[2025] UKUT 221 (AAC)

failing to make records of activities during the night shift (BDMP document).

We reject the Appellant’s argument that it was not open to DBS to make a finding that he failed to follow safeguarding and monitoring procedures because there was no evidence about what those procedures were. While the DBS were not provided with a document setting out the Priory Group’s policies and procedures, Home 2’s management report was structured by reference to, and cited, various Priory Group policies to do with, for example, positive behaviour support (p.84) and risk assessments and risk management (p.85). Moreover, probably the most significant alleged failure was that the Appellant did not follow an instruction to remain in the middle floor office with the door open. On the evidence provided to DBS, that instruction was given to the Appellant personally rather than being contained in written policies and procedures.

We shall first consider the Appellant’s argument that his cleaning duties prevented him from remaining in the office on the middle floor of Home 2 for the initial part of his night shift.

It is self-evident that the Appellant could not be in the middle floor office, with the door open, when he was cleaning the ground floor. We think this is what the Appellant was getting at when he reportedly said, during his conversation and interview with Home 2’s manager, that YP1 could have entered YP2’s bedroom, without the Appellant being aware that this had happened, at any time before 1 a.m.

According to the notes of the LADO meeting on 11 November 2020, Home 2’s manager informed the meeting that “cleaning duties were increased in response to COVID-19, but as [night staff] arrived at 9.30 pm and Day Staff don’t finish until 10.00 pm, this should have taken place while other employees were still present” and “they were then expected to work in the staff office…with the door open at all time” (p.97). In other words, night staff were expected to complete the handover process and do all the cleaning etc on the ground floor within 30 minutes. Unless only very perfunctory cleaning was required on the ground floor, which seems improbable if cleaning duties had been increased due to Covid-19, we find it difficult to understand how this would have been possible especially when, as must have happened from time to time, significant information had to be conveyed to night staff at handover.

Home 2’s manager’s comments about cleaning at the second LADO meeting, on 25 November 2020, are difficult to reconcile with her reported comments at the first LADO meeting. The minutes state that the manager informed the second LADO meeting that it had not always been possible to implement a new policy for two waking night staff at Home 2 and “instead waking night staff have been taken off cleaning duties once the day staff have left and request that the sleep in staff members takes over should they need to leave the corridor between both children’s bedrooms” (p.102). The only reasonable interpretation of those words is that Home 2’s manager informed the LADO meeting that waking night staff were now expected to stop cleaning once day staff had left so that they could locate themselves in the middle floor office. If what the manager reportedly said at the first LADO meeting was correct, there should have been no need to take night staff off cleaning duties when day staff left. All the cleaning etc. should all have been done by then.

In our judgment, DBS erred in law by failing, in their analysis of the evidence, to take into account Home 2’s manager’s clearly contradictory statements about the extent of nighttime cleaning duties at Home 2.

We find that the Appellant was not expected to have completed all his ground floor cleaning duties at Home 2 by the time that the day staff left at 10 p.m. In our view, it would have been an impossible task to do all the cleaning and conduct the handover in 30 minutes. It follows that we also find that Home 2 was operated in such a way that, for a certain period of time, no waking staff member would be in the middle floor office. The duration of that period would depend on how long it took the waking staff member to finish cleaning but the Appellant’s evidence that it normally took him about 3 hours, that is until around 1 a.m. appears plausible.

However, our finding that Home 2 was operated in such a way that, for a period of time, the waking staff member could not be present in the middle floor office does not necessarily mean that sub-finding 2(b) was entirely mistaken. In our view, the crucial issue concerns the door of the middle floor office, in particular the Appellant’s reason for closing it at night.

According to Home 2’s manager’s note of the informal conversation with the Appellant, he was asked why he closed the door at 2 a.m. upon returning to the office. His response was that “the upstairs light is always off to discourage [a young person] from coming out of his room” (p.71). The manager did not respond to the Appellant’s description of normal lighting practice on the middle floor. According to the note, the next thing the manager said was, “did you record the activities for the night?”.

