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Document 1 at page 59
Document 1 at page 59.
These are notes of a conversation between JG and the investigator. The date of this conversation was 27 September 2019, so four days after JG had spoken to the hairdresser. The assertions made include that DL had borrowed money previously, that there was £20 outstanding from the previous amounts borrowed, and that she had asked to borrow more money but no further money had been lent. We make the following observations about this document:
The document is headed witness statement and is signed by JG. It is in note form and appears to be a verbatim record of a conversation in some parts, and a summary of conversation in other parts.
The investigator begins with a leading question (‘I am just going to ask you a few questions about that money that one of our staff has borrowed from you, is that ok?’).
There are only six questions, which are cursory and there is no probing of the witness’ account, or follow up questions.
There are some details tending to show that the witness was clear enough in her thinking to be able to make correct mathematical calculations (‘probably getting on for £100, there is £20 outstanding, she has paid £80 back’).
There is a striking absence of detail in other respects. For example JG does not say how much DL asked to borrow recently.
JG appears to be saying that DL requested money from her on Monday at 8:20pm (although that is not clear). The implication is that it was the Monday just before this conversation. If so that would be Monday 23 September. That cannot be right as other documents show that the hairdresser reported the allegation on 23 September around 7:30pm.
There is evidence of JG being confused when questioned. Part of the notes read ‘Q has she pressured you to borrow money? A She came in one night about 8:20 after the other girls had gone home. Another lady called Joan from the old building, she (Joan) made her pay it back’. The answer does not make sense when considered on its own, and does not appear to relate to the question which had been asked.
This account would flag to a competent investigator a number of other avenues of investigation including finding out who Joan was and what she knew, looking at shift patterns to see whether DL was on duty or in the home on 23 September at the time given.
Overall this is a wholly unsatisfactory document which can be given very little evidential weight.
- 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