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We noted the following significant relevant information
We noted the following significant relevant information:
The care plan is divided into sections. In each section of the care plan there is an overarching entry which sets out JG’s presentation and needs in relation to that particular area, such as memory, continence, nutrition etc. Those overarching entries are not dated. It appears to us that the overarching entry in each section would be updated with new information so that it was always a current record of the service user’s needs in that area. There follows in each section a series of dated reviews which we understand would record any significant change to the service users’ presentation or needs.
The overarching entry in the Memory and Understanding section records that JG had capacity. It says ‘has a very good understanding of everything and can recall all conversations’. The same section goes onto to record 'JG can appear confused at times’. It is not possible to tell from the face of the records whether that entry was made when JG first went to the home at the end of 2018, or whether it was updated at some later point. It is not possible to say from the records therefore whether that entry about confusion was made before or after JG had made the allegation relating to DL in September 2019.
Review entries in 2019 are inconsistent about JG’s memory. They record ‘can forget things at times’ on 6 November 2019 but ‘does not demonstrate any concerns with memory and understanding’ on 7 December 2019 (p132).
DBS’s evaluation of the evidence at the time of the decision, when they did not have these care records, included a finding that ‘DL claims that JG gets confused however this is contradicted by the home who accepted her account as credible confirming she has capacity’ (p87). DBS's submission to the Upper Tribunal maintains that emphasis, submitting that JG ‘had capacity during the period in which she made her disclosure’ (submissions p1673). That is beside the point. Capacity is plainly not the same as an absence of confusion. A person can have full capacity but still from time to time be very confused and mistaken. If any evidence was needed of that, it is apparent on the face of the care records which at page 128 refer to JG as having full capacity but also as being confused.
- 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