[2025] UKUT 221 (AAC)

Finding 2 consists of two sub-findings. Sub-finding 2(a) is that the Appellant failed to support service users in line with their care plans. Sub-finding 2(b) is that the Appellant failed to follow safeguarding and monitoring procedures.

In relation to sub-finding 2(a), it is true, as the Appellant argues, that the young people’s care plans have not been put in evidence (no party applied for an Upper Tribunal direction to require disclosure of the care plans). In one sense, therefore, the Appellant makes a sound argument that DBS could not have made a legitimate finding that he failed to provide support in line with the young people’s care plans when DBS did not know the content of those plans. However, if DBS’ decision letter is read as a whole, it is clear that what they really meant by sub-finding 2(a) was that the Appellant could not have supported the young people in line with their care plans because he failed to take proper steps to obtain them, and that is how we approach finding 2(a).

In the Appellant’s informal conversation with Home 2’s manager, he reportedly said ‘no’ when asked if he had read the boys’ paperwork and, in the subsequent interview, reportedly said he was not given the opportunity to sign the young people’s paperwork. Since that is consistent with the Appellant’s oral evidence, we accept the records as accurate in these respects.

The general impression conveyed by the interview record and management report is that it was the Appellant’s sole responsibility to ascertain the contents of the young people’s care plans. However, the information given to the LADO meeting said something different. The minutes say that “when new bank staff come in…documentation is provided…such as [young people’s] risk assessments and support plans” and “staff must read and sign to confirm they have read all the paperwork”. Surely, a signed document such as this would be retained for some period of time, but no such document was provided with the Appellant’s referral to DBS nor to the LADO, and we have not been provided with any document showing that the Appellant was presented with ‘paperwork’ about the young people, which he signed to confirm it had been read. The management report also makes no mention of such a document. We can discount the possibility that the Appellant was presented with the paperwork but refused to read it (no reasonable social care provider would not allow such a person to continue to work for them). That leaves two possibilities. One is that the document containing the Appellant’s signed confirmation that he had read the paperwork was not retrieved for inclusion in the management report of 14 December 2020 or LADO referral. The other is that proper procedures were not followed in the Appellant’s case.

In our judgment, DBS erred in law in their analysis of the evidence by failing to take into account the absence of any documentary evidence that, in the Appellant’s case, proper procedures for ensuring that staff were appraised of young people’s care plans were followed. That was a relevant consideration that should have been factored into DBS’ fact-finding analysis.

We consider it more likely than not that, in the Appellant’s case, the absence of a document of the type just described is explained by proper procedures not having been followed at Home 2 rather than an administrative oversight in failing to retrieve such a document. The incident at Home 2 was considered very serious, demonstrated by the LADO referral and rapid convening of a multi-agency LADO meeting. Had there been a document evidencing that the Appellant was provided with, and had read, the young people’s care plans, we are sure that a copy would have been included amongst the papers supplied to the LADO. Nothing in the LADO meeting minutes suggests that such a document was supplied by Home 2. On the contrary, the LADO minutes state that the Appellant did not “complete this form” (p.91), but without making any associated statement to the effect that the Appellant was provided with the paperwork / care plans but refused to read them or refused to sign the form. We also find it telling that Home 2’s management report itemises fifteen “sources of evidence” without mentioning any documentary evidence that the Appellant had been provided with the young people’s care plans (p.81).

We should add that we were not convinced by the Appellant’s oral evidence that, at the start of each night shift at Home 2, he asked in vain to see the young people’s care plans. This was not mentioned until a late stage in proceedings. Had the Appellant’s attempts to see care plans been persistently rebuffed as described in his oral evidence, we are sure it would have been mentioned in either the informal conversation or interview with Home 2’s manager (the Appellant does not argue that he made this point to Home 2’s manager but she omitted to include it in her notes). It is more likely than not that, in this respect, the Appellant’s oral evidence was a misguided attempt to bolster his case. However, this cannot affect our finding that, in the Appellant’s case, normal procedures for ensuring that night staff were appraised of young people’s support needs were not followed.

As we have said, we read DBS’ sub-finding 2(a) as a finding that the Appellant failed to take proper steps to obtain the young people’s care plans. In our judgment, that finding involved an error of law, and it was a mistake of fact. The most the Appellant could reasonably have been criticised for is failing to recognise that normal procedures had not been followed, and for failing to raise that with Home 2’s management. We do not consider that to be capable of amounting to ‘relevant conduct’ for the purposes of the 2006 Act since the primary responsibility for ensuring that bank staff were properly informed about the needs of young people must have been that of Home 2’s management.

Sub-finding 2(b) was that the Appellant failed to follow safeguarding and monitoring procedures. The failings identified by DBS were:

failing to keep the office door open during the night shift (decision letter);

failing to carry out hourly checks (decision letter);

failing to carry out a visual check after hearing a young person use the toilet at about 2.30 am (BDMP document);