The note of the Appellant’s interview with the manager describes a slightly different reason for his decision to close the office door. According to the note, the Appellant did not say that the office door was normally closed. Here, his words suggest that it was his decision to close the door but for the same reason as given in the conversation, which was to avoid distracting a young person. The manager then referred to an instruction said to have been given to the Appellant on 5October 2020 to keep the door open at night to safeguard children who displayed sexualised behaviours. Assuming that such an instruction was in fact given, it implies that, normally, the office door would be shut at night (or at least that it was not consistently kept open as a matter of policy). Otherwise, the manager would not have needed to give the Appellant a specific instruction to keep the door open for a specific reason. The LADO minutes also report the manager’s statement that staff are expected to work in the office “with the door open at all times”. Again, if that was the required practice, why did the manager need to instruct the Appellant on 5 October 2020 to keep the office door open in order to safeguard young people who displayed sexualised behaviour? It could be explained by the Appellant having been known to keep the office door closed, against Home 2’s policy, but there is no evidence that that was the case and, if it were the case, would surely have been mentioned in the management report.

Home 2’s management report into the events of 6/7 November 2020 is a detailed examination of the incident. However, it makes no mention of the manager having given the Appellant a specific instruction on 5 October 2020 to keep the office door open to safeguard children who displayed sexualised behaviours. We find this surprising because, on our analysis, if such an instruction were given, the Appellant’s failure to have followed would have been a more damaging allegation than any of the others made against the Appellant regarding his work at Home 2. The LADO minutes also contain no mention of a specific instruction not to shut the office door which, again, we find surprising. Instead, what both the management report and LADO minutes refer to is the Appellant’s alleged breach of Home 2’s general policy that the office door should always be kept open at night.

In our judgment, DBS erred in law in their analysis of the evidence by failing to take into account a relevant consideration namely that neither the management report nor the LADO minutes state that the Appellant was given a specific instruction that the office door should be kept open to safeguard the two young people involved in the incident on 6/7 November 2020.

With the exception of the interview record, which is partially consistent with the Appellant’s other evidence, his written and oral evidence has been consistent: the normal nighttime practice at Home 2 was for the office door to be kept shut in order to maintain darkness in the corridor outside the children’s rooms.

We find that DBS made a mistaken finding of fact that the Appellant was instructed on 5 October 2020 to keep the office door open in order to safeguard young people who displayed sexualised behaviour. We found the Appellant’s denial in oral evidence that he was given such an instruction credible because it was consistent with the weight of the written evidence. The instruction is only mentioned in the interview record which, as explained above, we treat with caution. Neither the management report nor the LADO minutes make any mention of this instruction. We find that surprising since, as we have said, the allegation that the Appellant ignored the instruction was particularly damaging and, if true, led directly to the incident that was the only reason for a management report having to be written, and a LADO meeting having to be held. No one apart from Home 2’s manager claims that the Appellant was given a specific instruction to keep the office door open at night for a specific purpose. As we have said, the manager’s other statements about open door practices are inconsistent with the claim that the Appellant was given this specific instruction. In evaluating the credibility of the manager’s claim to have given the Appellant a specific instruction, we also take into account the manager’s contradictory statements to the LADO meeting about how much time staff were expected to devote to nighttime cleaning duties.

Next, we consider the finding that the Appellant failed to follow a general instruction that, at Home 2, the office door was to be kept open at night. Such an instruction (or expectation) is referred to in the LADO minutes although, in the case of the first LADO meeting, it is described as part of a safeguarding strategy that included night staff finishing their cleaning by 10 p.m. which, as we have said, we do not accept was the case. The management report describes the Appellant’s reasons for closing the office door but does not say that, by doing so, he acted contrary to established procedures at Home 2. We find that surprising. We also find it surprising that the manager did not put it to the Appellant in interview or conversation that he had failed to follow Home 2’s policy that the office door was to be kept open at night. For instance, according to the informal conversation record the manager asked the Appellant ‘why did you close the office door?’ and he replied to discourage a young person from leaving his room. If there was a general policy, that had been communicated to the Appellant, that the office door was to be kept open all night, the obvious next question would surely have been something like ‘why didn’t you follow our policy that the office door is to be kept open all night?’. While this was styled as an informal conversation, that did not prevent the manager from asking the Appellant about his knowledge of other policies (e.g. ‘are you aware…you are supposed to read their paperwork?’). We note that the manager’s interview with the Appellant took place on 18 November 2020. By this time, the LADO meeting had been informed by Home 2’s manager that all night staff were expected to remain in the middle floor office all night, and this was described as a general expectation rather than a practice instituted in response to the incident on 6/7 November 2020. Despite that, the interview note does not record the Appellant being asked to explain why he failed to follow Home 2’s policy that the office door should be kept open all night.

