see who had come out of their room which resulted in sexual harmful behaviours (seeing each other naked and going on to make allegations against one another).

…[Appellant] did not read the YP BSP [behavioursupportplan] therefore was unable to support the YP in line with their plans.

…[Appellant] did not read boys paperwork and admitted he knew he should have.

…[Appellant] did not record or report his concern the first time round, therefore we were unable to demonstrate effective, caring and responsive service to keep both YP safe.

…The child’s wellbeing was not promoted or protected as [appellant] failed to keep them safe. It is sexually harmful for the boys to see each other naked. The impact this will have on them both when the ground work starts with both YP and the realisation of what has happened will mean both boys will experience shame.

…Neither boys dignity was protected due to not being safeguarded and that [appellant] assumed YP1 went to the toilet/left his room when in fact it was YP2 who left his room. Had [appellant] checked YP1 that night, he would have identified immediately that YP2 was in [redacted]’s room. All involved state there was movement at roughly 2am. Day staff heard giggling in YP1 room at 7am-this means there is a high probability that there was a 5 hour period where both boys were in YP1 room unsupervised.

Mitigation

[Appellant] has stated that he closed the office door and states this is so the light does not disrupt the young people during the night.

[Appellant] states he did not check on YP1/2 after thinking it was him who used the toilet during the night due to YP1/2 may have wanted a story read to him and did not want to encourage YP1/2 to stay awake.

Conclusion

…[Appellant] was aware that an YP had left their bedroom at 2:00 am to go to the toilet; however, [appellant] did not check whom this was or where they then went, therefore this led to both young people being unsupervised in a young person’s bedroom for a period of up to 5 hours.

…within [Appellant]’s investigation meeting he confirmed that he was aware that the young people do display sexualised behaviours [and] that he was aware of a previous incident where YP2 tried to access YP1’s bedroom however he failed to report this incident in line with policy, although he stated that he realised that he should have.

…it is probable that the allegations are correct and I am therefore upholding all three of them.

…my decision is that [appellant]’s bank agreement is terminated with immediate effect…”.

The Appellant was informed of the Priory Group’s decision by letter of 18 December 2020 (p.88).

In tandem with the Priory Group’s disciplinary investigation, the events of 6/7 November 2020 were being considered by the relevant LADO (local authority designated officer, whose role under UK Government guidance is to manage allegations against adults who work with children). Priory Group referred the matter to the LADO on 9 November 2020.

An initial LADO meeting was held on 11 November 2020. Much of the minutes of the meeting (p.90, dated 16 November 2020) are concerned with the risk of sexual harm posed and faced by the two young people, which we need not set out, but the minutes also record that, following the incident, Home 2 changed its operating procedures “which primarily ensures that the children are supervised at all time throughout the day and night”. Home 2 aimed to have two waking night staff situated on the landing between the two young people’s bedrooms, rather than one in the office, although implementing this measure had been hampered by staffing difficulties. Door alarms were also to be fitted to the doors of YP1 and YP2’s bedrooms. The minutes also:

record the manager’s view that YP2 could not have entered YP1’s bedroom at handover because this would have been witnessed by staff;

state “on 09/11/20, [YP2] alleged that at about 6.50 am on 07/11/20, [YP1] knocked on his door and asked him for sex. [YP2] said that [YP2] ‘poked me in the back, choke slammed and threw himself on top of me, he got on top of me and hurt me’” and “[YP1] has not wished to discuss the incident any further to date”. The incident as reported by staff at Home 2 was that YP2 entered YP1’s room, not the other way around as per YP2’s reported account;