[2025] UKUT 221 (AAC)

Ms Bayley’s closing submissions at the hearing argued that whenever the evidence in this case disclosed a conflict of fact, DBS consistently adopted the interpretation that was most damaging to the Appellant. The Appellant’s testimonials counted for nothing. The evidence cannot reasonably support a finding that the Appellant ever intended to cause harm or neglect service users.

The Appellant has consistently denied having been asleep at Home 1, a denial that was maintained in his sworn oral evidence. Ms Bayley concedes that the Appellant cannot convincingly account for not having heard the doorbell at Home 1. However, the fact that young people at Home 1 were issued mobile phones demonstrates that they could not rely on the doorbell.

Ms Bayley argues that the factual burden is on DBS. In that light, it is notable that the only evidence that the Appellant was sleeping at Home 1 is a single email written by TE who has never been subject to any probing questioning. The Appellant does not however blame TE, only asking why, if she thought he was asleep, did she just go back to bed? It is quite possible that TE genuinely believed that the Appellant was asleep because the Appellant did not answer the doorbell, TE had to deal with it, and he was lying more or less immobile on a sofa. The Appellant gave sworn evidence that he was not asleep, which must carry significant weight in determining whose evidence to prefer especially in the light of TE’s very surprising step, on her account, of leaving the Appellant to continue sleeping and, as a result, leaving the young people in Home 2 unsupervised.

In evaluating the evidence in relation to Home 2, the Upper Tribunal should bear in mind well-known difficulties in recruiting social care staff. Often, as in this case, staff are left ill-prepared and uninformed and it should also be noted that the employer did not provide, with its DBS referral, the Appellant’s job description at Home 1 or as a bank worker. A night bank worker is not expected to be on constant watch. In practice, much if not most of the Appellant’s night work at Home 2 was taken up with domestic tasks on the ground floor, making it impossible for him to keep constant watch over the middle floor even if that had been a role requirement. If the employer thought a constant watch was required, it should have funded a second night waking staff member or paid for a cleaner. The extent of the Appellant’s domestic duties on the ground floor of Home 2 show that he was not in fact given an instruction to remain in the middle floor office or, if he was given such an instruction, it was given in the knowledge that it would be impossible to fulfil without ignoring another instruction (to do all the cleaning, washing and ironing). The residents of Home 2 were not properly safeguarded but that was not the Appellant’s fault. If some young people displayed sexualised behaviour, the Appellant should have been informed and made aware of whatever arrangements were in place to manage risk. This was clearly the employer’s responsibility. The Appellant relied on what he was told at handover and was not given access to the young people’s care plans. Yes, perhaps he should have insisted but that does not mean he was responsible for obtaining information about the young people let alone amount to ‘relevant conduct’ for the purposes of the 2006 Act. In the circumstances of this case, it was deeply unfair of DBS to make an adverse finding that the Appellant failed properly to support the young people in line with their care plans. DBS have never seen the two young people’s care plans, and their decision letter further fails to identify the safeguarding policies, and reporting procedures, that the Appellant is said not to have followed. If the Appellant was in fact expected to be on permanent watch, he was set up to fail.

Ms Bayley concedes that not having a pen was a poor excuse for failing to make records at Home 2, but the Appellant’s actions were mitigated by the fact that he gave a verbal handover to day staff.

The evidence does not support DBS’ argument that, in Home 2, the two young people were together in one bedroom from around 2 a.m. The Appellant would have heard something given the hourly checks referred to in his sworn evidence and the LADO minutes report that one of the young people stated they were only together from 6.40 a.m.

That the Appellant was unaware of the allegations at the time of the informal conversation with Home 2’s manager is shown by his final remark that he might be able to add something if he knew the context of the interview (p.72). To draw any inference from this reported conversation, when the Appellant was unaware of the incident and given no real opportunity to agree the report’s accuracy, would be unfair. It goes to the Appellant’s credit that, according to the interview with Home 2’s manager, his primary concern was the adequacy of safeguarding arrangements. The Appellant’s reasons for signing records that he now says are inaccurate are not fanciful since, at this time, he trusted Home 2’s manager.

DBS were wrong to characterise the earlier incident at Home 2 as a ‘previous concern’ of which the Appellant should have been aware. If that matter should have been escalated, it was the other staff member’s responsibility and the Appellant’s failure to do so cannot reasonably be considered relevant conduct for the purposes of the 2006 Act.

Alternatively, Ms Bayley argues that, even on DBS’ interpretation of the evidence, there is nothing to suggest that the Appellant poses an ongoing risk of harm.