In our judgment, DBS erred in law, in its analysis of the evidence, by failing to take into account the features of the evidence described in the previous paragraph of these reasons.

If there was a general policy at Home 2 that the office door should be kept open all night, with the waking staff member in situ, we would have expected it to have been referred to in one of the internal Priory Group documents relating to the incident. It was only referred to in external documents (LADO minutes). We would also have expected the manager to ask the Appellant why he failed to comply with the policy, but she did not. And, if there were such a policy, its purpose would have been nullified by the requirement for the waking staff member to carry out cleaning activities on the ground floor during which it would have been impossible to also be in the middle floor office with the door open. For these reasons, we find it is more likely than not that the Appellant was not informed that, at Home 2, there was a policy that the office door was to be kept open all night. It follows that, by closing the office door at night, the Appellant cannot have failed to follow safeguarding and monitoring procedures.

The next breach of safeguarding and monitoring procedures relied on by DBS concerned hourly checks. At the hearing, Mr Serr, for DBS, seemed to concede that the Appellant was not under a standing instruction to carry out hourly checks of the young people during his night shift. That was consistent with the information provided to the LADO meeting by Home 2’s manager. The manager informed the LADO meeting that “visual observations throughout the night” are only required “only…when incidents or behaviours have occurred to warrant it to avoid institutionalising the children unnecessarily”. There is no evidence that the Appellant was required to carry out visual observations throughout the night / hourly of the two young people concerned. Since hourly checks were only required if specifically instructed, the Appellant’s failure to carry out such checks cannot have been a failure to follow Home 2’s safeguarding and monitoring procedures. DBS’ finding that the Appellant, by failing to carry out hourly checks, failed to follow safeguarding and monitoring procedures at Home 2, was irrational given the almost total absence of supporting evidence (the only evidence in support was the Appellant’s but he was not responsible for deciding on the content of Home 2’s safeguarding and monitoring procedures). Accordingly, DBS erred in law by finding that he did so fail. Mr Serr argues that it does not matter whether hourly checks were required because the Appellant falsely claimed to have performed hourly checks. We do not accept this. The alleged breach of safeguarding procedures relied on by DBS was the failure to carry out hourly checks. If hourly checks were not required, the Appellant cannot have failed to follow safeguarding procedures by not doing hourly checks.

DBS also found that the Appellant’s failure to check that a young person had returned to their bedroom, after using the toilet, was a breach of Home 2’s safeguarding and monitoring procedures. There is no evidence that night staff at Home 2 were under a standing instruction to perform a visual check after a young person had used the toilet at night, to ensure that they had returned to their bedroom. It follows that DBS erred in law in finding that the Appellant’s failure to perform a visual check was a breach of safeguarding and monitoring procedures. Given the absence of evidence to the contrary, we find that Home 2’s safeguarding and monitoring procedures did not require the waking might staff member to carry out a visual check of a young person’s room whenever the toilet was used at night.

The final matter is the finding that the Appellant failed to follow safeguarding and monitoring procedures by not making any records of his activities on the night of 6/7 November 2020. The Appellant accepts that he made no records that night. At the hearing, the Appellant’s counsel conceded that not being able to find a pen was a weak excuse. In our view, this amounts to a concession that finding 2(b), insofar as it relates to record keeping, was not mistaken. We also take into account that we found the Appellant’s oral evidence about his reasons for not making records particularly lacking in credibility and evasive. For example, Upper Tribunal Member Smith had to ask the Appellant three times whether he asked the sleeping staff member for a pen and each answer, it seemed to us, was designed to avoid answering the question.