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Analysis of Evidence: general
Analysis of Evidence: general
DL worked at a care home (‘the home’) with a number of service users who were vulnerable adults. Almost all of the evidence relied on by DBS was gathered in the course of an internal investigation at DL's workplace where JG was a resident. The investigation was triggered by an apparent disclosure by JG to her hairdresser on 23 September 2019. The hairdresser contacted a previous manager of the home who no longer worked there, who was called DB. The issue was brought to the attention of the home, which initiated an internal investigation. That investigation concluded that there was sufficient material for DL to be questioned at a disciplinary hearing, the investigation having concluded with a ‘reasonable belief’ that JG had given the correct version of events, and that DL had borrowed money, failed to pay all of it back, and asked to borrow more. DL declined to attend a disciplinary hearing and resigned.
Without exception, the documentation created in the course of that internal investigation is extremely weak evidence for a number of reasons. Many of the documents do not have headings, meaning that it is unclear what they are, whether notes or text from an email or a letter. Many documents are not dated. Many accounts seem to have been recorded days or weeks after conversations which they describe. Accounts are very short and lacking in detail. There were various inconsistencies between accounts. The investigation raised matters which plainly could and should have been investigated further, but were not. Overall it was a superficial and cursory investigation.
We have analysed in some detail all of the material before us. We note, and give weight to the fact that JG was concerned enough to confide in her hairdresser. We note, and give weight to the fact that JG was broadly consistent in the core of her assertion that DL had borrowed money, not paid some back and asked to borrow more. We divide our assessment of the evidence into documents relating to JG’s account, and documents relating to DL’s account. We have allocated numbers to documents to assist cross-referencing.
Documents gathered in the investigation relating to JG's account
- Heading
- The appeal is allowed
- Reasons for Decision
- ‘I acknowledge that those advising the appellant wish the Upper Tribunal to consider the issue of whether the respondent’s decision was proportionate
- The legislation
- Mistake of fact
- ‘Drawing the various strands together, we conclude as follows In those narrow but well-established circumstances in which an error of fact may give rise to an error of law, the tribunal has jurisdiction to interfere with a decision of the DBS under s
- In relation to factual mistakes, the tribunal may only interfere with the DBS decision if the decision was based on the mistaken finding of fact. This means that the mistake of fact must be material t
- In determining whether the DBS has made a mistake of fact, the tribunal will consider all the evidence before it and is not confined to the evidence before the decision-maker. The tribunal may hear or
- The tribunal has the power to consider all factual matters other than those relating only to whether or not it is appropriate for an individual to be included in a barred list, which is a matter for t
- The tribunal will not defer to the DBS in factual matters but will give appropriate weight to the DBS’s factual findings in matters that engage its expertise. Matters of specialist judgment relating t
- The starting point for the tribunal’s consideration of factual matters is the DBS decision in the sense that an appellant must demonstrate a mistake of law or fact. However, given that the tribunal ma
- ‘One way, but not the only way, to show a mistake is to call further evidence to show that a different finding should have been made. The mistake does not have to have been one on the evidence before
- ‘On the reasoning in PF, the decision of the DBS was therefore the starting point for the UT’s consideration of the appeal. JHB did not claim that DBS has erred in law. The UT could not exercise any p
- ‘28. I agree with the observation that there is no longer any point of legal principle raised by this appeal which requires determination by the court, but I do not accept that the parties are in agre
- Section 17
- Analysis of Evidence: general
- Document 1 at page 59
- Document 2 p69
- Document 3 p70
- Document 4 p 71
- Document 5 page 29 This is the investigating officer’s report and we make the following observations
- Document 6 p47
- We make the following observations about that material
- Document 7 care records
- We noted the following significant relevant information
- Our conclusions about reliability relating to JG
- Documents gathered in the investigation relating to DL's account Documents 8, material relating to the disciplinary proceedings
- Document 9, p28
- Document 10. Notes of interview of DL by the investigating officer
- DL’s representations to DBS p75
- Document 11, representations from Citizens Advice 25th of February 2021
- Our findings in relation to DL's reliability
- Conclusions